Used Car Terms and Conditions of Sale (Motor Vehicles and Trailers)

Non-binding recommendation of the Central Association of the German Motor Vehicle Trade (ZDK)  As at: 01/2022
 

I. Conclusion of Contract/Transfer of Rights and Obligations of the Buyer 

1. The buyer is bound to the order for a maximum of 10 days, in the case of commercial vehicles for up to 2 weeks. The purchase contract is concluded when the seller confirms the acceptance of the order for the specified object of purchase in text form within the respective specified periods or executes the delivery. However, the seller is obliged to inform the customer immediately if he does not accept the order. 
 

2. Transfers of rights and obligations of the buyer under the purchase contract require the consent of the seller in text form. 

This does not apply to a claim by the buyer against the seller for money. 

The seller's prior consent is not required for other claims of the buyer against the seller if the seller does not have an interest worthy of protection in an exclusion of assignment or if the buyer's legitimate interests in the assignability of the right outweigh the seller's interest in an exclusion of assignment that is worthy of protection. 

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II. Payment 

1. The purchase price and prices for ancillary services are due for payment upon handover of the object of purchase and handing over or sending of the invoice. 

 

2. The buyer can only offset claims of the seller if the counterclaim of the buyer is undisputed or if there is a legally binding title. This does not apply to counterclaims by the buyer under the same purchase contract. He can only assert a right of retention if it is based on claims arising from the same contractual relationship. 

 

III. Delivery and Delay in Delivery 

1. Delivery dates and delivery periods, which can be agreed on a binding or non-binding basis, must be stated in text form. Delivery periods begin with the conclusion of the contract. 

 

2. The buyer may request the seller to deliver ten days, or two weeks in the case of commercial vehicles, after exceeding a non-binding delivery date or a non-binding delivery period. Upon receipt of the request, the seller is in default. If the buyer is entitled to compensation for damage caused by delay, this is limited to a maximum of 5% of the agreed purchase price in the event of slight negligence on the part of the seller. 

 

3. If the buyer also wishes to withdraw from the contract and/or demand damages instead of performance, he must set the seller a reasonable deadline for delivery after the expiry of the relevant period in accordance with section 2, sentence 1 of this section. 

If the buyer is entitled to compensation instead of performance, the claim is limited to a maximum of 10% of the agreed purchase price in the event of slight negligence. If the buyer is a legal entity under public law, a special fund under public law or an entrepreneur who is acting in the exercise of his commercial or self-employed professional activity when concluding the contract, claims for damages in the event of slight negligence 

impossible. 

If, while in default, the Seller becomes unable to deliver by chance, he shall be liable with the limitations of liability agreed above. The seller shall not be liable if the damage occurred even if the goods were delivered on time would. 
 

4. If a binding delivery date or a binding delivery period is exceeded, the seller is already in default when the delivery date or delivery period is exceeded. The rights of the buyer are then determined in accordance with Section 2, Sentence 3 and Section 3 of this section. 
 

5. The limitations and exclusions of liability in this section do not apply to damages that are based on a grossly negligent or intentional breach of obligations of the Seller, his legal representative or his vicarious agent as well as in the event of injury to life, limb or health. 
 

6. Force majeure or operational disruptions occurring at the Seller or its suppliers, which temporarily prevent the Seller from delivering the object of purchase on the agreed date or within the agreed period through no fault of its own, shall change the dates and deadlines specified in Sections 1 to 4 of this section by the duration of the disruptions in performance caused by these circumstances. If such disruptions lead to a deferral of performance of more than four months, the buyer can withdraw from the contract. Other rights of withdrawal remain unaffected. 

 

IV. Acceptance 

1. The buyer is obliged to accept the object of purchase within eight days of receipt of the notification of availability. In the event of non-acceptance, the Seller may exercise its statutory rights. 

 

2. If the seller claims damages, this amounts to 10% of the purchase price. The damages are to be assessed higher or lower if the seller proves a higher damage or the buyer proves that less damage or no damage at all has occurred. 

 

V. Retention of title 

1. The object of purchase shall remain the property of the seller until the claims to which the seller is entitled on the basis of the purchase contract have been settled. 
 

If the buyer is a legal entity under public law, a special fund under public law or an entrepreneur who is acting in the exercise of his commercial or self-employed professional activity at the time of conclusion of the contract, the retention of title also applies to claims of the seller against the buyer arising from the ongoing business relationship until settlement of claims due in connection with the purchase. 

At the request of the buyer, the seller is obliged to waive the retention of title if the buyer has incontestably fulfilled all claims in connection with the object of purchase and there is appropriate security for the remaining claims arising from the ongoing business relationships. 

During the period of retention of title, the seller has the right to possess the registration certificate Part II. 

 

2. If the Buyer does not pay the due purchase price and prices for ancillary services or does not pay them in accordance with the contract, the Seller may withdraw from the  contract and/or claim damages instead of performance in the event of a culpable breach of duty by the Buyer, if the Buyer has unsuccessfully set a reasonable deadline for performance, unless the setting of a deadline is dispensable in accordance with the statutory provisions. 

 

3. As long as the retention of title exists, the buyer may neither dispose of the object of purchase nor contractually grant third parties any use. 

 

VI. Liability for material defects and defects of title 

1. If the Buyer is a consumer within the meaning of Section 13 of the German Civil Code (BGB), a shortening of the two-year limitation period for material defects and defects of title to not less than one year from the date of delivery of the object of purchase to the Buyer can only be validly agreed upon if the Buyer is specifically informed of the shortening of the limitation period before submitting his contractual declaration and the shortening is expressly and separately agreed in the contract. 
For material and legal defects in goods with digital elements, the provisions of this section do not apply to the digital elements, but the statutory regulations. 

2. If the buyer is a legal entity under public law, a special fund under public law or an entrepreneur who, at the time of conclusion of the contract, is acting in the exercise of his commercial or self-employed professional activity, the sale shall be made to the exclusion of any claims for material defects and defects of title. 

This exclusion does not apply to damages based on a grossly negligent or intentional breach of duties of the seller, his legal representative or his vicarious agent as well as in the event of injury to life, limb or health. 

3. If the seller has to pay for damage caused by slight negligence on the basis of the statutory provisions, the seller's liability is limited: 

Liability exists only in the event of a breach of essential contractual obligations, such as those that the purchase contract is intended to impose on the seller according to its content and purpose, or the fulfilment of which makes the proper execution of the purchase contract possible in the first place and on the compliance of which the buyer regularly relies and may rely. This liability is limited to the typical damage foreseeable at the time of conclusion of the contract. 

The personal liability of the seller's legal representatives, vicarious agents and employees of the company for damages caused by them through slight negligence is excluded. 

This does not apply to damages that are based on a grossly negligent or intentional breach of duties of the seller, his legal representative or his vicarious agent, as well as in the event of injury to life, limb or health. 

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4. Irrespective of any fault on the part of the seller, any liability of the seller in the event of fraudulent concealment of a defect, from the assumption of a guarantee or a procurement risk and after the 

Product Liability Act. 

 

5. If a defect is to be rectified, the following applies: 

a) The buyer must assert claims due to material defects against the seller. In the case of verbal notifications of claims, the buyer must be given a confirmation of receipt of the notification in text form. 

 

b) If the object of purchase becomes inoperable due to a material defect, the buyer can contact another master motor vehicle company with the prior consent of the seller. 

 

c) For the parts installed as part of a defect remedy, the buyer may assert material defect claims on the basis of the purchase contract until the expiry of the limitation period of the purchased item. 

Replaced parts become the property of the seller. 

 

VII. Liability for other claims 

1. For other claims of the buyer that are not regulated in Section VI "Liability for material defects and defects of title", the statutory limitation periods apply. 

 

2. Liability for delay in delivery is conclusively regulated in Section III "Delivery and Delay in Delivery". For other claims for damages against the Seller, the provisions in  Section VI "Liability for Material Defects and Defects of Title", Sections 3 and 4 shall apply mutatis mutandis. 

 

3. If the buyer is a consumer within the meaning of Section 13 of the German Civil Code (BGB) and the subject of the contract is also the provision of digital content or digital services, whereby the vehicle can also perform its function without these digital products, the statutory provisions of Sections 327 et seq. of the German Civil Code apply to this digital content or digital services. 

 

VIII. Place of jurisdiction 

1. For all present and future claims arising from the business relationship with merchants, including bills of exchange and cheque claims, the exclusive place of jurisdiction is the registered office of the seller. 
 

2. The same place of jurisdiction applies if the buyer does not have a general place of jurisdiction in Germany, if he moves his domicile or habitual place of residence out of Germany after the conclusion of the contract, or if his domicile or habitual abode is not known at the time the action is filed. In all other respects, the place of jurisdiction for claims by the seller against the buyer is the place of residence. 
 

IX. Out-of-court dispute resolution 

1. Motor vehicle arbitration boards 

a) If the motor vehicle company bears the master plate "Master Company of the Motor Vehicle Guild | Meisterbetrieb der Kfz-Innung" or the basic sign "Member Company of the Motor Vehicle Guild | Mitgliedsbetrieb der Kfz-Innung", the parties may appeal to the motor vehicle arbitration board responsible for the seller's registered office in the event of disputes arising from the purchase contract for used vehicles with a permissible total weight of not more than 3.5 t - with the exception of the purchase price. The appeal must be made immediately after knowledge of the point in dispute, at the latest one month after the expiry of the limitation period for material and legal defects in accordance with Section VI by filing a written statement (notice of appeal) with the motor vehicle arbitration board. 

b) The decision of the motor vehicle arbitration board does not preclude legal recourse. 
 

c) By appealing to the motor vehicle arbitration board, the limitation period is suspended for the duration of the proceedings. 
 

d) The proceedings before the Motor Vehicle Arbitration Board shall be governed by its Rules of Procedure and Procedure, which shall be handed over to the parties by the Motor Vehicle Arbitration Board upon request. 
 

e) Appeal to the motor vehicle arbitration board is excluded if legal recourse has already been taken. If legal recourse is taken during arbitration proceedings, the motor vehicle arbitration board ceases its activities. 
 

f) No costs are charged for the use of the motor vehicle arbitration board. 

 

2. Notice in accordance with Section 36 of the Consumer Dispute Resolution Act (VSBG) 

The seller will not participate in dispute resolution proceedings before a consumer arbitration board within the meaning of the VSBG and is not obliged to do so.

These terms and conditions have been translated automatically. We do not guarantee their accuracy. In case of doubt, the original German version shall prevail.