New vehicle sales conditions (motor vehicles and trailers)

Non-binding recommendation of the German Association of the Automotive Industry (VDA), the Association of International Motor Vehicle Manufacturers (VDIK) and the German Federation of Motor Trades and Repairs (ZDK)

New vehicle sales conditions (motor vehicles and trailers)

Status: 12/2016

I. Conclusion of contract/transfer of rights and obligations of the buyer

1. the buyer shall be bound by the order for a maximum of three weeks, or six weeks in the case of commercial vehicles. This period is reduced to 10 days (2 weeks for commercial vehicles) for vehicles that are available at the seller’s premises. 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 Prices

III 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.

IV. Delivery and delay in delivery

1. delivery dates and delivery periods, which can be agreed as binding or non-binding, must be specified in writing. Delivery periods shall commence upon conclusion of the contract.

2. six weeks after exceeding a non-binding delivery date or a non-binding delivery period, the buyer may request the seller to deliver. This period is reduced to 10 days (for commercial vehicles to two weeks) for vehicles that are available at the seller’s premises. If the Buyer is entitled to compensation for damages 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 or 2 of this section. if the buyer is entitled to damages instead of performance, the claim is limited to a maximum of 25% 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 instead of performance are excluded in the event of slight negligence. If the seller is unable to deliver by chance while he is in default, he shall be liable with the aforementioned agreed limitations of liability. 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 4 and clause 3 of this section.

5. the limitations and exclusions of liability in this section shall not apply to damage caused by grossly negligent or wilful breach of obligations by 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 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.

7. the manufacturer reserves the right to make changes to the design or shape, deviations in colour and changes to the scope of delivery during the delivery period, provided that the changes or deviations are reasonable for the buyer, taking into account the interests of the seller. If the seller or the manufacturer uses symbols or numbers to designate the order or the ordered object of purchase, no rights can be derived from this alone.

V. Acceptance

1. the buyer is obliged to accept the object of purchase within 14 days of receipt of the notification of availability.

2. in the event of non-acceptance, the seller may make use of his statutory rights. If the seller demands compensation, this shall amount to 15% 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.

VI Retention of title

1. the object of purchase shall remain the property of the seller until the claims to which the seller is entitled on the basis of the purchase contract have been settled. 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 current business relationship until settlement of claims 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 hold the registration certificate part II (vehicle registration document). 2.

2. if the buyer does not pay the purchase price and prices for ancillary services due or does not pay them in accordance with the contract, the seller may withdraw from the contract and/or demand compensation 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. If the seller is entitled to compensation instead of performance and takes back the object of purchase, the seller and buyer agree that the seller shall reimburse the usual sales value of the object of purchase at the time of taking it back. At the request of the buyer, which can only be expressed immediately after taking back the object of purchase, a publicly appointed and sworn expert, e.g. from Deutsche Auto- mobil Treuhand GmbH (DAT), will determine the usual sales value at the buyer’s discretion. The buyer shall bear the necessary costs of taking back and realising the object of purchase. The realisation costs amount to 5% of the usual sales value without proof. They shall be set higher or lower if the seller proves higher costs or the buyer proves that lower costs or no costs at all were incurred.

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.

VII Liability for material defects

1. claims of the buyer due to material defects shall become statute-barred in accordance with the statutory provisions two years after delivery of the object of purchase. 2 In deviation from this, a limitation period of one year shall apply 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.

2. the shortening of the limitation period 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 rectified, the following shall apply: a) The Buyer may assert claims for rectification of defects with the Seller or with other companies recognised by the manufacturer/importer for the care of the object of purchase; in the latter case, the Buyer must inform the Seller of this immediately if the first rectification of defects was unsuccessful. In the case of verbal notification of claims, the buyer must be given written confirmation of receipt of the notification. b) If the object of purchase becomes inoperable due to a material defect, the buyer must contact the nearest service centre to the location of the inoperable object of purchase that is recognised by the manufacturer/importer for the care of the object of purchase. c) The buyer may assert claims for material defects based on the purchase contract for the parts installed to remedy the defect until the expiry of the limitation period for the object of purchase. d) Replaced parts become the property of the seller.

  1. A change of ownership of the object of purchase shall not affect claims for the rectification of defects.

VIII. Liability for other damages

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

2. liability for delay in delivery is regulated in Section IV “Delivery and delay in delivery”. For other claims for damages against the seller, the provisions in Section VII “Liability for material defects”, Clauses 3 and 4 shall apply accordingly.

IX. Place of jurisdiction

1. the exclusive place of jurisdiction for all present and future claims arising from the business relationship with merchants, including bill 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.

X. 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.