Selling on the Internet: Via platforms such as Ebay, old treasures can be turned into money easily and quickly. Private sellers, however, run the risk of liability for material defects. © Getty Images / Uwe Umstaetter, Screenshot Stiftung Warentest (M)
You can get rid of old things on Ebay or in online classifieds. We explain to private sellers how to eliminate liability with proper private sale clauses.
The old myth of the “new EU law
Still many nonsensical private sales clauses can be found on Ebay. “According to current EU law, I must point out: This is a private sale, so no return or exchange can be granted,” writes Ebay user alelauf in his offer of a landline phone. He wants to protect himself so from claims of dissatisfied buyers. But his wording is likely to be ineffective.
Even private sellers must comply with the law
The following applies: private sellers do not have to point out anything at all. And it is also wrong that they can not provide a guarantee or warranty. On the contrary: According to the law, they must also be responsible for faultless goods. And: From 1. January 2022 on the liability for material defects tightens still somewhat. Details below under “Describe items and defects correctly”.
After all, it’s true: There is no right of exchange or return for private sales – no matter if on a flea market, on Ebay or on classifieds.
Exclusion of liability for material defects possible
In the case of private sales, however, deviating agreements on liability are permissible. However, it is not what the seller wants or can do that matters, but what he offers – and what the buyer agrees to.
Avoid other trouble with and on Ebay
With these liability clauses you do everything right
Ebay user catrob_de makes it before. In his offer of a used photo bag he writes: “The sale is made under exclusion of any warranty.” The consequence: if something is wrong with the bag, he must neither subsequently perform nor refund the purchase price.
Even if the former “warranty” in the law has long been called “liability for material defects” – the wording is unambiguous and therefore court-proof. Further explanations, for example that catrob_de sells as a private person, are superfluous.
On the other hand, if the wording is unclear or misleading, you bear the full statutory liability for material defects. That means: He stands as a seller two years from delivery for the fact that the goods are just as good as the buyer may expect based on the item description. From 1. From January 2022 onwards, the following also applies: The purchased item must be objectively suitable for its usual use and have the usual quality.
Effective private sale clauses – used goods
If you do not want to be liable for defects when selling used goods, you must exclude liability for material defects. The correct wording is:
“I exclude any liability for material defects.“
This is clear. Sellers should add to be on the safe side:
“The liability for damages due to injury to health, body or life and grossly negligent and / or intentional violations of my duties as a seller remains unrestricted.“
That is important, if salesmen offer again and again something to the purchase. The disclaimer appears namely also with private persons as a general business condition, as soon as they use it or want to use it for three or more offers. Tougher conditions for the exclusion of liability for material defects apply to such GTCs. It is altogether ineffective if the addition to claims for damages is missing.
Effective private sale clauses – new goods
Also with the sales of individual new goods private people can exclude the adhesion as with used goods. The correct wording is also here:
“I exclude any liability for material defects.“
However, if someone offers something for sale three times with the same wording for the exclusion of liability, the wording is considered a general business condition, with which he can not completely exclude the liability for material defects for new goods, but only limit it to one year from delivery (Federal Court of Justice, ruling of 04.02.2015, file no: VIII ZR 26/14).
Effective private sale clauses – multiple sale of new goods
Our suggested wording of a clause for repeated sales of new goods is:
“I limit the liability for defects to one year from delivery of the item. The liability for damages due to injury to health, body or life and grossly negligent and / or intentional violations of my obligations as a seller remains unrestricted.“
Describing articles and defects correctly – this is how to do it
The importance of the disclaimer varies depending on the goods. Rule of thumb: The more valuable the object, the more expensive it can be to have to answer for defects. If you sell a used car, you run the risk of having to pay for a new engine if the old one gives up the ghost soon after delivery.
Although the buyer must always prove to a private seller – unlike a dealer – that the defect was already present upon delivery. However, since even preliminary stages of engine damage can lead to liability for material defects, this does not always help. The risk remains high. If the matter goes to court, procedural fees and attorney’s fees are also incurred.
Tip: A good legal protection insurance protects you from the financial risks of a legal dispute (to the comparison legal protection insurance).
All information must be correct
What’s more, many sellers don’t realize when it comes to Internet sales: what’s written in the item description must also be correct. Otherwise they are liable even if they have excluded liability for material defects.
This was the experience of a Berlin Ebay seller. He had advertised his old motorboat as a “nice hiking boat” for “longer discovery tours”. In fact, it was no longer seaworthy due to mold-infested wooden parts. The consequence: Despite exclusion of liability, the buyer gets his money back, unless the seller still manages to repair the boat.
Federal Court of Justice, Judgment of 19.12.2012
File no: VIII ZR 96/12
If you do not know whether and to what extent the offered item works, disclose it. For the example of a discarded computer: “I have used the computer until a year ago. It worked without problems. Whether it still works now and the security updates that have appeared in the meantime can be installed, I do not know.” Or for an electrical appliance: “I found the device in my parents’ attic and never used it myself. I do not know if it works.”
Article description must be clear
Buyers may only rely on the item description if it is clear. Even an incorrect type designation such as “Opel Adam Slam” instead of the correct “Opel Adam Jam” is not necessarily binding if the seller has effectively excluded liability for material defects.
Federal Court of Justice, Judgment from 27.09.2017
File reference: VIII ZR 271/16
Important: Present product defects correctly
The reverse is true: If weaknesses and defects are correctly presented in the item description, buyers must be satisfied with the goods. A defect exists only if the goods are worse than the buyer could expect. Typical signs of use therefore do not usually trigger any material defect rights, unless the seller advertises used items as new or as good as new. However, if the seller knows that the goods are not usable or only usable to a limited extent, he must make that clear.
Slightly stricter liability from 2022
From 1. As of January 2022, sellers are liable even if they and the buyers have not given any thought to a specific use of the purchased item. After a change in the law, the offered item is also defective if it does not meet objective criteria such as usability and or usual condition. Describing it correctly then becomes a bit more important. At the possibility to exclude liability, however, nothing changes.
Do the safety check
Check whether your old items may have been defective from the beginning. Some examples: