General Terms and Conditions for the Sale of Used Cars

Non-binding recommendation of the Zentralverband Deutsches Kraftfahrzeuggewerbe e. V. (ZDK) Status: 01/2022

I. Conclusion of contract/transfer of rights and obligations of the buyer
1. the buyer is bound to the order for a maximum of 10 days, in the case of commercial vehicles up to 2 weeks. The purchase contract is concluded when the seller confirms acceptance of the order for the specified object of purchase in text form within the periods specified in each case or carries out the delivery. However, the seller is obliged to inform the purchaser immediately if he does not accept the order.
2. transfers of rights and obligations of the buyer from the purchase contract require the consent of the seller in text form.
This does not apply to a monetary claim of the buyer against the seller.
The prior consent of the seller is not required for other claims of the buyer against the seller if the seller has no interest worthy of protection in an exclusion of assignment or if the buyer’s legitimate interests in the assignability of the right outweigh the seller’s interest worthy of protection in an exclusion of assignment.

II Payment
1. the purchase price and prices for ancillary services are due for payment upon delivery of the object of purchase and handover or sending of the invoice.
2. the Buyer may only offset against claims of the Seller if the Buyer’s counterclaim is undisputed or a legally binding title exists. This does not apply to counterclaims of the buyer arising from the same purchase contract. He may only assert a right of retention insofar as it is based on claims arising from the same contractual relationship.

III Delivery and delay in delivery
1. delivery dates and delivery periods, which can be agreed as binding or non-binding, must be stated in text form. Delivery periods begin with the conclusion of the contract.
2. ten days, in the case of commercial vehicles two weeks, after a non-binding delivery date or a non-binding delivery period has been exceeded, the buyer may request the seller to deliver. The seller shall be in default upon receipt of the request. If the buyer is entitled to compensation for damage caused by delay, this shall be limited to a maximum of 5% of the agreed purchase price in the event of slight negligence on the part of the seller.
3. if the buyer also wishes to withdraw from the contract and/or claim damages instead of performance, he must set the seller a reasonable deadline for delivery after expiry of the relevant deadline in accordance with clause 2, sentence 1 of this section.
If the buyer is entitled to compensation instead of performance, the claim shall be limited to a maximum of 10% of the agreed purchase price in the event of slight negligence. If the buyer is a legal entity under public law, a special fund under public law or an entrepreneur who is acting in the exercise of his commercial or independent professional activity when concluding the contract, claims for damages are excluded in the event of slight negligence. If, while the seller is in default, delivery becomes impossible by chance, the seller shall be liable subject to the limitations of liability agreed above. The seller shall not be liable if the damage would have occurred even if delivery had been made on time.
4. if a binding delivery date or a binding delivery period is exceeded, the seller shall be in default as soon as the delivery date or the delivery period is exceeded.
The rights of the buyer are then determined in accordance with clause 2, sentence 3 and clause 3 of this section.
5. the limitations and exclusions of liability in this section shall not apply to damage caused by gross negligence or intentional breach of obligations on the part of the seller, its legal representative or its vicarious agent or in the event of injury to life, limb or health.
6. force majeure or operational disruptions occurring at the seller or its suppliers, which temporarily prevent the seller from delivering the object of purchase on the agreed date or within the agreed period through no fault of its own, shall change the dates and periods specified in clauses 1 to 4 of this section by the duration of the performance disruptions caused by these circumstances. If such disruptions lead to a delay in performance of more than four months, the buyer may withdraw from the contract. Other rights of withdrawal remain unaffected.

IV. Acceptance
1. the buyer is obliged to accept the object of purchase within eight days of receipt of the notification of availability. In the event of non-acceptance, the seller may exercise his statutory rights.
2. if the seller demands compensation, this shall amount to 10% of the purchase price. The compensation shall be set higher or lower if the seller proves higher damages or the buyer proves that lower damages or no damages at all have been incurred.
V. Retention of title
1. the object of purchase shall remain the property of the seller until settlement of the claims to which the seller is entitled on the basis of the purchase contract.
If the buyer is a legal entity under public law, a special fund under public law or an entrepreneur who is acting in the exercise of his commercial or independent professional activity when concluding the contract, the retention of title shall also remain in force for claims of the seller against the buyer arising from the ongoing business relationship until settlement of claims to which the buyer is entitled in connection with the purchase.
At the request of the buyer, the seller is obliged to waive the retention of title if the buyer has incontestably fulfilled all claims in connection with the object of purchase and there is adequate security for the remaining claims from the ongoing business relationship. For the duration of the retention of title, the seller has the right to possess the registration certificate part II.
2. if the buyer does not pay the due purchase price and prices for ancillary services or does not pay them in accordance with the contract, the seller may withdraw from the contract and/or claim damages instead of performance in the event of culpable breach of duty by the buyer if he has unsuccessfully set the buyer a reasonable deadline for performance, unless the setting of a deadline is dispensable in accordance with the statutory provisions.
3. as long as the retention of title exists, the buyer may neither dispose of the object of purchase nor grant third parties contractual use of it.

VI Liability for material defects and defects of title
1. if the buyer is a consumer within the meaning of § 13 BGB, a shortening of the two-year limitation period for material defects and defects of title to not less than one year from delivery of the object of purchase to the buyer can only be effectively agreed if the buyer is specifically informed of the shortening of the limitation period before submitting his contractual declaration and the shortening is expressly and separately agreed in the contract. For material defects and defects of title in goods with digital elements, the provisions of this section shall not apply to the digital elements, but rather the statutory provisions.
2. if the buyer is a legal entity under public law, a special fund under public law or an entrepreneur who is acting in the exercise of his commercial or independent professional activity when concluding the contract, the sale shall be made to the exclusion of any claims for material defects and defects of title.
This exclusion does not apply to damage caused by grossly negligent or intentional breach of obligations by the seller, his legal representative or his vicarious agent or in the event of injury to life, limb or health.
3. if the seller is liable under the statutory provisions for damage caused by slight negligence, the seller’s liability shall be limited:
Liability shall only exist in the event of a breach of material contractual obligations, such as those which the purchase contract intends to impose on the seller according to its content and purpose or the fulfillment of which is essential for the proper execution of the purchase contract and on the observance of which the buyer regularly relies and may rely. This liability is limited to the typical damage foreseeable at the time the contract was concluded. The personal liability of the legal representatives, vicarious agents and employees of the seller for damage caused by them through slight negligence is excluded.
This does not apply to damages resulting from a grossly negligent or intentional breach of obligations by the seller, his legal representative or his vicarious agent or in the event of injury to life, limb or health.
4 Irrespective of any fault on the part of the seller, any liability of the seller in the event of fraudulent concealment of a defect, from the assumption of a guarantee or a procurement risk and under the Product Liability Act shall remain unaffected.
5 If a defect is to be rectified, the following shall apply:
a) The buyer must assert claims for material defects with the seller. In the case of verbal notification of claims, the buyer shall be provided with a confirmation of receipt of the notification in text form.
b) If the object of purchase becomes inoperable due to a material defect, the buyer may, with the prior consent of the seller, contact another master vehicle workshop.
c) The buyer may assert claims for material defects based on the purchase contract for the parts installed as part of a defect rectification until the expiry of the limitation period for the object of purchase. Replaced parts become the property of the seller.

VII Liability for other claims
1. the statutory limitation periods shall apply to other claims of the Buyer which are not regulated in Section VI “Liability for material defects and defects of title”.
2. liability due to delay in delivery is regulated conclusively in Section III “Delivery and delay in delivery”. For other claims for damages against the Seller, the provisions in Section VI “Liability for material defects and defects of title”, Clauses 3 and 4 shall apply accordingly.
3. if the buyer is a consumer within the meaning of § 13 BGB and the subject matter of the contract is also the provision of digital content or digital services, whereby the vehicle can also fulfill its function without these digital products, the statutory provisions of §§ 327 ff BGB apply to this digital content or digital services.

VIII. Place of jurisdiction
1. the exclusive place of jurisdiction for all present and future claims arising from the business relationship with merchants, including claims from bills of exchange and checks, shall be the registered office of the seller.
2. the same place of jurisdiction shall apply if the buyer has no general place of jurisdiction in Germany, moves his domicile or usual place of residence out of Germany after conclusion of the contract or his domicile or usual place of residence is not known at the time the action is brought. Otherwise, the place of jurisdiction for claims of the seller against the buyer shall be the buyer’s place of residence.

IX. Out-of-court dispute resolution
1. motor vehicle arbitration boards
a) If the motor vehicle company bears the master sign “Meisterbetrieb der KFZ-Innung” or the basic sign “Mitgliedsbetrieb der KFZ-Innung”, the parties may appeal to the motor vehicle arbitration board responsible for the registered office of the seller in the event of disputes arising from the purchase contract for used vehicles with a permissible total weight of no more than 3.5 t – with the exception of the purchase price. The appeal must be made immediately after becoming aware of the point in dispute, at the latest one month after expiry of the limitation period for material defects and defects of title in accordance with Section VI, by submitting a written statement (notice of appeal) to the Motor Vehicle Arbitration Board.
b) The decision of the Motor Vehicle Arbitration Board does not exclude legal recourse.
c) By appealing to the Motor Vehicle Arbitration Board, the limitation period is suspended for the duration of the proceedings.
d) The proceedings before the Motor Vehicle Arbitration Board are governed by its Rules of Procedure, which will be provided to the parties by the Motor Vehicle Arbitration Board upon request.
e) Recourse to the Motor Vehicle Arbitration Board is excluded if legal action has already been taken. If legal action is taken during arbitration proceedings, the Motor Vehicle Arbitration Board shall cease its activities.
f) No costs are charged for the use of the Motor Vehicle Arbitration Board.
2. notice pursuant to § 36 of the Consumer Dispute Settlement Act (VSBG)
The seller will not participate in a dispute settlement procedure before a consumer arbitration board within the meaning of the VSBG and is not obliged to do so.