End-of-life company cars are often real bargains for used car buyers. However, there has been one catch for consumers so far: it was often unclear whether the contracts were fully protected by the law on the sale of consumer goods. In a decision from July 13, 2011 (Ref.: VII ZR 215/10), the BGH has now provided clarity in favor of consumers.
In this particular case, a married couple had bought a seven-year-old used car from a printing company, a GmbH. Due to rattling noises in the engine compartment, which were not due to normal wear and tear, the couple wanted to withdraw from the contract a short time later.
According to the judges, a rescission due to fraudulent misrepresentation was out of the question because it could not be proven that the seller knew about the rattling noises and had deliberately concealed them during the sale. This left the option of withdrawing from the purchase contract.
The prerequisite for this is a defect in the purchased item at the time of handover. The buyer would actually have to prove that the defect existed from the outset. However, if a consumer buys from an entrepreneur, this so-called burden of proof is reversed for the first six months after handover. The couple invoked this. And they were proved right.
The BGH stated that this facilitation of proof could not be reduced by a limitation of liability in this case either. This is because even if the sale of goods to consumers - as is the case here with a printing company - is only a secondary business of the company, the full consumer protection law must regularly apply.
But be careful: in the case decided by the BGH, the couple still ended up with nothing. This is because they had failed to set the seller a reasonable deadline for subsequent performance. However, the consumer must always give a commercial seller the opportunity to remedy a defect by replacing or repairing the product.
