–> by florian wehner – published on 5. December 2021
category: car purchase, contract of sale, traffic law, contract law
1. Buying a car on the internet
Over 6 million used vehicles are sold in germany every year. In the sale of used and new cars, the offer and sale via the Internet is playing an increasingly important role. However, many people only really start thinking about the (legal) particularities of a car purchase on the Internet when the purchase has already been made and is now to be reversed, for example because the buyer is not satisfied with the vehicle received or it has a defect.
In our article on the rescission of the car purchase, we have already described the conditions under which a contract of sale can be concluded rescission due to the presence of a material defect is possible. Of course, these requirements also apply to the purchase of a car over the Internet – but here there are additional special features or requirements. Things to consider in addition.
2. Conclusion of contract on the internet
the conclusion of a purchase contract on the internet is achieved – as is always the case with contracts – by the submission of two concurring declarations of intent regarding the subject matter of the contract (subject matter of the purchase and purchase price). In principle, this also applies on the internet:
- A contract for the purchase of a car can also be concluded informally (also verbally over the telephone). A specific form (written form, text form) is not required. Nevertheless, a textual or. Written confirmation makes sense for reasons of proof.
- Since the conclusion of the contract with the submission of contract offer and acceptance of contract If a contract of sale is concluded, the contract is not deemed to be concluded and legally binding only when the car seller hands over the car to the buyer or the buyer receives the car. This may or may not be the case – the circumstances of the individual case are decisive.
When exactly does a binding conclusion of a contract in the case of an internet purchase, it is not possible to make a general statement – this depends on the circumstances of the individual case. However, this question is particularly important with regard to the rights of the buyer, for example for a withdrawal from the purchase contract.
If a car is offered for sale via a brokerage website that only describes the external conditions, the.H. if you provide the website for offering a car, the purchase contract is not concluded with the operator of the website, but with the person who offers the car there. Unfortunately, it is not possible to make a generally valid statement about the exact point in time at which the contract is concluded on the brokerage platforms either. In most cases, however, the (binding) conclusion of the contract takes place during the buyer’s visit to the Internet site and not only when the car is handed over.
In the case of an online auction, for example via the auction platform ebay, the contract for the auctioned item comes into effect at the moment that the highest bidder receives the final award. This is generally true even if the auction price is very low because the seller has not set a minimum price. If you cancel an auction prematurely as a seller, you are bound to the bid of the highest bidder to date. Even a purchase price offered above the minimum bid of 1 euro is binding in such a case, according to the Federal Court of Justice (urt). V. 12.11.2014 – az. VIII ZR 42/14).
many online platforms often provide only one possibility to place a sale ad with a sale offer ("digital classified ad"). The purchase in such a case regularly sets a further contact before and is then often concluded in the context of this contact of the seller with the buyer (by e-mail, personal meeting).
3. online purchase: revocation due to distance selling
If the purchase is to be made online and "at the click of a mouse", the seller or the customer must inform the seller of the purchase. The operator of the online platform to make this explicitly known. Most of the time, the purchase contract is only concluded by a "purchase confirmation" from the seller to the buyer’s request. The offer on the Internet is therefore in many cases not yet legally binding and is merely an advertising promotion, similar to the display of goods in a shop window.
In the case of a purchase on the internet, there is regularly the right to revoke the contract due to the existence of a distance selling transaction. However, this only applies in the case of a private purchase from a dealer or. entrepreneurs on the internet (so called. Verbrauchsguterkauf – i.e. neither a purchase between private persons nor in B2B business transactions).
in this case the buyer has a two-week right of revocation (§§ 312g, 355 BGB). The seller must inform the buyer comprehensively about this right of withdrawal in the case of a purchase of consumer goods via the Internet. If the cancellation policy if this is not done or not done to a sufficient extent, the cancellation period is extended by a further 12 months. The withdrawal must be declared to the seller in text form (letter, fax, e-mail). A mere return of the car is not (any longer) sufficient for a revocation.
Important: in 2 cases there is no right of withdrawal according to remote sales:
- If contact is made via the internet or telephone, but the actual conclusion of the contract does not take place via remote means of communication (internet, e-mail, telephone), but, for example, at a subsequent meeting with subsequent conclusion of the contract, revocation due to distance selling is ruled out. the conclusion of the contract itself must therefore take place "online" or over the phone, so that a distance selling revocation can be declared.
- If the car sold is specially configured for the buyer, e.g. an individual entrance for the disabled is installed, there is also no right of remote cancellation, as the car can usually no longer be sold after it has been returned. However, this does not apply to the case that a car is configured online only with standard components – in this case a revocation is possible.
4. Exclusion of warranty: "sold as described
If the buyer is not satisfied with the purchase, for example because the car is damaged, it is possible to (also) assert warranty rights due to the existence of a material defect in addition to any warranty agreement that may have been concluded. In the case of a used car purchase from a businessman, the seller’s warranty obligation for material defects may not be shorter than 1 year. In the case of purely private purchases, a complete exclusion of warranty is possible.
However, warranty claims for internet purchases often fail because the purchaser is not aware of any pre-existing damage (e.g., a defect in the product).B. paint scratches) agreed to at the time of purchase. If a damage is sufficiently described, for example in an auction on ebay, and the prospective buyer bids on this car anyway, he cannot claim afterwards that the vehicle has damages. The situation is different, of course, for damage that is not listed in the description of the car.
the sale of an imported vehicle must regularly be disclosed by the seller, as the country of origin can be a price-forming factor.
5. observe the seller’s general terms and conditions
For the buyer, it is always advisable to read the general terms and conditions (GTC) of the seller or the customer. To read the brokerage platform carefully before buying. The seller must clearly indicate his general terms and conditions and provide the customer with the insight BEFORE the conclusion of the contract enable. If the terms and conditions were not sufficiently pointed out or if they were sent after the conclusion of the contract, they do not become part of the contract.
Agbs are subject to the General terms and conditions check, d.H. The legal requirements of § 305 ff. BGB. This means that any provisions that are completely surprising or disadvantageous to the buyer will not be part of the contract.
For sellers with their registered office abroad, the question arises as to the applicable law – the seller’s terms and conditions often contain a corresponding choice of law provision. If a choice of law, as a rule, the law of the buyer’s usual place of residence shall apply. This applies at least if the website is geared towards a sale in this state (z.B. German-language website). Here too, however, the following applies: not every choice of law provision is effective.
6. Financing agreement, transfer costs and down payments
If, in addition to the purchase of a car financing contract offered, the financing represents a separate contract conclusion with another contractual partner, which must also be carefully examined. In the event of a revocation, the question then arises as to whether the financing agreement can be rescinded.
The adoption of transfer costs for the car bought on the internet by the buyer must be contractually agreed. In any case, it should be clear at the time of purchase who will pay for the transfer of the car.
A down payment before receiving the car always represents a certain risk for the buyer: in such a case, the buyer bears the insolvency risk of the seller. If the seller becomes insolvent after the sale and before delivery of the car, the buyer will not see his money again. Even a revocation does not help.
7. conclusion and practical tip
The revocation / withdrawal from the car purchase on the Internet is legally complicated. First of all it should be checked if, when and how a contract of sale was concluded – because from this depends which rights the buyer is entitled to. The seller must point out the right of revocation due to distance selling as well as the agbs he uses. This is where "pitfalls" often lurk for the seller, for example because the information about the right of revocation was insufficient or the inclusion of the general terms and conditions is invalid. It is advisable for the seller to follow a sample cancellation policy, which can be downloaded from the federal Ministry of Justice, for example. again: better go to a lawyer for traffic law or contract law beforehand!
As the number of car purchases via the Internet increases, so does the number of frauds or scams. From "black sheep" among the sellers. Therefore: read the terms and conditions of the contract carefully, do not enter into a contract in haste, exercise increased caution with particularly low-priced offers. Because new "tricks" are constantly cropping up to "pull the wool over the eyes" of buyers who are often talkative and inexperienced in business.