General Terms and Conditions for the Sale of Used Cars

Non-binding recommendation of the Zentralverband Deutsches Kraftfahrzeuggewerbe e. V. (ZDK) Status: 01/2022

I. Conclusion of contract/transfer of rights and obligations of the buyer
1. The buyer is bound by the order for a maximum of 10 days, for commercial vehicles up to 2 weeks. The purchase contract is concluded when the seller confirms acceptance of the order for the specified object of purchase in text form within the periods specified in each case or carries out the delivery. However, the seller is obliged to inform the orderer immediately if he does not accept the order.
2. Transfers of rights and obligations of the buyer arising from the purchase contract require the seller’s consent in text form.
This does not apply to a claim of the buyer against the seller directed at money.
For other claims of the buyer against the seller, the prior consent of the seller is not required if the seller has no legitimate interest in an exclusion of assignment or legitimate interests of the buyer in an assignability of the right outweigh the legitimate interest of the seller in an exclusion of assignment.

II. Payment
1. The purchase price and prices for ancillary services are due for payment upon handover of the object of purchase and handover or sending of the invoice.
2. The buyer can only offset claims of the seller if the counterclaim of the buyer is undisputed or a legally binding title exists. This does not apply to counterclaims of the buyer arising from the same purchase contract. He may only assert a right of retention insofar as it is based on claims arising from the same contractual relationship.

III. Delivery and delay in delivery
1. Delivery dates and delivery periods that can be agreed as binding or non-binding must be specified in text form. Delivery periods begin with the conclusion of the contract.
2. The buyer can, ten days, in the case of commercial vehicles two weeks, after exceeding a non-binding delivery date or a non-binding delivery period, request the seller to deliver. The seller shall be in default upon receipt of the request. 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 wants 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 deadline in accordance with section 2, sentence 1 of this section.
If the buyer is entitled to damages 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 independent professional activity when concluding the contract, claims for damages are excluded in the event of slight negligence. If, while the seller is in default, delivery becomes impossible by chance, the seller shall be liable subject to the limitations of liability agreed above. The seller shall not be liable if the damage would have occurred even if delivery had been made on time.
4. if a binding delivery date or a binding delivery period is exceeded, the seller shall be in default as soon as the delivery date or the delivery period is exceeded.
The rights of the buyer are then determined in accordance with clause 2, sentence 3 and clause 3 of this section.
5. the limitations and exclusions of liability in this section shall not apply to damage caused by gross negligence or intentional breach of obligations on the part of the seller, its legal representative or its vicarious agent or 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 periods specified in clauses 1 to 4 of this section by the duration of the performance disruptions caused by these circumstances. If such disruptions lead to a delay in performance of more than four months, the buyer may 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 readiness. In the event of non-acceptance, the seller can make use of his legal rights.
2. If the seller demands damages, these amount to 10% of the purchase price. The compensation shall be set higher or lower if the seller proves higher damages or the buyer proves that lower damages or no damages at all have been incurred.
V. Retention of title
1. The object of purchase remains the property of the seller until all claims to which the seller is entitled under 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 independent professional activity when concluding the contract, the retention of title shall also remain in force for claims of the seller against the buyer arising from the ongoing business relationship until settlement of claims to which the buyer is entitled 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 adequate security for the remaining claims from the ongoing business relationship. For the duration of the retention of title, the right to possession of registration certificate part II belongs to the seller.
2. If the buyer does not pay the due purchase price and prices for ancillary services or does not pay in accordance with the contract, the seller can withdraw from the contract and/or demand damages instead of performance in the event of culpable breach of duty by the buyer if he has unsuccessfully set the buyer 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 a third party a right of use.

VI. Liability for material defects and defects of title
1. If the buyer is a consumer within the meaning of § 13 BGB, a reduction of the two-year limitation period for material defects and defects of title to no less than one year from delivery of the object of purchase to the buyer can only be effectively agreed if the buyer is specifically informed of the reduction of the limitation period before submitting his contractual declaration and the reduction is expressly and separately agreed in the contract. For material defects and defects of title in goods with digital elements, the provisions of this section shall not apply to the digital elements, but rather the statutory provisions.
2. 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 independent professional activity when concluding the contract, the sale shall be made to the exclusion of any claims for material defects and defects of title.
This exclusion does not apply to damage caused by grossly negligent or intentional breach of obligations by the seller, his legal representative or his vicarious agent or in the event of injury to life, limb or health.
3. If the seller has to pay for damage caused by slight negligence due to the statutory provisions, the seller is liable to a limited extent:
The liability exists only in case of violation of essential contractual obligations, such as those that the purchase contract wants to impose on the seller according to its content and purpose or whose fulfillment makes the proper execution of the purchase contract possible in the first place and on whose compliance the buyer regularly trusts and may trust. This liability is limited to the typical damage foreseeable at the time the contract was concluded. The personal liability of the legal representatives, vicarious agents and employees of the seller for damage caused by them through slight negligence is excluded.
This does not apply to damages resulting from a grossly negligent or intentional breach of obligations by the seller, his legal representative or his vicarious agent or in the event of injury to life, limb or health.
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 under the Product Liability Act shall remain unaffected.
5. If a defect removal is to be carried out, the following applies:
a) Claims due to material defects must be asserted by the buyer to 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 car workshop with the prior consent of the seller.
c) For the parts installed within the scope of a defect removal, the buyer can assert claims for material defects on the basis of the purchase contract until the expiry of the limitation period of the object of purchase. 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. The 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 regulations in section VI. “Liability for material defects and defects of title”, section 3 and 4 apply accordingly.
3. If the buyer is a consumer within the meaning of § 13 BGB and the subject of the contract is also the provision of digital content or digital services, whereby the vehicle can fulfill its function even without these digital products, the statutory provisions of §§ 327 ff BGB apply to these digital content or digital services.

VIII. Place of jurisdiction
1. For all present and future claims arising from the business relationship with merchants, including claims arising from bills of exchange and checks, 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, moves his domicile or habitual residence from Germany after conclusion of the contract or his domicile or habitual residence is not known at the time of filing the lawsuit. Otherwise, the place of jurisdiction for claims of the seller against the buyer shall be the buyer’s place of residence.

IX. Out-of-court dispute resolution
1. Car arbitration boards
a) If the car company carries the master sign “Master company of the car guild” or the basic sign “Member company of the car guild”, the parties can, in case 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 – call the car arbitration board responsible for the seller’s registered office. The appeal must be made immediately after knowledge of the point of dispute, at the latest one month after the expiry of the limitation period for material defects and defects of title according to section VI., by submitting a written statement (appeal) to the car arbitration board.
b) The decision of the Motor Vehicle Arbitration Board does not exclude 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 are governed by its Rules of Procedure, which will be provided to the parties by the Motor Vehicle Arbitration Board upon request.
e) Recourse to the Motor Vehicle Arbitration Board is excluded if legal action has already been taken. If legal action is taken during an arbitration procedure, the car arbitration board will cease its activities.
f) No costs are charged for using the car arbitration board.
2. Note according to § 36 Consumer Dispute Resolution Act (VSBG)
The seller will not participate in a dispute resolution procedure before a consumer arbitration board within the meaning of the VSBG and is also not obliged to do so.