Selling on the internet: platforms like ebay make it easy and fast to turn old treasures into money. but private sellers run the risk of being held liable for material defects. © getty images / uwe umstaetter, screenshot stiftung warentest (M)
On ebay or in online classifieds you can get rid of old things. We explain to private sellers how to exclude liability with correct private sale clauses.
The old myth of the "new EU law
there are still many nonsensical private sale clauses on ebay. "according to current eu law, i have to point out: this is a private sale, which means that no return or exchange can be granted," writes ebay user alelauf in his offer of a landline telephone, for example. He thus wants to protect himself from claims by dissatisfied buyers. But its wording is likely to be ineffective.
Private sellers must also comply with the law
It applies: private sellers do not have to point to anything. And it’s also wrong that you can’t make any warranty or guarantee. On the contrary: according to the law, they must also be liable for flawless goods. And: from 1. january 2022 onwards the liability for material defects tightens a bit more. details below under "item and defects correctly describe".
After all, it’s true: there’s no right to exchange or take back a bag in a private sale – no matter if it’s on a flea market, on ebay or in the classifieds.
exclusion of liability for defects possible
In the case of private sales, however, deviating agreements on liability are permissible. However, it is not what the seller wants or is able to do that matters, but what he offers – and what the buyer agrees to.
avoid other trouble with and on ebay
With these liability clauses you do everything right
Ebay-user catrob_de makes it before. In his offer of a used photo bag he writes: "the sale takes place under exclusion of any warranty." the consequence: if there is something wrong with the bag, he does not have to make subsequent performance or refund the purchase price.
Even if the former "warranty" in the law has long been called "liability for material defects" – the wording is unambiguous and therefore court-proof. Further explanations, such as that catrob_de sells as a private person, are superfluous.
Who on the other hand unclear or misleading formulated, carries the full legal material defect liability. This means: the seller is responsible for two years from delivery, that the goods are as good as the buyer can expect from the description of the item. From 1. from january 2022 onwards, the following also applies: the purchased item must be objectively suitable for its usual use and have the usual quality.
Effective private sale clauses – used goods
if you do not want to be liable for defects when selling used goods, you have to exclude liability for material defects. The correct formulation is:
"i exclude any liability for material defects."
This is clear. Sellers should add to be on the safe side:
"the liability for damages due to injury to health, body or life and grossly negligent and/or intentional breaches of my duties as a seller remains unrestricted."
This is important when sellers offer something for sale every now and then. The disclaimer appears as a general condition of business also for private persons, as soon as they use it or want to use it for three or more offers. For such general terms and conditions, stricter conditions for the exclusion of liability for defects apply. It is ineffective as a whole if the supplement to claims for damages is missing.
effective private sale clauses – new goods
even when selling individual new goods, private individuals can exclude liability in the same way as for used goods. The correct wording here is also:
"i exclude any liability for material defects."
However, if someone offers something for sale three times with the same wording for the exclusion of liability, the wording is considered a general business condition with which he cannot completely exclude the liability for defects for new goods, but can only limit it to one year from delivery (bundesgerichtshof, judgement of 04.02.2015, file no: VIII ZR 26/14).
Effective private sale clauses – multiple sale of new goods
Our suggested wording of a clause for repeated sales of new goods is:
"i limit the liability for defects to one year from delivery of the goods. the liability for damages due to injury to health, body or life and grossly negligent and / or intentional violations of my duties as a seller remains unrestricted."
Describing articles and defects correctly – this is how it works
Depending on the goods, the exclusion of liability is of varying importance. rule of thumb: the more valuable the object, the more expensive it can be to have to answer for defects. If you sell a used car, you run the risk of having to pay for a new engine if the old one gives up the ghost soon after delivery.
The buyer must always prove to a private seller – unlike a dealer – that the defect was already present at the time of delivery. However, since even preliminary stages of engine damage can lead to liability for material defects, this does not always help. The risk remains high. If the case goes to court, there will be additional legal fees and attorney’s fees.
Tip: good legal protection insurance protects you from the financial risks of a legal dispute (compare legal protection insurance).
All information must be correct
In addition, many sellers do not realize that what is written in the description of the item must also be correct. Otherwise you are liable even if you have excluded liability for material defects.
This experience was made by a berlin ebay seller. He had advertised his old motorboat as a "beautiful hiking boat" for "longer discovery tours". In fact it was not seaworthy because of moldy wood parts. The consequence: despite the exclusion of liability, the buyer gets his money back, unless the seller still manages to repair the boat.
Federal Court of Justice, judgement of 19.12.2012
case no: VIII ZR 96/12
If you do not know whether and to what extent the offered item functions, disclose this. Using the example of a decommissioned computer: "i used the computer until a year ago. It worked without problems. I don’t know whether it still works now and whether the security updates that have been released in the meantime can be installed.or for an electrical appliance: "i found the appliance in my parents’ attic and never used it myself". I do not know if it works."
Item description must be clear
Buyers may only rely on the item description if it is unambiguous. even an incorrect type designation such as "opel adam slam" instead of the correct "opel adam jam" is not necessarily binding if the seller has effectively excluded liability for material defects.
Federal court of justice, judgment of 27.09.2017
Case number: VIII ZR 271/16
Important: present product defects correctly
Conversely, if weaknesses and defects are correctly described in the item description, buyers must be satisfied with the goods. A defect is only present if the goods are worse than the buyer could have expected. Typical traces of use therefore do not usually trigger material defect rights, provided the seller does not advertise used items as new or as good as new. However, if the seller knows that the goods are not usable or only usable to a limited extent, he must make that clear.
Slightly stricter liability as of 2022
From 1. January 2022 sellers are liable even if they and the purchasers have not given any thought to a specific use of the purchased item. According to a change in the law, the offered item is also defective if it does not meet objective criteria such as usability or usual condition. To describe it correctly then becomes a bit more important. However, the possibility to exclude liability does not change.
Do the security check
Check whether your old items may have been defective from the beginning. Some examples: