What are some common misunderstandings about traders
Car purchase agreement
When is a car sales contract effective?
According to German civil law, the sales contract for a motor vehicle (car purchase contract) requires two identical declarations of intent in order to be valid, i.e. in the (simplest) case, an offer and an acceptance.
In individual cases this is not so easy to determine - it is difficult to check whether a contract has come about without an examination by a competent lawyer. This is all the more true as many commercial car dealers also use a so-called “binding order” and then attach general terms and conditions, which regulate when the contract is to be concluded.
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What must at least be agreed in the car purchase contract?
However, a car purchase contract must contain what are known as essential elements, usually stating what is being sold and at what price.
Example: The seller offers a used VW Golf, EZ. 2007, at a price of EUR 6,000 (offer). The buyer agrees (acceptance).
No other components are required to be effective. An oral contract that includes the object of purchase and the price is then effective.
It is clear that in practice other aspects are often regulated and most car purchase contracts are also recorded in writing.
Does the order of the explanations matter?
Of course, the order of “offer and acceptance” mentioned above is by no means specified. Especially in price negotiations, the process can be reversed, but this does not change the validity of the contract.
Example: The seller offers a used VW Golf, EZ. 2007, at a price of 6,000 EUR. The buyer makes a counter-proposal to purchase the car for EUR 5,000 (offer). The seller accepts this (assumption).
Is there a form required for the sales contract for a car?
A certain form is not to be adhered to for a car purchase contract, although in practice it is usual and also recommended to record all essential parts of the contract in writing or in text form. This is advisable for reasons of preserving evidence and avoiding disputes.
However, contracts can be concluded not only in writing, but also orally and do occur. Contracts concluded by email are also common. When communicating, however, both contractual partners are not always aware that a purchase contract is often already in place when binding agreements are made by email.
Can you buy a car via WhatsApp?
The answer is yes.
The use of means of distance communication such as e-mail and instant messaging (WhatsApp) is also increasing in the field of car trading. However, this often leads to the incompleteness of what is contractually intended. However, it is important to note that a binding sales contract for a vehicle can also be concluded by email or WhatsApp.
Can I cancel my car purchase?
However, if the seller is an entrepreneur and the buyer is a consumer, legal problems arise when the contract is concluded by email or WhatsApp. The legislature grants the consumer a fourteen-day right of withdrawal in distance selling, about which the entrepreneur (in this case the car dealer) must instruct.
This is where the details matter. If the buyer has viewed the vehicle on site before purchasing it, distance selling is usually ruled out. However, if you buy “blind” online, the seller would have to correctly instruct you about the right of withdrawal. Often this does not happen either.
Let us check the details. Often the cancellation instructions used are also incorrect, so that the entrepreneur cannot invoke the 14-day right of cancellation.
Acceptance with deviations - effective sales contract?
If the conclusion of the car purchase agreement does not proceed as described above, it becomes more complicated.
Example: The seller offers the VW Golf for EUR 6,000. A prospective customer makes the offer to purchase the car for 6,000 EUR when he receives new winter tires.
A contract did not come about here. The seller's offer must be accepted without deviations. A "counter-proposal" from the potential buyer who receives different conditions is considered a new offer. This new offer now requires acceptance by the seller. Again, this assumption must not contain any deviations.
“Binding Order” - Effective Car Buying?
Many general terms and conditions of commercial car dealerships stipulate that the buyer should submit a so-called "binding order to purchase a motor vehicle" when a purchase is initiated.
Contrary to popular belief, a binding order usually does not mean that a legally binding purchase contract for the vehicle has already been concluded. According to the general terms and conditions of many dealers, with the binding order the buyer is only making a unilaterally binding offer to the seller. The customer is initially bound to this offer; a period of 10 days is usual here, sometimes more. Within this period, the dealer can accept the offer by means of a written confirmation or delivery of the vehicle. The dealer can just as easily refuse the offer and then there is no entitlement to delivery of the vehicle.
Depending on the design of the terms and conditions, the buyer can withdraw from his order (= offer to conclude a purchase contract) until it is confirmed in writing by the seller.
In individual cases, there can be considerable potential for conflict because the terms often lead to misunderstandings. In addition, it always makes sense to have the merchant's specific terms and conditions checked for legality with regard to this clause.
Are general terms and conditions (GTC) effective when buying a car?
In most cases, commercial traders use “General Terms and Conditions” (GTC for short) with a large number of clauses.
To put it simply, two questions arise here:
- Have the terms and conditions been effectively included in the contract (inclusion control)?
- Are individual clauses that the trader invokes in the event of a conflict effective (clause control)?
The associated legal questions are complicated in individual cases. We will be happy to advise you on the question of whether you as a retailer can refer to the terms and conditions or not - or, as a buyer, whether the terms and conditions can be invoked against you.
Need advice on this? Contact us without obligation.
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