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My rights as a motorist: legal traps for car buyers

May 19, 2020.

When buying a car, we tend to forget the legal aspects involved. This can subsequently lead to unpleasant surprises for both buyer and seller. A good enough reason for us to take a closer look at the legal situation for car buyers: together with our colleagues at Fortuna Legal Protection, we show you how to avoid the legal traps.

As the driver of a car, you come into contact with numerous areas of the law: When buying a car, it's the law governing contracts for the sale of goods and when driving, it's the road traffic act. The law governing contracts for work and services applies to repairs, while leasing law comes into play if you lease a vehicle. Zvonko Nevistic, Specialist Claims Jurist at Fortuna Legal Protection, says: "If we look at the cases here in Switzerland over the last 12 months, we clearly see what causes the most disputes: number one is buying a car. Followed by repairs, leasing and car hire."

 

 

Buying a used car is riskier

Are you buying your car fresh from the garage? Or "as seen" from a used car dealership or private owner? The two situations could not be more different. Here is a comparison:

 
  New car Used car
Manufacturer's warranty Yes As a rule, no
Warranty claim Yes, but is often excluded Yes, unless excluded in the contract
Period for notifying defects Immediately on discovery, max. 7 days Immediately on discovery, max. 7 days
Number of disputes 10% 90%

The comparison clearly shows that, from a purely legal point of view, purchasing a new car is much less risky than buying second-hand. Because the sale of a used car leads to many more disputes.

 

 

How to avoid the typical traps

Never before has buying a used car – or selling your own car – been so easy. Thanks to online platforms like autoscout24.ch, carforyou.ch and tutti.ch, the next bargain is literally just a click away. However, the purchase or sale of a used car has the potential to trigger disputes as the deal is often entered into by two private individuals with a lack of legal knowledge. What's more, older cars are more likely to develop faults than new ones. Good preparation can help you can avoid the main traps.

 

A brief example:

Mr Smith buys a 2010 Alfa Romeo with 100,000 kilometres on the clock from Mr Fisher. The purchase price is around CHF 10,000. Two weeks later, the Alfa Romeo experiences engine trouble. No specific warranty arrangements were made in the contract between the two parties. What rights does Mr Smith have?

 

Unless the contract states otherwise, there is a statutory warranty (i.e. guarantee) period of two years (Art. 210 Swiss Code of Obligations). In the case of used cars, this period can be reduced or even excluded. However, any reduction or exclusion must be set out in writing in the purchase contract. Private sellers often don’t realise this. That's why they are frequently held liable. In the example above, this would mean that the seller, Mr Fisher, would have to pay for the engine damage if the defect already existed at the time Mr Smith purchased the car.

"Buying a used car is often risky because the warranty is frequently excluded. In case of doubt, have the vehicle inspected by a car mechanic. If defects are discovered, they must be reported immediately – it's best to do so by registered letter."

 

Zvonko Nevistic,
Specialist Claims Jurist

Wear and tear or defect?

As a general rule, the car being sold must only be free of any defects that would substantially reduce its normal value or fitness for purpose. In the case of older cars, wear and tear is unavoidable. If the amount of wear and tear seems reasonable relative to the vehicle's age and mileage, it does not constitute a defect in the legal sense. In other words, normal wear and tear, deterioration and signs of age do not qualify as defects.

 

Normal wear and tear

If there is no defect in the legal sense, the buyer must accept the fault even when the statutory warranty for quality and fitness-for-purpose applies. The older the car and the greater the mileage, the more normal wear and tear is to be expected. This does not give rise to any rights.

 

Excessive wear and tear

If, on the other hand, the defects can be considered excessive, the buyer must report them immediately. In case of doubt, it's best to notify all defects. If not reported in good time, the buyer is deemed to have accepted the car – unless they were deliberately misled by the seller.

To exercise a warranty claim, the buyer must prove that the defect already existed but was not recognisable at the time the used car was handed over.

 

 

These three tips can help you minimise the risk involved in buying a used car

  • Inspect the car carefully

Always get a professional to look over the car, and ask for a second opinion if necessary. The important thing is to look at the log book and how much the car has been used to date (motorway vs short-distance mileage), check the previous owner(s), serial number, whether or not imported.

  • Prepare properly

Draw up a correct contract of sale/purchase; make sure oral assurances are put down in writing. Use the template you can download here. After buying: inspect the car again thoroughly. If you find any defects, inform the seller in writing immediately.

 

Download contract template

  • Make sure you have legal assistance

Motorists' legal protection insurance gives you protection against legal disputes and financial losses. You can get legal protection insurance from Generali from as little as CHF 95 a year. That way, you'll benefit from prompt, competent assistance provided by experienced legal experts.

 

Apply for legal protection insurance now