Anyone who discovers a defect (Mangel) in a used car can, under § 437 BGB, in principle demand subsequent performance (Nacherfüllung) and, if this fails, withdraw from the purchase contract (Rücktritt), reduce the purchase price (Minderung) or claim damages (Schadensersatz). Which of these rights actually applies depends decisively on whether the car was bought from a dealer or privately and whether the defect already existed at the time of handover.
When buying a used car in particular, different interests collide: buyers expect a roadworthy vehicle free of accident damage, while sellers like to point to wear and tear or the age of the car. The law provides a clear framework for this, which has been tightened in several respects since the reform of sales law (Kaufrechtsreform) on 1 January 2022.
What legally counts as a defect in a used car?
Under § 434 BGB, a material defect (Sachmangel) exists if, at the time of handover, the vehicle does not have the agreed quality (vereinbarte Beschaffenheit) or is not suitable for ordinary use. The law distinguishes between subjective requirements, i.e. what was agreed in the purchase contract, and objective requirements, i.e. what a buyer can usually expect of a vehicle of this kind.
Classic examples are a concealed accident damage, a manipulated mileage, a defective gearbox or a turbocharger that does not work. Mere wear and tear (Verschleiß) corresponding to the age and mileage, on the other hand, does not in principle count as a defect. A vehicle with 120.000 kilometres may therefore have worn brake discs without this constituting a material defect.
The decisive point is always the time of handover (Übergabe). If a defect only appears months later, the buyer must prove that its cause already existed beforehand, unless the reversal of the burden of proof (Beweislastumkehr) under § 477 BGB applies.
Subsequent performance: repair or replacement
The first step in the event of a defect is subsequent performance (Nacherfüllung) under § 439 BGB. The buyer can choose whether the seller remedies the defect or delivers a defect-free replacement vehicle. With a used, unique item, replacement is usually ruled out in practice, so repair is the main option.
The seller bears the costs of subsequent performance, i.e. transport, labour and material costs. If the repair fails twice or the seller refuses it, there is no need to set a further deadline under § 440 BGB.
When can buyers withdraw from the purchase contract?
If subsequent performance fails, the buyer has the right of withdrawal (Rücktritt) under § 437 no. 2 in conjunction with § 323 BGB. In a private sale, the prerequisite is in principle that a deadline for rectification was previously set without success. If a consumer buys from a dealer, since 2022 it is sufficient under § 475d BGB that the dealer does not remedy the defect within a reasonable time after being notified. Withdrawal results in the purchase contract being unwound: the buyer returns the car and the seller refunds the purchase price.
However, the buyer must accept a deduction for compensation for use (Nutzungsentschädigung) for the kilometres driven. This is usually calculated using the formula purchase price multiplied by kilometres driven, divided by the expected remaining mileage of the vehicle.
Withdrawal is excluded if the defect is only insignificant, § 323 para. 5 sentence 2 BGB. A simple scratch in the paintwork therefore does not justify unwinding the entire purchase contract, whereas a concealed significant accident damage does.
Reduction of the purchase price
Instead of withdrawing, the buyer can reduce the purchase price (Minderung) under § 441 BGB. This option is appropriate if the car is to continue to be used despite the defect. The reduction is made in the proportion in which the value of the defect-free vehicle stands to its actual value with the defect.
An example: if a defect-free used car costs 15.000 Euro and an unrepaired gearbox defect reduces its value by 3.000 Euro, the buyer can reduce the purchase price by one fifth and reclaim a corresponding amount if he or she has already paid.
Damages for defects
In addition to withdrawal and price reduction, damages (Schadensersatz) under §§ 437 no. 3, 280, 281 BGB may be considered. This requires that the seller is responsible for the defect or the failed subsequent performance, whereby the law presumes this under § 280 para. 1 sentence 2 BGB and the seller must exonerate himself. Recoverable items include, for example, repair costs, hire car costs during the period of downtime or a loss in value caused by the defect.
If accident damage was fraudulently concealed (arglistig verschwiegen), the seller is liable under § 444 BGB even if an exclusion of warranty (Gewährleistungsausschluss) was agreed in the contract. A person acts fraudulently if he or she knows of the defect or at least considers it possible and conceals it, as does a person who makes statements without any basis, for example describing a vehicle as accident-free without knowing this.
Limitation and exclusion of warranty in private sales
Claims for defects relating to movable items such as vehicles are in principle time-barred (Verjährung) two years after handover, § 438 para. 1 no. 3 BGB. When a used item is sold by a business to a consumer, this period can be shortened to one year if the buyer was specifically informed of this before the contract was concluded and the reduction is expressly and separately agreed, § 476 para. 2 BGB.
Difference between buying from a dealer and buying privately
If a consumer buys from a commercial dealer, the law on the sale of consumer goods (Verbrauchsgüterkaufrecht) under §§ 474 et seq. BGB applies. A complete exclusion of warranty is invalid here, § 476 para. 1 BGB. In addition, within the first year after handover the buyer benefits from the reversal of the burden of proof (Beweislastumkehr) under § 477 BGB: if a defect becomes apparent within this period, it is presumed that it already existed at the time of handover. The dealer must then prove that this was not the case.
- Private sale: exclusion of warranty possible, no reversal of the burden of proof - Dealer sale: exclusion not permitted, reversal of the burden of proof for one year, withdrawal without formal deadline under § 475d BGB - Fraudulent intent (Arglist): liability exists in both constellations
This different starting position often determines whether a claim can be successfully enforced at all.