Car purchase what to consider when buying a new car

Car purchase what to consider when buying a new car

Anyone who buys a new car often accepts the higher initial depreciation in order not to have to pay for possible old burdens of the previous owner. But it is not only since the "VW scandal" that defects in new cars have been a matter for the courts. The following article is intended to shed light on the most important legal issues in connection with the purchase of a new car.

Liability for material defects on the part of the dealer

After the purchaser has taken delivery of the vehicle from the dealer, he can assert claims against the seller for two years on account of a material defect under the statutory liability for material defects. This period may not be exceeded in the case of the sale of consumer goods – i.E., in the case of a contract between a dealer. A private individual – does not fall below. If the purchase is not a consumer good, liability can be contractually shortened to one year. However, this requires an express agreement between the parties.

This distinction between the two types of contract also plays a decisive role in the burden of proof. Since the vehicle must already have been defective at the time of handover in order to assert liability for material defects, the buyer must generally prove that the defect was already present at the time of handover. However, in the case of a consumer goods purchase, it is presumed for the first six months after acceptance of the vehicle that the defect was already present at the time of handover.

The defect as a prerequisite.

Fundamental – and actually self-evident – for the application of the statutory liability for material defects is that a material defect exists at all. Here, however, there is not infrequent disagreement in legal disputes. In principle, a material defect always exists if there is a difference between the agreed condition and the actual condition. Even minor damage to a new item justifies its rejection. The refusal of the purchase price payment by the buyer. If the seller incurs additional costs as a result, he must bear these costs himself (BGH, ruling of 26.10.2016, Az. VIII ZR 211/15).

There was particularly intense discussion about whether standing times before initial registration constituted a defect if this was not specifically agreed in the contract. The courts ruled in two cases that this was not the case. The Higher Regional Court (OLG) of Hamm dismissed the action of a woman who demanded the reversal of her purchase contract for a Mercedes CL 500. She was not entitled to any claim because the Mercedes sold as a new vehicle was not defective when it was handed over to her (OLG Hamm, judgment of 16.08.2016, Az. 28 U 140/15). A car produced in 2011 could still be sold as a new vehicle before expiry of the one-year period in 2012.

In a similar case, the Federal Court of Justice (BGH) also ruled that a standing period of more than one year prior to initial registration does not constitute a material defect of the vehicle (BGH, judgement. V. 29.06.2016, Az. VIII ZR 191/15).

The "right of second offer" as an important pillar

Within the scope of subsequent performance, the purchaser may, at his option, demand the elimination of the defect (rectification) or the delivery of a defect-free vehicle (subsequent delivery). This choice is subject to the principle of proportionality. Therefore, the seller may refuse the type of subsequent performance chosen by the buyer if it is possible only at disproportionate cost.

The dealer can therefore either carry out a repair or replace the defective parts. In this case, the buyer has a right to use original spare parts and new parts.

The seller shall bear all costs associated with the rectification of defects, such as z. B. Towing costs to the nearest authorized repair shop, repair-related materials, and travel costs to and from the repair shop to carry out the repairs. In short, the buyer of a new car is entitled to demand, in the case of defects, that the vehicle has the quality of factory new following the rectification of defects (BGH, judgment of 06.02.2013, Az. VIII ZR 374/11).

In the event of a subsequent delivery, an aggrieved consumer need not in principle pay compensation for the use of the defective vehicle (LG Regensburg, judgment of 04.01.2017, Az.: 7 O 967/16).

Withdrawal and reduction.

If the supplementary performance fails, if the deadline set by the buyer for supplementary performance has expired unsuccessfully or if a deadline is dispensable because the seller has refused, the buyer may either demand rescission of the purchase contract or reduce the purchase price. This also applies if, despite efforts, the defect has not been remedied. In a ruling by the Higher Regional Court of Frankfurt am Main, a well-known car manufacturer was ordered to take back a new car and refund the purchase price. The car was defective because the occupants did not feel comfortable in it due to rattling noises (OLG Frankfurt, judgment of 28.02.2013, Az. 3 U 18/12).

In the case of rescission, the buyer must in principle compensate for the advantage gained from the use of the vehicle until its return. The BGH calculates the benefit of use taking into account the gross purchase price, the kilometers driven and the expected total mileage of the vehicle.

The reduction has the same requirements as the withdrawal. The reduced amount is to be determined by way of estimation. It is always a case by case decision. In the event of a dispute, an expert must be called in for this purpose to determine the reduction amount.


If the seller delivers a defective vehicle, the buyer can also claim damages in addition to rescission. However, fault on the part of the seller is necessary for damages to be awarded. This fault is currently the subject of various legal disputes in connection with the "VW exhaust gas scandal" and is therefore worth a separate blog post (Part II) for us.

In any case, the buyer can claim damages if the seller does not perform or performs defectively and the buyer has given the seller a reasonable period of time to perform or remedy the defect

If you would like advice on the purchase of a vehicle, we will be happy to help you at any time.

Created by: Attorney Marc Sturm, Law firm Sturm, Dr. Körner& Partner in Aichach, in cooperation with cand.

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