Excluding warranty: the clause that holds

Without a special agreement, even a private seller is liable for the goods being free of defects at handover. That is the legal default, not a peculiarity of the trade: in Switzerland the rule sits in the Code of Obligations, in Germany in the Civil Code, and in both cases it applies unless the parties agree otherwise.

That agreement is exactly what the exclusion is. It shifts the risk of a hidden defect from seller to buyer: the rust under a seal, the gearbox that was already tired, the head gasket nobody saw. A twelve-year-old car for a few thousand simply cannot be sold privately on any other basis, because nobody can stand behind a condition they do not themselves know.

Two things it does not switch off, and both are why sellers lose in court despite having one: qualities you expressly promised, and defects you knew about and concealed. The rest of this piece is about those two gaps, because the clause itself is quickly written.

A workable wording is short and leaves no room: “The vehicle is sold with all warranty for defects excluded. The buyer has inspected the vehicle and taken a test drive.” Nothing more is needed, and nothing more helps. Long boilerplate off the internet often comes from commercial law and does not fit a private sale.

More important than the wording is where the clause sits and how it comes about. It belongs in the signed contract, not in the listing and not in a message. And it belongs in the contract both parties read before signing — a line you add after handover does not work backwards.

Both legal systems draw the same line, even if they word it differently. Swiss law voids an exclusion where the seller deliberately concealed the defect from the buyer. German law says the seller cannot rely on an exclusion to the extent that he deliberately concealed a defect. The outcome is the same in both: the clause carries the unknown, not the withheld.

Concealment does not require a plot. It is enough that you knew of a material defect or thought it likely, knew it mattered to the buyer, and said nothing anyway. The accident damage three years ago, the timing chain rattling on a cold start, the air conditioning that has only blown lukewarm since spring, the oil consumption that has you topping up every two thousand kilometres — these are the cases that turn into proceedings.

The inverse is the genuinely good news: what you disclose can no longer be held against you. A seller who names the accident damage in the contract does not sell worse — he sells once instead of negotiating twice, and has peace afterwards.

“Vehicle has various faults” is worthless. A catch-all describes no particular defect, and the buyer cannot have decided about something he could not identify. What works is a list naming each item so a third party could find it again.

How much detail depends not on the car's value but on how surprising the point would be to the buyer. Rust on a fifteen-year-old estate surprises nobody; a replaced side member on the same car does.

The exclusion covers what the car cannot do. It does not cover what you claimed it could. If the listing says “no accidents”, “full service history”, “no owners but me”, that is a statement about condition — and if it is untrue, no exclusion saves you, because an exclusion concerns liability for defects, not for the promise itself.

The words that cause the most trouble sound harmless: accident-free, freshly tested, full main-dealer history, non-smoker, one owner. Every one of them is checkable, and every one is ultimately a statement of fact you will have to back up in a dispute.

Two remedies: first, claim only what you can prove; second, write down the state of your knowledge. “No accidents to my knowledge — I bought the car in 2019 at 60,000 km” is an honest statement and a legally quite different one from “accident-free”.

The exclusion itself works the same way in both countries; the deadlines and duties that follow do not. Swiss law imposes a duty to examine and complain: the buyer must inspect the vehicle after handover and report a defect immediately, otherwise the goods count as accepted. German law has no such sharp immediate-complaint rule in a private sale.

Conversely, Germany draws the line between private and commercial more sharply. Anyone regularly buying and reselling cars becomes a trader at some point, and consumer sales law then applies — against a private buyer no exclusion is possible there. Exactly where that line runs is decided case by case; half a dozen sales a year is, on the case law, no longer self-evidently private.

The statutory windows in which a buyer can raise anything at all are, in both countries, on the order of one to two years from handover, and are set out in the Code of Obligations and the Civil Code respectively. Looking the figure up for the specific case beats relying on a guide's number — including this one's.

The first reflex is usually wrong. Neither a curt “it's in the contract” nor an accommodating “I'll pay half” helps before you know what this is about. Ask for the defect in writing, with date, mileage and if possible a workshop diagnosis. Only then can you judge whether the matter falls in your period at all.

Three questions almost always decide it: was the defect already present at handover or did it arise afterwards? Did you know about it? Did you promise the opposite? If all three answers favour you, the exclusion holds. If one does not, a settlement is usually cheaper than the fight.

What helps you here was created on handover day or not at all: a contract with its list of defects, photos of the condition, a handover record with time and mileage. With those you have a short conversation. Without them, a long one.

It replaces neither deregistration nor telling your insurer. As long as the car is registered to you, the new driver's fines, fees and premiums are yours — no contract changes that. Nor does it replace checking the buyer or securing payment; someone who never received the money is arguing about something other than defects.

And it does not replace the paperwork. A service book, an inspection report and the invoices for the last major work are not only price arguments but the record of what you knew and what you did not. A seller who produces everything he has stands well later, even if something breaks.

Carvexia is not a party to any of these sales. The marketplace carries the listing and makes the contact; contract, payment and handover are settled between buyer and seller. That is precisely why the clause in the contract has to be exact — there is no intermediary to interpret it in a dispute.