A lot can go wrong during a test drive. What is the legal situation? © rh – attorney search service
For sellers and buyers of a car, a private test drive raises a number of legal questions: who is liable in the event of an accident?? How to protect against theft and hidden defects?
Again and again, accidents occur during test drives with vehicles for sale. This is not surprising: after all, the prospective buyer is driving a car whose dimensions and controls he is not yet used to and whose braking and acceleration behavior he does not yet know. On top of that, the test driver is often more focused on the vehicle than on the traffic. If, despite all precautions, an accident does occur, who pays for the damage?? And what if the prospective buyer drives off alone – and does not come back with the car? What should buyers look for to learn as much as possible about the vehicle??
Accident during the test drive: what does the insurance pay?
In the case of a private car sale, a test drive on public roads may only be carried out if the vehicle is still regularly registered. It must therefore be registered and necessarily have liability insurance. Driving without insurance is a criminal offense. The liability insurance covers the third-party damage, for example if the test driver hits another car. It does not bear the damage to the own vehicle.
The accident damage to the test vehicle is paid at most by fully comprehensive insurance. If the seller has taken out such a policy, its insurance conditions are decisive. Some insurance policies exclude coverage for all drivers except the vehicle owner, or for all drivers under 25 years of age. There is also often a deductible. In the case of fully comprehensive insurance, the premium increases after an accident. Deductibles and premium increases are also part of the damage to be borne by the person who caused the accident.
Gross negligence is, for example, driving under the influence of alcohol or a red light violation, but also driving without glasses required by the driver’s license. In such cases, fully comprehensive insurance will only pay to a very limited extent. This also applies if it turns out that the test driver does not have a driver’s license or a driving license. Did not have a driving license.
What the insurance does not pay, the test driver must pay, if he has caused the accident.
What applies when buying from a dealer?
If the seller is a dealer, he usually mounts red dealer plates on the car for the test drive. The dealer may use these for various vehicles, even if they are not registered. Liability insurance is also obligatory for the dealer.
it is often written that dealers usually have fully comprehensive insurance for test drives. Many customers rely on this. the reality is different: fully comprehensive insurance may be common at dealerships or larger car dealerships, but not at the many small "flag" dealers with small used car lots. Dealers are not required by law to carry comprehensive insurance.
The courts generally assume that there is a "tacit release from liability" on the part of the test-driving customer during a test drive at the dealership. This means that both parties tacitly agree that the customer is not liable in the event of an accident. But: dealers can waive this exemption from liability by pointing out to the customer that the car is not covered by comprehensive insurance. Then the customer must pay for the damage after an accident.
What do the courts say about the dealer’s duty of disclosure??
According to a ruling by the koblenz Higher Regional Court, customers of a car dealer can rely on the fact that the test vehicle has fully comprehensive insurance. This basic idea originates from the German Federal Supreme Court, which ruled in this way as early as the 1970s. There are no recent BGH rulings on this subject.
According to the Higher Regional Court of Koblenz, this means that if the car does not have fully comprehensive insurance, the dealer must inform the customer of this before the test drive. If the customer then drives anyway, he is liable for accidental damage himself. If the dealer has not informed the customer about the lack of fully comprehensive insurance, the dealer is liable (OLG koblenz, judgment of 13.1.2003, az. 12 U 1360/01).
Prospective buyers should find out from private and commercial sellers what insurance cover is available before the test drive. Negotiations can also be broken off if there is any uncertainty. Incidentally, several insurance companies now offer test drive insurance for less than 10 euros, which is valid for one day and can be taken out at short notice by prospective buyers. This is another way to insure yourself.
What are test drive agreements?
Both private and commercial sellers and buyers can reach a written agreement on liability during a test drive. Forms for this are available online. In most cases, it is agreed which person may drive the vehicle (with driver’s license data), how long the test drive may last, what condition the car was in before the test drive (previous damage) and, last but not least, of course, who is liable for what and how it is insured. A deposit can also be agreed. This is common practice with car dealers nowadays, especially for higher-value vehicles.
However, in practice it is highly questionable whether the seller will agree to an agreement that excludes the prospective buyer’s liability in the event of an accident. By the way: there is no exclusion of liability for damage caused by intent or gross negligence.
Car theft during the test drive
For the seller, an important precaution is to ask the prospective buyer to present his or her identity card before the test drive. He can also ask for the ID card or something else as a deposit or simply ride along with the test drive. The reason: it is not uncommon for alleged test drivers to disappear with the vehicle.
Although partial coverage insurance covers theft. Partial cover is included in comprehensive insurance. But: nevertheless, insurance coverage can be voided for two reasons:
First of all, legally this is not theft, but embezzlement. The perpetrator did not steal the vehicle from the owner against his will, but the owner entrusted it to him voluntarily for the test drive. However, misappropriation is not covered by most partially comprehensive insurance policies. It depends on the contract.
Secondly, the insurance cover can also lapse or be considerably reduced if the seller has made it too easy for the perpetrator. For example, the coburg regional court did not grant insurance coverage to a man whose motorcycle had been misappropriated during a test drive (az. 13 O 717/08). The man had entrusted the bike to the interested party without ascertaining his personal details. As a deposit, he had accepted a backpack that was supposed to contain identification papers, but was actually empty.
What should be considered when making a deposit?
The deposit left behind should of course not be in a closed backpack. It should correspond to the value of the offered vehicle. Above all, it should not be stolen. It is a popular scam of tricksters to offer a stolen vehicle as collateral. According to press reports, this is what happened in kassel in 2014: the test driver left a stolen motorcycle as collateral, went on a test drive in a VW passat and never returned. Here the seller could have first asked for the vehicle registration document of the bike.
What to check during the test drive?
You should look out for visible safety defects even before you start your journey. For example, worn tires or defective lighting can lead not only to a fine for the driver, but also to an accident. warning lights with symbols for engine or brake system should not be ignored.
For many types of cars, you can obtain information on the internet beforehand: you can often find reports on critical points of the vehicle in question, for example on typical defects, wear parts or rust spots, under the search terms "test report", "buyer’s guide" or "checklist".
During the test drive, it is advisable to make a stop for a close inspection of the vehicle, including the underbody. A flashlight is helpful. Check the exhaust, chassis and underbody for rust and look for oil dripping from the engine and transmission. You should also operate all doors and check all electrical and electronic functions and switches – for example, air conditioning, seat adjustment, electric outside mirrors and sunroof. A look into the engine compartment is also essential. Here should be a note from the workshop with the date of the last oil change. Are the levels of the fluids (coolant, brake fluid, hydraulic oil) as far as visible in the "green area"?? If there is any leakage of oil or any other liquid?
When driving, you can also check if the steering is spongy, the gearshift works cleanly and the brakes work well. When braking fully, you should always pay attention to the traffic behind the vehicle! Unusual noises can be an indication of damage. Drive slowly over smaller roads, then you will hear them better. It is also helpful to have the used car checked by the ADAC or a garage.
No test drive without valid license plates!
under no circumstances should you test drive a car without a license plate and registration or with a license plate that has been quickly attached to it from another car. Then there is no insurance coverage. Driving without insurance is a criminal offense. According to § 6 of the compulsory insurance law, you risk a fine or up to one year’s imprisonment. Misuse of license plates is also a punishable offense. According to § 22 of the road traffic act, a fine or imprisonment of up to one year is also threatened here.