Selling on the Internet: On platforms such as Ebay, old treasures can be easily and quickly turned into cash. However, private sellers run the risk of being held liable for material defects. © Getty Images / Uwe Umstaetter, Screenshot Stiftung Warentest (M)
On Ebay or in on-line classified advertisements one gets rid of old things. We explain to private sellers how to exclude liability with correct private sale clauses.
The old fairy tale of the "new EU law
Still many nonsensical private sales clauses can be found on Ebay. "According to current EU law, I must point out: This is a private sale, which means that no return or exchange can be granted," writes Ebay user alelauf in his offer of a fixed network phone. He wants to protect himself in this way from claims by dissatisfied buyers. But his formulation should be ineffective.
Also private sellers must adhere to the law
It applies: Private sellers must point to nothing at all. And it is also wrong that they can not take over any guarantee or warranty. On the contrary: According to the law, they must also be responsible for flawless goods. And: From 1. January 2022 on the Sach-mangelhaftung still something tightens up. Details on this below under "Article and defects correctly describe".
Nevertheless correct: A right to exchange or return does not exist with private sales – all the same whether on a flea market, with Ebay or with classified advertisements.
Exclusion of the material defect liability possible
In private sales, however, deviating agreements on liability are permissible. It is not what the seller wants or is able to do, but what he offers – and what the buyer agrees to.
Other trouble with and on Ebay avoid
With these liability clauses you make everything correct
Ebay user catrob_de shows how it is done. In his offer of a used photo bag he writes: "The sale takes place under exclusion of any guarantee." The consequence: If there is something wrong with the bag, he neither has to fulfill nor to refund the purchase price.
Even if the former "warranty" in the law has long been called "liability for material defects" – the wording is unambiguous and thus court-proof. Further explanations, for example, that catrob_de sells as a private person, are superfluous.
Who on the other hand formulates unclearly or misleadingly, carries the full legal material defect liability. This means: As a seller, he is responsible for two years from delivery, that the goods are as good as the buyer can expect from the description of the article. From 1. From 1 January 2022 onwards, the following also applies: The purchased item must be objectively suitable for its usual use and must have the usual quality.
Effective private sale clauses – used goods
If you do not want to be liable for defects when selling used goods, you must exclude liability for material defects. The correct formulation is:
"I exclude any liability for material defects."
That is clear. Sellers should add for safety’s sake:
"The liability for damages due to injury to health, body or life and grossly negligent and / or intentional violation of my obligations as a seller remains unrestricted."
This is important if sellers offer something for sale every now and then. The liability exclusion appears namely also with private people as general business condition, as soon as they use it or want to use it for three or more offers. For such terms and conditions, stricter conditions apply to the exclusion of liability for material defects. It is altogether ineffective, if the addition to claims for damages is missing.
Effective private sale clauses – new goods
Also when selling single new goods private persons can exclude the liability as with used goods. The correct formulation is also here:
"I exclude any liability for material defects."
However, if someone offers something for sale three times with the same wording for the exclusion of liability, the wording is considered a general business condition with which he cannot completely exclude the liability for material defects for new goods, but can only limit it to one year from delivery (Bundes-gerichts-hof, judgement of 04.02.2015, file no: VIII ZR 26/14).
Effective private sale clauses – multiple new goods sales
Our suggested wording of a clause for recalled sales of new goods is:
"I limit the liability for defects to one year from delivery of the item. The liability for damages due to injury to health, body or life and grossly negligent and / or intentional violations of my obligations as a seller remains unrestricted."
Describing articles and defects correctly – this is how it works
Depending on the goods, the exclusion of liability is of varying importance. Rule of thumb: The more valuable the object, the more expensive it can be to have to answer for defects. If you sell a used car, you run the risk of having to pay for a new engine if the old one gives up the ghost soon after delivery.
The buyer must always prove to a private seller – unlike a dealer – that the defect was already present at the time of delivery. However, since even preliminary stages of engine damage can lead to liability for material defects, this does not always help. The risk remains high. If the matter goes to court, there will be additional procedural fees and legal fees.
Tip: A good legal protection insurance protects you against the financial risks of a legal dispute (to the comparison legal protection insurance).
All information must be correct
Many sellers are also not aware that what is written in the item description must also be correct. Otherwise they are liable even if they have excluded liability for material defects.
This was the experience of a Berlin Ebay seller. He had advertised his old motorboat as a "beautiful hiking boat" for "longer discovery tours". In fact, it was no longer seaworthy due to mold-infested wooden parts. The consequence: Despite liability exclusion, the buyer gets his money back, unless the seller still manages to repair the boat.
Federal Court of Justice, Judgment of 19.12.2012
File number: VIII ZR 96/12
If you do not know whether and to what extent the offered item works, disclose that fact. Using the example of a computer that had been taken out of service: "I used the computer until a year ago. It worked without any problems. I don’t know if it still works now and if the security updates that have been released in the meantime can be installed."Or for an electrical device: "I found the device in my parents’ attic and never used it myself. I do not know if it will work."
Article description must be clear
Buyers may rely on the article description only if it is clear. Even an incorrect type designation such as "Opel Adam Slam" instead of the correct "Opel Adam Jam" is not unconditionally binding if the seller has effectively excluded liability for material defects.
Bundes-gerichts-hof, Judgment of 27.09.2017
Reference number: VIII ZR 271/16
Important: Present product defects correctly
Conversely, if weaknesses and faults are correctly described in the item description, buyers must be satisfied with the goods. A defect exists only if the goods are worse than the buyer could have expected. Typical traces of use therefore do not as a rule give rise to any material defect rights, unless the seller advertises used items as new or as good as new. However, if the seller knows that the goods are not usable or only usable to a limited extent, he must make this clear.
Slightly stricter liability from 2022
From 1. January 2022 on are liable salesmen also, if they and the buyers did not think about a certain use of the purchase thing at all. According to a change in the law, the item offered is also defective if it does not meet objective criteria such as usability or usual condition. Describing it correctly then becomes a bit more important. But it does not change the possibility to exclude the liability.
Do the security check
Check whether your old things may have been defective from the beginning. Some examples: