Used car bought privately: Does “no warranty” override a specific promise?

What the BGH decided about the private sale

A private seller sold an almost 40-year-old car for EUR 25,000. The advertisement stated: “The air conditioning works perfectly.” It also excluded liability for defects. After handover, the system did not work. In court, the buyer sought half of his repair costs.

The BGH considered the general exclusion valid, but not applicable to the agreed condition of this component. Otherwise, the promise would have little practical value. Neither the age of the car nor the component’s susceptibility to wear changed that conclusion. An additional guarantee or fraudulent misrepresentation was not required for this finding (paragraphs 17 to 24 and 38 to 41).

A description is not automatically a binding agreement

The BGH requires a clear case before finding an agreement on a particular characteristic. The advertisement, messages, discussions and contract must be considered together. In this case, the seller knew that the air conditioning was particularly important to the buyer. Not every general advertising statement automatically becomes a binding promise (paragraphs 27 and 30 to 32).

The judgment concerns a purchase made in 2021. For current purchases, section 434(2), first sentence, no. 1 of the German Civil Code expressly identifies the agreed characteristics as a subjective requirement. Separately, section 444 protects buyers where defects have been fraudulently concealed or a guarantee of quality has been given. Reviewing a specific agreement therefore must not end with the question of whether deliberate deception can be proved.

The condition at handover still matters

Section 434(1) of the German Civil Code refers to the transfer of risk. For the used car handed over in the situation discussed here, the relevant condition is its condition at handover. A failure noticed later does not by itself prove that the car was already defective then. However, the BGH held that an existing cause inconsistent with the agreement may suffice even if the actual loss of function occurs later (paragraphs 43 to 49).

Our own hypothetical example: before purchase, a private seller expressly confirms that both heated seats work. A few days later, one remains cold. Our review would separate two questions: was that function bindingly agreed, and can the defect be traced to a condition already present at handover? Neither the “no warranty” clause nor the early appearance of the problem alone answers both questions.

Do not rush into commissioning repairs

Section 437 of the German Civil Code distinguishes repair or replacement, rescission or a price reduction, and damages. Each remedy has its own conditions. Before commissioning a workshop and seeking reimbursement from the seller, clarify whether the seller must first be given an opportunity to remedy the defect. For damages in lieu of performance, section 281(1) generally requires a reasonable deadline to have been set and to have expired without performance.

A serious and final refusal to perform may remove the need for a deadline under section 281(2). By contrast, merely asking for an acceptable proposal to resolve the problem was insufficient as a deadline in the BGH case (paragraphs 51 to 52). Whether the seller’s response is final must be assessed from its complete wording and the course of events.

What happened after the case was remitted

The BGH did not itself award money in 2024. Limburg Regional Court subsequently heard the workshop owner involved in the repair. After taking evidence, it found that the car’s condition at handover did not comply with the agreement. On 21 March 2025, it ordered the seller to pay EUR 1,753.17 plus EUR 280.60 in pre-litigation legal costs, both with interest (3 S 124/22, operative part and reasons II. 1 to 6).

The buyer had already limited his repair claim to half of the cost. The court considered no further deduction necessary. This establishes neither a general right to the entire workshop bill nor a fixed reimbursement rate of 50 per cent. Permission to appeal on points of law was refused; this account does not rely on a separate confirmation that the judgment is final.

Documents that help with the assessment

This article concerns a genuine private sale. If you buy as a consumer from a business, additional protections under sections 474 and 476 of the German Civil Code apply. The permissibility of an exclusion of liability must then be assessed separately.

Our practical recommendation: preserve evidence of the technical condition and the parties’ agreement before repairs where possible. Discuss necessary diagnosis and evidence preservation with the workshop. If there are safety concerns, have the vehicle professionally checked before using it further. Helpful documents include:

• The complete dated advertisement and the features promised.
• The sale agreement, messages and details of discussions and the test drive.
• Handover date, mileage, photographs and when the first fault appeared.
• The workshop diagnosis, estimate, removed parts and the seller’s responses so far.