A lot can go wrong during a test drive. What is the legal situation? © Rh – lawyer search service
For sellers and buyers of a car, a private test drive raises a number of legal questions: Who is liable in the event of an accident?? How to protect against theft and hidden defects?
Again and again accidents occur during test drives with vehicles for sale. This is not surprising: After all, the prospective buyer is driving a car whose dimensions and controls he is not yet used to and whose braking and acceleration characteristics he does not yet know. On top of that, the test driver is often more focused on the vehicle than on the traffic. If, despite all precautions, an accident occurs, who pays for the damage?? And what if the prospective buyer drives off on his own – and does not return with the car? What buyers should pay attention to in order to learn as much as possible about the vehicle?
Accident during the test drive: What does the insurance pay??
In the case of a private car sale, a test drive on public roads may only be made if the vehicle is still regularly registered. It must therefore be registered and must have liability insurance. Driving without insurance is a criminal offense. Liability insurance covers third-party damage, for example, if the test driver hits another car. It does not cover the damage to your own vehicle.
The accident damage to the test vehicle is paid at most by comprehensive insurance. If the seller has taken out such an agreement, its insurance conditions are decisive. Some insurance policies exclude coverage for all drivers except the vehicle owner, or for all drivers under 25 years of age. Also there is often a deductible. With fully comprehensive insurance, the premium increases after an accident. Deductible and premium increase are also part of the damages that the causer has to bear.
Gross negligence is defined as driving under the influence of alcohol or a red light violation, for example, but also driving without glasses as required by the driver’s license. In such cases the comprehensive insurance pays only to a very limited extent. This also applies if it turns out that the test driver does not have a driver’s license or a driving license. had no driving license.
What the insurance does not pay, the test driver has to pay if he caused the accident.
What applies when buying from a dealer?
If the seller is a dealer, he usually mounts red dealer plates on the car for the test drive. The dealer may use this for various vehicles, even if they are not registered. Liability insurance is also mandatory for the dealer.
It is often written that dealers usually have comprehensive insurance for test drives. Many customers rely on it. The reality is different: Fully comprehensive insurance may be common at dealerships or larger car dealerships, but not at the many small “flag dealers” with small used car lots. Dealers are not required by law to have comprehensive insurance coverage.
Courts generally assume that there is an “implied release of liability” on the part of the test-driving customer during a test drive at the dealership. This means that both parties tacitly agree that the customer is not liable in the event of an accident. But: Dealers can waive this exemption from liability by pointing out to the customer that the car does not have fully comprehensive cover. Then the customer must pay the damage after an accident.
What do the courts say about the dealer’s duty of disclosure?
According to a decision by the Koblenz Higher Regional Court, customers of a car dealer may rely on the fact that the test vehicle has fully comprehensive insurance coverage. This basic idea comes from the Federal Court of Justice, which already decided in the seventies in such a way. There are no recent BGH rulings on this subject.
According to the OLG Koblenz, this means: If the car does not have comprehensive insurance, the dealer must inform the customer of this prior to the test drive. If the customer then drives anyway, he is liable for accident damage himself. If the dealer has not informed the customer about the lack of comprehensive insurance, the dealer is liable (OLG Koblenz, ruling of 13.1.2003, Az. 12 U 1360/01).
Prospective buyers should definitely find out from private and commercial sellers what insurance coverage is available before the test drive. In case of ambiguity, negotiations can also be broken off. By the way, several insurance companies now offer test drive insurance for less than 10 euros, which is valid for one day and which can be concluded at short notice as a prospective buyer. This is also a possible way to insure.
What are test drive agreements?
Both private and commercial sellers and buyers can enter into a written agreement regarding liability during a test drive. Forms for this are available online. In most cases it is agreed which person is allowed to drive the car (with driving license data), how long the test drive may last, in which condition the car was before the test drive (previous damage) and last but not least of course who is liable for what and how it is insured. A deposit can also be agreed. This is common practice at car dealers nowadays, especially for higher-value vehicles.
However, in practice it is very questionable whether the seller will agree to an agreement that excludes the liability of the prospective buyer in the event of an accident. By the way: There is no exclusion of liability for damage caused by intent or gross negligence.
Car theft during the test drive
An important precaution for the salesman is to ask the prospective buyer to show his identity card before the test drive. He can also ask for the identity card or something else as a deposit or simply take the car for a test drive. The reason: It is not so rare that alleged test drivers disappear with the vehicle.
Although partial cover insurance does cover theft. In a fully comprehensive insurance is the partial cover included. But: Nevertheless, insurance coverage can be voided for two reasons:
First of all, from a legal point of view, this is not theft, but embezzlement. The perpetrator did not steal the vehicle from the owner against his will, but the owner entrusted it to him voluntarily for the test drive. Now, however, misappropriation is not insured in most partial casco contracts. So it depends on the contract.
Secondly, insurance cover can also lapse or be considerably reduced if the seller has made it too easy for the perpetrator to do so. For example, the Coburg Regional Court did not grant insurance coverage to a man whose motorcycle had been misappropriated during a test drive (Az. 13 O 717/08). The man entrusted the bike to the interested party without ascertaining his personal data. As a deposit, he had accepted a backpack that supposedly contained identification papers, but was actually empty.
What should one pay attention to in case of a deposit?
The deposit left behind should of course not be in a closed backpack. It should correspond to the value of the offered vehicle. Above all, it should not be stolen itself. So it is a popular scam of tricksters to offer a stolen vehicle as a deposit. This is what happened in Kassel in 2014, for example, according to press reports: the test driver left a stolen motorcycle as collateral, went on a test drive in a VW Passat and never came back. Here the salesman could have asked first for the vehicle registration document of the bike.
What should be checked on the test drive?
Already before the start of the journey one should pay attention to visible safety deficiencies. For example, worn tires or defective lighting can lead not only to a fine for the driver, but also to an accident. Warning lights with symbols for the engine or brake system should not be ignored.
Information on many types of car can be obtained in advance on the Internet: you can often find test reports on critical points of the vehicle in question, for example on typical defects, wear parts or rust spots, under the search keywords “test report”, “buyer’s guide” or “checklist”.
It is advisable to make a stop during the test drive with a close inspection of the vehicle including the underbody. A flashlight is helpful. Exhaust, chassis and underbody should be inspected for rust and look for oil dripping from the engine and transmission. You should also operate all doors and check all electrical and electronic functions and switches – for example, air conditioning, seat adjustment, electric exterior mirrors and sunroof. A look into the engine compartment is not to be missed. There should be a note from the workshop with the date of the last oil change. Are the levels of the fluids (coolant, brake fluid, hydraulic oil) as far as visible in the “green zone”?? Is oil or any other fluid leaking anywhere?
When driving, you can also check if the steering is spongy, the gearshift works cleanly and the brake works well. When braking hard, you should always pay attention to the traffic behind the vehicle! Unusual noises may indicate damage. Drive slowly over smaller roads, you will hear them better. A used car check at the ADAC or a garage is also helpful.
No test drive without valid license plates!
Under no circumstances should you test drive a car without a license plate and registration or possibly with a license plate from another car that has been quickly attached to it. Then there is no insurance protection. Driving without insurance is a criminal offense. Here you risk a fine or up to one year of imprisonment according to § 6 compulsory insurance law. Misuse of license plates is also punishable. According to § 22 of the Road Traffic Act, this is also punishable by a fine or imprisonment of up to one year.