withdrawal from the contract of sale for used cars – legal basis
car bought used: is there a right of return for buyers?
used cars are extremely popular on the german automotive market. The Federal Motor Transport Authority, based in flensburg, Germany, recorded a total of october 2016 just over 599.000 car ownership records. In all these cases there was a change of ownership. This figure is offset by slightly more than 262.700 new registrations – that is, the first registration of a brand-new vehicle – in the same period vs.
Demand is mainly for young used cars, are these nevertheless mostly still very good condition and almost state of the art in terms of technology. Thanks to the large loss in value of new vehicles within the first year after initial registration, buyers also benefit from comparatively low prices. Here the customer can only win, or?
But unfortunately, many pitfalls also lurk when buying a used car. It is not uncommon for a buyer to be given defects become apparent after a short time or he realizes that the vehicle is not suitable for everyday use because there is not enough space in the passenger compartment. He may even find a better equipped car at a lower price. Can anyone in a situation like this or similar simply return a used car? what rights do buyers have? In the following guide, we take a closer look at the complex subject of "return policy for used cars".
FAQ: right to return a used car
bought is bought and a contract of sale in any case binding. Cancellation of the car purchase is therefore only possible under certain conditions. Whether you have such a right of return depends, among other things, on whether the seller was a company or a private person.
you normally only have a claim for return if the car has a defect and this defect already existed before the conclusion of the contract. In this case, the purchaser can demand its removal and, if necessary. Withdraw from the contract.
Private sellers usually contractually exclude liability for any defects – and thus also a possible right of return. However, the buyer can contest the contract if the seller has deliberately concealed defects.
Basic information on the right of rescission for used cars
By way of introduction, it is important to point out the following: many consumers assume that after the purchase for 14 days a general return policy for used cars exists. However, this is widespread misconception. If you buy a car from a dealer, for example, you cannot simply return it and ask for a refund if you are not satisfied with it. Rather different conditions are met, so that the withdrawal from the purchase of a used car is possible.
Is the assumption correct that there is a fourteen-day right of return when buying a used car??
If we would like to approach the answer to the question, when a resignation of the sales contract is feasible with the used car, must be distinguished first of all, where resp. From whom the vehicle was purchased. There are three options here:
- you buy the vehicle from a business.
- you buy the car from a private person.
- The car purchase took place on the internet.
For these three possibilities exist different rules on the right of return for used cars. As a buyer, you should be aware of these in advance so that you are not negatively surprised if the worst comes to the worst.
please note: not only commercial vehicle dealers are entrepreneurs. In the case of car sales, this also includes persons who sell a car in the course of their self-employed or commercial activity. Sold so self-employed craftsman its service vehicle, so he is considered a businessman. This has important consequences for the buyer if he wants to withdraw from the purchase contract.
Right of return for used cars purchased from a dealer
When buying a car from a dealer or. in a car dealership you have to expect higher prices than if you buy a similar vehicle from a private person. But you will benefit from some advantages. Although there is no general right of return for used cars, bought from the dealer, but many car dealerships take a car sold shortly before for warranty reasons back in certain cases. A claim on this does not exist, this can be decided by each dealer for himself and depending on the individual case.
As a rule, however, it is not so easy to withdraw from the purchase contract for a used car purchased from a dealer, is not so easy. Certain conditions must be met and different steps to go through, so that you can return the car. Among other things, the right of withdrawal is only possible if the vehicle does not have the characteristics that were specified in the purchase contract.
If, for example, it was agreed there that the car has cruise control, when in fact this is not the case, there is a material defect according to § 434 of the civil code (BGB) before. Namely, it states:
- If it is suitable for the use presumed under the contract, otherwise
- If it is suitable for ordinary use and has a condition that is usual for things of the same kind and that the buyer can expect according to the nature of the thing.
used car purchased: whether there is a right of return depends, among other things, on what is stated in the purchase contract.
If this is the case, however, the right of return for used cars does not take effect immediately. Rather, you first have claim for the defect to be repaired and the vehicle to be restored to the condition stipulated in the purchase contract.
In our example case, the seller would have to sell the retrofitting a vehicle with cruise control. If this is not possible or if the dealer refuses to remedy the defect, you can claim the right of withdrawal, return the used car to the dealer and claim the purchase price back.
If the vehicle has the characteristics agreed in the contract, however, are other defects to complain about, other conditions have to be fulfilled in order to use the right of return for used cars: on the one hand, there has to be a considerable damage, on the other hand, the time when the defect occurred is important. These are the two issues we will now address.
Return used car due to significant defects
You can not immediately insist on the right to return the used car to the dealership if you find a defect. You can only withdraw from the purchase contract if the defect as considerably and cannot be classified as a mere trivial damage. However, when this is the case?
this question has already occupied many courts, the disputes between sellers and buyers had to clarify. Generally speaking, it can be said that a defect cannot be classified as substantial if it is can be removed by the buyer without much effort and the use of the car is not restricted by it. If, for example, only the radio is defective, there can be no question of a significant defect that would allow the right to return the used car to the dealer.
In court, in such cases of dispute, it is usually the expert opinion of a motor vehicle expert is decisive. The expert does not only take into account the lack itself, but also includes in his judgment the general condition of the vehicle, enter the mileage as well as the age. With newer cars, it is usually assumed that there is a significant defect rather than an older model.
When is a defect significant? ruling of the BGH
The BGH has made an important ruling on the right of return for used cars.
In May 2014, the Federal Court of Justice (BGH) in Karlsruhe – Germany’s highest court – issued an important ruling (az.VIII ZR 94/13) has been made for this purpose, when damage can be considered significant. In this way, he has also indirectly provided an indication of when the right of return may be claimed for existing defects in a used car.
In the case under discussion, a buyer had purchased a new vehicle from a car dealership, which had cost around 30.000 euro cost. After the handover several deficiencies came to light. Among other things the audible warning function of the parking aid did not work properly, because the sensors were not installed correctly and additionally an optical warning function was missing. As the attempts at improvement failed, the buyer demanded the return of the vehicle in exchange for a monetary payment, which the seller refused to make.
An automotive expert had determined that for the proper installation of the parking aid costs just over 1.950 euro were incurred – this would correspond to about 6.5 percent of the purchase price. In the previous hearings, the judges ruled that the materiality threshold, which according to the courts amounts to about ten percent of the purchase price, was therefore not reached. Thus, the damage was insignificant, which is why the rescission of the purchase contract was unjustified. Many other courts had also related this basis to the right of return for used cars.
After the first procedure failed, the affected party appealed and the case ended up before the BGH. There, contrary to the previous rulings, it was decided that, taking into account the individual case, in the case of a defect that can be remedied, then it can no longer be assumed that the defect is insignificant if the cost of remedying it is more than five percent of the purchase price. According to the BGH, an increase in the materiality limit above this value is not compatible with the rights of the buyer in the case of material defects.
Important factor: when did the defect occur??
If you want to return a used car that was purchased from a dealer and not from a private person, the time when the defects to be complained about occurred, of great importance. Before you can claim a right of return for a used car, you first have to observe warranty rules.
But what is the warranty, which also liability for material defects is called? This is a strengthening the rights of consumers. The customers should be able to assume that they will receive a defect-free vehicle or a vehicle with no defects. A vehicle that has the condition agreed in the purchase contract is handed over to you. At the time of handover, it must therefore be ensured that the car has no material defect according to § 434 BGB.
when does the right of return apply? Interested parties usually only hear good things about used cars at first, but defects can quickly cloud the picture.
In contrast to private sellers, entrepreneurs and dealers cannot completely exclude the two-year liability for material defects stipulated by law. In the case of used cars, however, these have the possibility to shorten warranty to one year. Most commercial sellers also make use of this right and stipulate this agreement in the sales contract.
As a condition for the liability for material defects to apply and consequently the right of return for a used car to be claimed, the defect has to be already known at the time of purchase resp. have presented to the takeover.
Within the first six months after the purchase it is generally assumed that the defect already existed when the vehicle was handed over. In such a case, the buyer is in a more promising position, since the seller then has to prove that the damage only occurred later. Such evidence can often prove to be difficult to obtain.
After the first six months however, the burden of proof then turns to the disadvantage of the buyer. From this point on, it is assumed that the defect arose after the purchase. Now the buyer is obliged to prove that the defect already existed at the time of the transfer of risk, which is usually the handover of the car. For this purpose, usually the opinion of an automotive expert necessary.
Warranty and guarantee – what is the difference??
In connection with the question of whether you can withdraw from the purchase contract when purchasing a used car, in addition to the warranty often also the concept of warranty called. Many consumers use these terms synonymously, however, they are different concepts, which cover different areas.
The warranty or. Liability for material defects is, as already mentioned, for dealers and other commercially acting sellers required by law and cannot be excluded, but only shortened. It is also important in the case of the right to return a used car, because in order for it to apply, there must actually be a material defect.
With the warranty on the other hand voluntary benefit, agreed between seller and buyer. There is therefore no obligation to take out such a policy. The used car warranty is often also called repair cost insurance. it protects the buyer in the event that work needs to be done on the car. Particularly when buying used cars, which are generally more susceptible to defects than new vehicles, many vehicle owners therefore decide to make use of the warranty.
However, it should be noted that do not compensate for all damage or. repairs are covered by the warranty. Which regulations are valid in your case can be found in the respective warranty conditions. There is no statutory provision stating which services must be covered by a warranty. However, it can be stated that consumables and wear parts, brake pads, for example, not included are. Also repairs after an accident are usually not covered.
Making use of the right to withdraw from a purchased used car: this is how you should proceed
Used cars: those who wish to withdraw from the purchase can only do so in certain cases.
In summary the following conditions exist, in order for buyers to have any possibility at all of claiming the right of return for used cars:
- The vehicle has one or more material defects: either the car does not comply with the conditions stipulated in the purchase contract or there is a significant defect, the repair of which will cost more than five percent of the purchase price.
- The defect was already present at the time of handover: the burden of proof lies with the seller for the first six months and then shifts to the purchaser.
However, before the return of the vehicle can be initiated after the purchase of a used car, further steps must first be taken. As a first measure, you are required to, to inform the seller about the defect.
This should be done without delay, as a rule, a time limit of 14 days, after you have noticed the defect, provided that. After this notification, however, the right of return for the used car does not exist immediately. In accordance with the basic principles of liability for material defects, you must now allow the seller sufficient time to remedy the defects at hand. According to the law, you as the buyer generally also have the right to replacement delivery – the provision of a vehicle that is free of defects – can be claimed. However, this possibility usually comes only for new vehicles in question. In the case of used cars, this is usually considered disproportionate, as it proves extremely difficult to find a similar car that has the same characteristics as the original one.
For this reason, in the case of used cars, you must first give the seller the right to rectification grant. How long the deadline the defects should be repaired, it is not possible to make a general decision. Rather it depends on the individual case: in the case of extensive, complex work, the period of time should be longer than in the case of defects that can be remedied with less effort. Only when the second attempt to rectify the defect fails or the seller finally refuses to do so, to have the defects repaired, you can finally use the right of return for used cars and the declare withdrawal from the purchase contract.
This is what you should do settle in writing and have the receipt of the letter acknowledged by the seller. Subsequently, the reversal take place. The used car is returned to the dealer and the dealer is then obliged to repair the refund purchase price. However, the full amount is usually not paid out. As a rule, the buyer has to compensate for the benefit caused by the use of the car up to the time of its return.
Court ruling on the right of return for used cars: vehicle with a new MOT
The German Federal Court of Justice (BGH) has ruled that the right of return for used cars can take effect immediately in some cases.
In the previous section, we described the steps buyers have to go through before they can insist on their right to return a used car. However, there are also cases where this effort is not justified. This was decided by the Federal Court of Justice in a ruling (az.VIII ZR 80/149), which was handed down in April 2015.
according to her lawyer, a woman with no technical knowledge had bought an opel zafira from a used car dealer at a total. The first registration of the vehicle was 13 years ago at that time. The car had a mileage of 144.000 kilometers and the purchaser paid a total price of about 5.000 euro.
The dealer justified this high sum with the fact that the car had only just passed the general inspection and so its good condition could be proven.
On the approximately 900-kilometer return trip from the used car dealer to his home However, if the engine of the vehicle fails several times. During the subsequent examination in a car workshop, it turned out that the car exhibited many different defects. This also included rusted-through brake lines – a dangerous defect that could have had devastating consequences.
The BGH ruled that the buyer could not be expected to accept it is unreasonable to expect the dealer to make attempts to remedy the defect, before you could claim the right of return for the used car. The reason given was that the car should not have passed the main inspection in the first place because, among other things, it was heavily infested with rust. In addition, the woman’s trust in the seller’s ability and reliability had been destroyed, which was why she did not have to accept the seller’s attempts to remedy the defect. Instead, it was entitled to the right, to withdraw from the purchase contract for the used car. The return could take place immediately.
Is there a right to return a used car from a private seller??
Now that we have clarified when there is a right of rescission when buying a used car from a dealer, we will now go into more detail on the extremely popular private purchase a. In the case of a commercial seller, customers benefit from the liability for material defects, but in return the prices are usually much higher.
When you buy a used car from a private seller, you can often be lucky and have a make a particularly good bargain. In return, however, the private seller can include a disclaimer in the purchase contract. If this is the case, a clause such as the following can be found in the contract:
The vehicle is sold without any liability for material defects. the exclusion of liability for material defects does not apply to claims for damages that are based on an intentional or grossly negligent breach of obligations by the seller or his vicarious agents, as well as to claims arising from injury to life, limb or health.
New used car: is there a right of return for a privately purchased vehicle??
If such or similar wording is included in the contract for the purchase of the car, then a private person is liable, in contrast to the seller acting commercially, not for damage to the vehicle that already existed before the purchase. The buyer acquires the vehicle as it was inspected and test-driven. This fact has a great importance on how the right to return the used car. In most cases, buyers do not have the right to return the car – either because they no longer like it or because defects have subsequently become apparent.
Due to the exclusion of liability for material defects, you cannot insist that any defects be rectified. Furthermore, a reduction of the purchase price is usually not possible. However, there are some exceptions to this rule. For example, it may be that the the private seller has assumed the guarantee for the existence of a certain characteristic of the vehicle.
If, for example, it was explicitly stated in the purchase contract that the total price of the car includes a car radio, but this is missing, then you have the right to rectification. the seller must then equip the vehicle with such a device.
However, there are also cases in which it is controversial, when it is actually a valid warranty promise in the contract and not just a non-binding price quotation. In this way, the statement "the car is one hundred percent in order."According to the ADAC, this is more likely to be the latter. There is no unanimous opinion in the courts as to whether information about a vehicle provided in a classified ad constitutes a warranty promise. Rather, a evaluation of the individual case made.
In addition to any warranty promises, a right of return for a used car may also exist if the seller has fraudulently concealed certain defects – so he knew about a defect, but deliberately did not inform the buyer about it. essential defects must be communicated to an interested party without being asked to do so and also to a direct inquiry must be answered truthfully. This also applies if the damage was caused to one of the previous owners and the owner informed the seller about it.
If warranty promises are not kept, the right to return the used car can be claimed under certain circumstances.
Be stated in the purchase contract misrepresentation which are considered essential and therefore have a significant influence on the purchase decision, buyers can usually immediately have the right to return the used car.
The seller can do not rely on the fact that the exclusion of liability for material defects was stipulated in the purchase contract. If the following values are misrepresented, you generally have the right to return a car, even if you purchased it from a private individual:
- year of manufacture
- Speedometer reading
- Initial registration
Is it possible to withdraw from the purchase of a used car from the internet??
The buying a car on the internet is becoming more and more popular. No wonder, since interested parties can compare cars from all over germany around the clock and find the best offers and prices – even without leaving the house. It is not uncommon, however, for interested parties to sign a purchase contract without even having inspected the vehicle or test-driven it. What is the right of return for used cars bought on the internet?, if you notice any defects after the purchase or if the vehicle does not meet your expectations?
Which legal basis is valid depends on the following, how exactly the purchase is made. On the internet you have different possibilities to buy a used car:
- distance selling transaction: this is the case when you buy the car directly with the click of a mouse. The operator of the internet site and the seller are one and the same person.
- Car exchanges: private individuals and dealers can list their vehicles here. The operator of the website only serves as an intermediary and establishes contact between the interested party and the seller, but is not the seller himself.
- auctions (z. B. on ebay): here, too, the platform serves merely as an intermediary between the seller and the buyer. The purchase contract does not have to be concluded separately, rather it is concluded at the moment the highest bidder is awarded the contract.
Can you return a used car bought on the internet??
In the last two cases – i.e. the car exchange and the auction via an online platform – do the following apply to the right of return for used cars? the same rules as for a purchase from a retailer, or. Private seller. If you have purchased the vehicle from a commercial dealer and the purchase contract was concluded in person and not by e-mail or telephone, you cannot simply withdraw from the purchase contract if you are not satisfied with the vehicle.
If defects are present, the seller is initially obligated to rectify defects. Only if the second attempt fails or a repair is refused, you can withdraw from the contract and return the vehicle.
Acquire the vehicle from a private person, this also applies to the initiation of a purchase via the internet the right to exclude liability. So the buyer has no general right of return for the used car.
Furthermore the seller not obliged to pay for existing defects – unless the defects were fraudulently concealed or a warranty was agreed upon for certain characteristics of the vehicle.
Right of withdrawal for used cars: only possible for distance selling transactions
However, the right of return for used cars is different if the purchase is made through a so-called distance selling has come about. But what characterizes such a transaction at all? The legal framework is § 312c abs. 1 of the German Civil Code (BGB):
Distance contracts are contracts in which the trader or a person acting in his name or on his behalf and the consumer use exclusively means of distance communication for the negotiation and conclusion of the contract, unless the conclusion of the contract does not take place within the framework of a distribution or service system organized for distance selling.
In the case of a distance selling transaction, the contract is not concluded by the buyer and seller meeting in person and being physically present at the same time at one and the same place. Rather if the interaction takes place through so-called means of remote communication. These include, according to § 312c abs. 2 BGB the following:
- Letters
- catalogs
- telephone calls
- Telecopies
- E-mails
- SMS
- Broadcasting and telemedia
The most common way of buying a car in this context is probably the conclusion of the contract at the click of a mouse. The great advantage of distance selling transactions is that buyers are granted special rights, since you usually cannot personally inspect the goods in advance. While there is no general, legally defined right to return a used car in the case of a conventional purchase, the situation is therefore different when a contract is concluded via the internet.
According to § 355 BGB, buyers benefit from a fourteen-day right of withdrawal from the purchase of a used car. However, this only applies if the vehicle is private purchase from a dealer. in the case of a purchase among private individuals, this possibility does not apply. In order for the revocation to be valid, it is not sufficient to simply return the vehicle. Instead you must first inform the seller in writing – i.e. by mail, e-mail or fax – inform about it. however, you are not obligated to give reasons.
the right to cancel a used car only applies to distance selling transactions.
In certain situations, the time limit for the revocation of the purchase contract may, however, be extended by 12 months. This is the case if the seller has given you not sufficiently informed about their right of revocation has. If sellers would like to protect themselves in this context, they should follow the wording of the requirements of the federal ministry of justice and consumer protection hold. It is essential to mention the following points:
- Note that the buyer can withdraw from the contract within fourteen days without giving any reason.
- mentioning the date from which the fourteen-day period starts to run.
- explanation of what the buyer has to do in order to exercise his right of revocation: his revocation must be in writing.
- note that it is sufficient to send the letter before the expiry of the fourteen-day period in order to comply with the time limit for revocation.
- enumeration of consequences of revocation: all payments must be refunded by the seller within 14 days after receipt of the letter of revocation. There is no charge for this.
As a buyer you should always check the cancellation notice thoroughly. If the contract is incomplete, the time limit is extended and you can exercise your right of withdrawal even after 12 months.
Important difference: revocation vs. Withdrawal
The terms "revocation" and "withdrawal" are often used synonymously in common parlance. However, as we have shown, there is a two different concepts. Contrary to popular belief, there is no general right of return for used cars purchased from a dealer or a private seller. Only in the case of distance selling, if, for example, the vehicle was purchased directly from a dealer on the internet at the click of a mouse and the website or portal did not merely establish personal contact between the two parties, buyers of used cars have a right of return fourteen-day right of withdrawal. this allows him to return the car without giving any reason.
Conclusion: there is a lot to consider when returning a used car
the right of return for used cars usually applies only in case of significant defects.
Contrary to popular belief, there are no general, legally securitized right of return for used cars. The rights of the purchaser depend largely on whether the vehicle was purchased from a dealer or a private individual and whether it was sold at a distance.
When buying a car from a private person, the chances are usually poor, to be able to return the car. Since private sellers are allowed to exclude liability, they are usually not responsible for repairing defects that arose prior to purchase.
Only if the buyer fraudulent concealment of defects can prove or in the purchase contract a warranty agreement made the used car may under certain circumstances be subject to a right of return.
Also at the purchase from a dealer you cannot simply return the vehicle. If there are any defects, they must first be remedied by the vendor. First if the latter refuses or the second attempt to repair fails, cancellation is possible. If, on the other hand, it is a telemarketing, buyers usually benefit from a fourteen-day right of revocation. During this period, you have the possibility to return the car without giving any reason and you will be reimbursed for the purchase price.
