Liability when selling a company car used 80% for private purposes
April 29, 2012 | 40,00 EUR | answered by Steffan Schwerin
Hello,
for two years I have been using a car registered in my name. For tax reasons, the vehicle is linked to my part-time IT consulting business.
The private use amounts to 86%.
I now want to sell this car without being liable for any defects.
From my point of view, there are four options:
1.) I sell the vehicle from private to private (I am listed with my name without a company in the registration documents).
2.) I sell the vehicle to my wife and she then sells it from private to private.
3.) I sell the vehicle to a business or for export with an exclusion of liability.
4.) I officially sell it through the business and include an exclusion of liability (does the ruling 16 S 236/03 from 07.04.2004 (LG Frankfurt a.M.) still apply?
Which of the listed alternatives is possible in this case? How can I legally exclude liability for defects in each case?
Thank you in advance.
Dear questioner,
I will answer the questions you have asked, taking into consideration the circumstances described and your efforts, as follows:
Ideally, one should choose option 2 at least in terms of warranty.
However, a warranty exclusion can also be made if you sell the vehicle from your business.
You are not considered a commercial seller when selling, as you do not trade commercially with vehicles.
"The Hanover District Court decided on February 2 that the sale of a vehicle by a snack bar owner does not constitute a consumer goods purchase. The exclusion of warranty made at the time of sale is therefore possible and legal in the opinion of the judges (Case No.: 526 C 12623/09).
Although a consumer goods purchase strictly requires an entrepreneur on one side and a consumer on the other, according to the Hanover judges, the provision must be interpreted restrictively, with the result that the sold item must be in some way related to the business activity. This was not the case in this instance.
The legal dispute concerned the sale of an 18-year-old BMW 520i for 1,200 euros, which a snack bar operator sold to a private individual. All warranty claims had been contractually excluded. It turned out later that the car had pre-existing damage. The seller could not be proven to have known about this pre-existing damage.
The buyer subsequently sued the seller for rescission of the sales contract, arguing that the transaction was a consumer goods sale under §§ 474 ff. of the German Civil Code (BGB), because the seller, as a snack bar owner, was considered an entrepreneur under the provision. Furthermore, the plaintiff argued that a defect in the vehicle could already be seen in the fact that the car had been predominantly used for commercial purposes by the defendant, namely for transporting goods for the snack bar. However, the court did not accept this argument, as it could not be proven that the vehicle had been predominantly used for commercial purposes.
Excerpt from the reasoning of the judgement:
The plaintiff has no claim against the defendant to rescind the sales contract. The agreed warranty exclusion between the parties is valid. The business of the parties does not constitute a consumer goods purchase within the meaning of §§ 474 ff BGB, where an exclusion of liability is not permitted. The court agrees with the opinion of the Frankfurt District Court (decision of 07.04.2004; 16 S 236/03): The mere fact that an entrepreneur sells a used car does not, in itself, constitute a consumer goods purchase within the meaning of § 474 para. 1 BGB.
It is also necessary to establish a causal link between the business activity as such and the transaction in question. This is not the case here, as the defendant does not trade commercially with vehicles, but operates a bistro. It would go too far to impose stricter liability on every entrepreneur, simply because they are commercially active, for every type of business under the principles of consumer goods purchase.
However, even if stricter requirements are applied and it is considered which use of the item predominates (private and commercial), a consumer goods purchase is not applicable in this case.
Based on the statements of the parties, it cannot be established that the commercial use of the car by the defendant predominated. The burden of proof that the conditions of a consumer goods purchase are met lies with the plaintiff. He claimed that the defendant had told him that the vehicle was used for transporting goods for his bistro.
Besides the fact that this is a general statement, it does not necessarily mean that the vehicle was actually predominantly used for commercial purposes, i.e., more than 50 percent. On the contrary, the defendant stated in the oral hearing that he could not use the car predominantly for transporting goods, as it was a sedan. This was also a reason for selling the car."
It is recommended to use the sample contract from the ADAC or mobile.de, which includes an exclusion clause.
I would like to point out that this platform cannot replace detailed and personal legal advice. The aim is solely to provide an initial rough assessment of your legal issue based on the information you have provided by a lawyer. The legal information I have provided is based solely on the factual information you have provided. By adding or omitting relevant information in the context of your description of the facts, a completely different legal assessment may result.
I hope I have been able to give you an initial overview and that my explanations have been helpful. You can contact me through the follow-up option on this platform.
Furthermore, I am of course available to assist you within the framework of a mandate. I would credit the initial consultation fee in full.
A greater distance between lawyer and client generally does not pose a problem. With the help of modern communication tools such as email, mail, fax, and telephone, a mandate execution is also possible.
Best regards,
Steffan Schwerin
Lawyer
Law Office Steffan Schwerin
Golmsdorfer Str. 11
07749 Jena
Tel.: 03641 801257
Fax: 032121128582
Email: raschwerin@raschwerin.de
Website: www.jena-rechtsberatung.de
