Ask a lawyer on the topic of Contract law

Ebay warranty for defects Yes/No Fraud Yes/No

May 23, 2010 | 40,00 EUR | answered by Steffan Schwerin

Hello,

I have won item number 190395028038 on eBay. This is a 4x4 (all-wheel drive) ATV (also known as a quad bike). The auction stated: no warranty - private sale. No mention of defects. When I asked the seller during handover if there were any defects or issues with the vehicle, he replied that everything was okay and that the vehicle had always been in the workshop. He showed me the receipts and documents, and I gave him the money. Since the vehicle was not registered, a test drive was not possible and it was picked up with a trailer.

Before I wanted to start using it, I took the ATV to a workshop for a service. The workshop informed me that the vehicle had SIGNIFICANT defects:
- Front left wheel drive defective
- Transmission defective
- Differential defective
- Rear brake defective
- and more.
Total cost estimate: 3,400.

(In comparison, the seller paid 2157€ for the ATV, and I am willing to cover 1/3 of the costs, with 400 for private installation, of which I will cover 50%. The seller rejected this comparison)

In the receipts, I found a note that a previous workshop had repaired something on the ATV for the customer and explicitly warned them that the all-wheel drive was defective and would not be repaired at the customer's request, as well as mentioning a defect when driving in reverse.

Since I had been searching for this exact model and year of ATV for six months, I do not agree with the seller's suggestion to return the ATV, especially since the auction explicitly stated no returns.

Question:
Does the warranty for defects apply because it was not part of the auction (contract)?
If yes, to what extent (legal rulings)?
If no, why not (legal rulings)?

Question 2: Has the seller committed fraud by knowingly gaining a financial advantage, as with the damages stated, no one would have bid only 800?

Anonymous

Steffan Schwerin

Dear questioner,

I will answer the questions you have raised taking into account the circumstances described and your input as follows:

Since this is a private purchase and the warranty has been validly excluded, it does not apply.

However, the seller is still liable for these deliberately concealed defects.

However, the seller is not obligated to repair the quad, cover the costs (partially), or partially refund the purchase price.

Rather, according to the legal situation, the purchase contract should be unwound.

Since the seller was aware of the defects - as clearly shown in the workshop invoice - he deceived you fraudulently. Therefore, the purchase contract can be contested according to § 123 BGB.

As a result, the contract is to be unwound. You will get your money back and the seller will get the quad back.

Despite the exclusion in the auction, the seller must take back the goods.

You can of course insist on keeping the quad and the seller bearing the cost of repairs. However, there is no legal entitlement to this.

You should write to the seller one last time and give him a deadline of about 14 days. By then, the seller should declare his obligation to cover the repair costs.

If he does not comply, you must decide whether you want to take legal action.

Furthermore, it may be considered to hold the seller criminally liable and file a criminal complaint for fraud.

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I hope I have been able to give you an initial overview and that my explanations have been helpful. Please feel free to contact me through the follow-up option on this portal.

Furthermore, I am also available for legal representation. I would credit the initial consultation fee in full.

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Sincerely,

Steffan Schwerin
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