The guarantee in the sale of vehicles between private individuals

Solicitor in la Axarquía

The guarantee in the sale of vehicles between private individuals

Buying a car is a major investment for most of us. Before making the outlay, to avoid future headaches, it is advisable to seek the advice of an independent professional.

This is even more important if we buy the vehicle from a private individual. In a dealership or used car shop, we go as consumers and as such, we are protected by consumer and user regulations, which guarantee our rights against professionals and companies, who are normally in a superior position when it comes to contracting. However, when we deal with a private individual, we are dealing on an equal footing, on an equal footing, without having greater legal protection than the seller, which is why it is advisable to take extreme precautions, as the times and ways of making claims are more highly valued.

In the latter case, it is not consumer and user law that protects us. Sale and purchase between private individuals is regulated in the Civil Code, in the articles that regulate sale and purchase in general. Whatever the object we buy from a private individual, whether it is a house, a car or a head of cattle, we will have a period of 6 months to claim against the seller for any defects or flaws in the object purchased, unlike in the case of buying from a professional, where as consumers the period would be 1 or 2 years.

In the case of purchases of vehicles from private individuals, moreover, we cannot claim for any defects in the vehicle, but only for those that existed and were hidden at the time of the sale. Moreover, these defects must be of a certain extent, so that they either render the vehicle unusable for use, or if they had been known to the buyer, they would have caused him to pay less for the car, or not to have bought it at all. There is one exception: if the buyer should have been aware of the hidden defects because of his profession, he will not be able to complain afterwards. For example, a person working in a garage will have a really difficult time claiming for defects in the engine of the car he buys, which he should have checked, given his profession.

Thereafter, the options vary depending on whether or not the seller knew about the defects of the vehicle at the time of the sale, which in principle will be a very difficult point for the creditor to prove.

If the seller was not aware of the defects, or we cannot prove that he was aware of them, we can choose between rescinding the contract and recovering the costs incurred, which means handing the vehicle back to the buyer, receiving the money from him; or requesting a proportional part of the price to be returned to us, determined by an expert.

If we can prove that the seller had prior knowledge of the damage, we have the same two options, but we can also claim damages. This means that we will be able to claim compensation from the seller if, for example, we have an accident as a result of the vehicle’s defects, or if it leaves us stranded and we have to pay for another means of transport, or if we have to hire a mechanic to tell us what is wrong with our new car.

Finally, it should be noted that, apart from this type of claim, which can only be made within 6 months, there is another route for more serious cases. For major defects, which render the vehicle as such absolutely useless, the action of aliud pro alio(one thing for another, or “a pig in a poke”), for which the time limit is much longer, 5 years; and allows recovery of the full amount paid for the car, together with the damages suffered.

In order for the vehicle to prosper, it must be useless as such, i.e. it must not serve the purpose for which it was purchased, that is to say, it must have been taken for a ride. Let’s say I want to buy an off-roader to go to the countryside at weekends and I am sold one that looks like one, but it turns out that the 4×4 mode does not work, which in practice makes it unusable as an off-roader. We would not have been taken for a ride and we would have the option of recovering the money and p. e.g. the mountain rally tickets we had bought thinking we could go with our new vehicle.

As can be seen, these are all complex issues and difficult to prove in a hypothetical lawsuit against the seller, so it is highly recommended to have a trusted mechanic carry out a complete check of the vehicle before the purchase, in order to avoid future conflicts.

Equally important will be to have a lawyer draw up the purchase contract or review it for us. Because, among other things, it is legal and valid to contractually waive claims against the seller for defects that come to light afterwards. In addition, the disclaimer can be disguised in various ways to make it go unnoticed. In this way, if we sign a contract that contains a waiver clause, we will only be able to go against the seller for the defects that appear if we can prove that the seller knew about them at the time of the sale, which, as we have been saying, is very complicated.

Finally, it is important to remember that prevention and prior advice can avoid or reduce problems, thus saving time and money.


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