Material defect In the ensuing legal dispute, the dealer defended himself on the grounds that he himself had obviously been deceived when he bought the used car. As a car dealer, he had not been able to determine the speedometer manipulation. In addition, he had not guaranteed the buyer the mileage mentioned in the Internet ad. Because it was not noted in the contract of sale. The buyer therefore has no right to withdraw from the contract. But the judges of the Düsseldorf Higher Regional Court did not want to agree with that. They gave the complaint of the bruised feeling buyer instead of. If the odometer of a vehicle sold as a used car shows a significantly reduced reading compared to the actual mileage, the court found that there is a material defect that entitles the buyer to withdraw from the contract. "This is because a buyer of a used car can regularly assume that a mileage statement made without restriction refers to the total mileage that is decisive for him," said the judges. The defendant car dealer can also not refer to the fact that in the sales contract to the mileage of the vehicle no information was given. Namely, whoever as a dealer in an (Internet) ad specifies the mileage of a motor vehicle without a restrictive addition, must allow himself to be held to it even if this figure no longer appears in the subsequent purchase contract, the court said.
The judges also did not accept the car dealer's objection that a warranty exclusion had been agreed in the purchase contract, irrespective of the truth of this assertion. In their opinion, an agreement on the condition of a vehicle's mileage does not fall under the general exclusion of warranty, nor does it fall under the exclusion of warranty for unexamined accident traces or other defects. Rather, a mileage figure constitutes a warranty of condition against which a used car dealer must be measured. If the defendant car dealer had not wanted to vouch for the mileage he had stated, he should have made this sufficiently clear to the buyer, for example by pointing out to him that he had not checked the mileage. However, this did not happen. The buyer therefore has a right to rescind the purchase contract.
Getting justice without the risk of costs
Holders of a traffic legal protection policy do not have to bear the cost risk of a possibly necessary court case themselves in the event of trouble with a purchased vehicle. The legal protection insurance examines on the one hand whether at all chances of success exist, and gives then, if this is positively decided, an achievement promise. It takes over then among other things the resulting lawyer, court and possibly expert costs with contract problems around the motor vehicle. The insurance cover also applies to other disputes concerning the motor vehicle. For example, the enforcement of claims for damages and the clarification of the question of guilt after a traffic accident, but also the defense in a traffic violation – with the exception of parking and stopping violations.