OGH on Exclusion of Warranty for Used Cars

Aug 2, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified whether consumers who sell a second-hand car are also responsible for the roadworthiness and operational safety of the car.

In 2019, the plaintiff bought a car over ten years old from the defendant for EUR 9,100. Both parties were private individuals. The claimant inspected the vehicle for visible damage and took it for a short test drive. The condition of the car was not discussed. It was only mentioned that the vehicle inspection (Section 57a) sticker, the so-called ‘Pickerl’, was still valid for another seven months.

The wording of the sales agreement was: ‘I am selling to you and you are buying from me this vehicle in my ownership [...] in a used condition, as inspected and test-driven, without any form of warranty’.

Although not obvious to the untrained eye, the car’s engine was clogged on delivery, a defect that eventually led to total engine damage.

The plaintiff claimed rescission of the contract and reimbursement of the purchase price. In particular, he relied on a warranty for roadworthiness.

The lower courts upheld the claim, but the OGH rejected it.

A contractual exclusion of warranty is permissible outside the scope of application of Section 9 of the Austrian Consumer Protection Act (Konsumentenschutzgesetz). Because of the exclusion of warranty in the contract of sale, the seller is only liable for characteristics that are expressly stipulated, but not for characteristics that are usually assumed. The plaintiff cannot infer a promise of roadworthiness from the presence of a valid inspection sticker, the mileage, or the purchase price.

However, if the seller were a commercial car dealer, the waiver of warranty would not include roadworthiness and operational safety, as these are deemed to be conclusively warranted in such a case.

OGH 4 Ob 96/24g (25 June 2024)