Ebay item defective
May 17, 2011 | 25,00 EUR | answered by Jan Wilking
I bought a cylinder head for a car on eBay. According to the item description, the cylinder head is in perfect condition and not damaged. The corresponding camshaft is allegedly not worn according to the seller! Since he is a private seller, he cannot provide any guarantee or warranty.
The item arrived and it was immediately noticeable that the camshaft was worn, making it unusable.
The cylinder head was machined and new gaskets were purchased! (The usual procedure when replacing a cylinder head on a car)
The cylinder head was installed at an automotive workshop. After the installation of the cylinder head, it was discovered that an oil channel in the cylinder head is damaged. Therefore, the cylinder head is defective.
The total cost of the repair (machining, gaskets, labor, etc.) amounts to almost 900 euros!
The problem was explained to the seller, but he was dismissive and even personally attacked me.
What can I do?
Dear inquirer,
I am happy to answer your inquiry considering the circumstances you have described and your input as follows:
Since, according to your statement, the purchased cylinder head was already defective upon delivery, you can generally assert warranty claims against the seller. However, it seems that the seller has excluded such claims. The exclusion of liability for defects is generally possible among private individuals, but not if the seller has fraudulently concealed the defect or regarding a guaranteed quality (§ 444 BGB). If the seller has explicitly assured that the cylinder head is in perfect condition and the camshaft is not worn, a quality agreement can usually be assumed.
Therefore, you can demand subsequent performance from the seller, § 439 BGB. This includes the delivery of a defect-free cylinder head, but not the installation costs. The Federal Court of Justice (BGH) stated in a decision on January 14, 2009, VIII ZR 70/08, the following: The buyer has no claim for reimbursement of removal and installation costs from the seller if the buyer has installed the purchased material in self-assembly or by a commissioned contractor and a defect is then revealed. This is justified by the Federal Court of Justice stating that the installation of materials results from the buyer's liability and the actual purchase contract only involves the seller's obligation to deliver the material.
According to the Federal Court of Justice, a further claim by the buyer for reimbursement of removal and installation costs exists at most under the aspect of damages. Such a claim requires that the seller is responsible for the defective delivery. The seller must be at fault in this regard. However, the seller is only at fault if he could have recognized the defect with proper care before delivery.
If an agreement on quality has been made regarding the cylinder head being flawless and the camshaft not being worn, you have a right to subsequent performance, i.e., delivery of a defect-free cylinder head. However, you can only demand the installation costs from the seller if he negligently delivered a defective item, meaning the defective cylinder head was recognizable to him upon careful inspection.
I hope I was able to provide you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.
Please keep in mind that I cannot give a final advice here without knowing all the circumstances as part of an initial consultation. If you wish for a final assessment of the situation, I recommend contacting a lawyer and discussing the matter with them after examining all documents.
Best regards
