Non-binding recommendation of the Zentralverband Deutsches Kraftfahrzeuggewerbe e. V. (ZDK)

Used car sales conditions (motor vehicles and trailers)

Status: 12/2016

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 writing within the periods specified in each case or carries out the delivery. However, the seller is obliged to inform the buyer immediately if he does not accept the order.

2. transfers of rights and obligations of the buyer arising from the purchase contract require the written consent of the seller.

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 counterclaim of the buyer 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 if it is based on claims 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 writing. Delivery periods shall commence upon 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.

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 the expiry of the relevant deadline in accordance with clause 2, sentence 1 of this section. if the buyer is entitled to damages instead of performance, the claim is 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 in the event of slight negligence are excluded. If, while the seller is in default, delivery becomes impossible by chance, he 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 delivery period is exceeded. The rights of the Buyer shall then be 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 wilful breach of obligations on the part of the seller, his legal representative or his 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 disruptions to performance 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 cancellation 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 seller 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 indisputably 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 (vehicle registration document).

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 demand 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 utilisation.

VI Liability for material defects

1. claims of the buyer due to material defects shall become statute-barred one year after delivery of the object of purchase to the customer. 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.

2. the shortening of the limitation period in clause 1 sentence 1 and the exclusion of liability for material defects in clause 1 sentence 2 shall not apply to damages based on 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.

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 in accordance with its content and purpose or the fulfilment 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 of conclusion of the contract. The personal liability of the legal representatives, vicarious agents and employees of the seller for damage caused by them through slight negligence is excluded. Clause 2 of this section applies accordingly to the aforementioned limitation of liability and the aforementioned exclusion of liability.

(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 remedied, the following applies: a) The buyer must assert claims for material defects with the seller. In the case of verbal notification of claims, the buyer must be provided with written confirmation of receipt of the notification. 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 material defect claims 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 damages

1. other claims of the customer which are not regulated in section VI “Liability for material defects” shall become statute-barred within the regular limitation period.

2. liability for 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”, Clauses 3 and 4 shall apply accordingly.

VIII. Place of jurisdiction

1. the exclusive place of jurisdiction for all present and future claims arising from the business relationship with merchants, including bills of exchange and cheque claims, 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 filed. 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 settlement of disputes

IX. Out-of-court dispute resolution

1. motor vehicle arbitration centres

a) If the motor vehicle business bears the master sign “Meisterbetrieb der Kfz-Innung” or the basic sign “Mitgliedsbetrieb der Kfz-Innung” or “Autohandel mit Qualität und Sicherheit”, 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 tonnes - with the exception of the purchase price. The appeal must be lodged with the Motor Vehicle Arbitration Board by submitting a written statement (notice of appeal) immediately after becoming aware of the point in dispute, at the latest within 13 months of delivery of the object of purchase. b) The decision of the Motor Vehicle Arbitration Board does not exclude legal recourse. c) An appeal to the Motor Vehicle Arbitration Board suspends the statute of limitations 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) An appeal to the Motor Vehicle Arbitration Board is excluded if legal action has already been taken. If legal recourse is taken during arbitration proceedings, the Motor Vehicle Arbitration Board shall cease its activities. f) No costs shall be charged for recourse to the Motor Vehicle Arbitration Board.

2. notice pursuant to § 36 of the Consumer Dispute Settlement Act (VSBG)

The seller will not participate in dispute resolution proceedings of consumer arbitration boards within the meaning of the VSBG and is not obliged to do so.