The contract of sale: what belongs in it and what does not

In Switzerland and Germany a contract for a car is formed without any formality — legally a handshake suffices. It gets written down anyway, for one reason: it is the evidence of what was agreed. Without it, two recollections face each other later, and the seller's and the buyer's differ reliably.

From which the basic rule for every point follows: what was only said aloud does not, in case of doubt, exist. The remark about the recently changed timing belt, the promise to send on the second key, the assurance that the car has never had an accident — each of those is worth something in the contract and next to nothing beside it.

Both sides sign two identical copies and each takes one away. Later changes are noted on both copies and initialled by both. It sounds fussy, and in a dispute it is the difference between a document and an assertion.

The first part reads like a form and is where most home-made contracts fail. Both parties appear with full name and full address, and both identity documents get looked at — not out of suspicion, but because a contract with an incompletely identified counterparty cannot be enforced when it matters.

The car is identified by its chassis number, not by its plate. The plate changes when the keeper changes; the chassis number does not. It is in the registration document and on the car itself, and comparing the two takes a minute.

The odometer reading belongs in the contract with a date, phrased in the way the seller can stand behind. “Reading as displayed” is not the same as “total distance actually covered”: anyone selling a second-hand car does not know the history before their time and should not pretend to. That single choice of words has decided a good many cases.

The price goes into the contract with its currency, and beside it how and when it is paid. That second detail often gets left out and is the more important one: it settles whether a deposit was paid, what happens to it if the sale falls through, and from when the car belongs to the buyer.

On a cross-border sale two further points want settling in advance: which currency is used, and who bears the cost of the transfer. Both belong in the contract, because otherwise they get negotiated on handover day between two people who have both run out of time.

Retaining title until payment is complete protects the seller and takes one sentence to agree. It is particularly useful where time passes between signature and receipt of the money — a transfer that only lands the next banking day, for instance. Until then the car stays with the seller, and that is the simplest protection there is.

A promise is an express statement about a quality of the car, and it moves risk from buyer to seller. If it turns out to be untrue, a blanket exclusion of liability does not save the seller — you cannot promise something and exclude it in the same breath.

Which makes “no accident damage” the most dangerous term in the whole contract, for both sides. It has no statutory definition: to one person it means no damage at all, to another no damage beyond a trivial scratch. Anyone using it should define it in the contract — for instance as “no damage to load-bearing parts, so far as the seller is aware”.

For the seller the safe wording is always the one that discloses their own state of knowledge rather than asserting a fact. “So far as known” is not a loophole but an accurate description: anyone selling a second or third-hand car knows about the years before only what the documents say.

Between private individuals statutory liability for defects may be excluded, and in practice it nearly always is. The sentence belongs in the contract, and it belongs there in a form both sides understand — not buried between two paragraphs about the accessories.

What that sentence cannot do matters just as much. It does not work against a defect the seller knew about and concealed. It does not work against a promise made in the same contract. And against a consumer it does not work at all where the seller is in truth acting commercially — anyone regularly buying and reselling cars is a trader, whatever the listing says about a private sale.

For the buyer that is no reason to argue but a reason for care: the exclusion is the price a cheaper private purchase costs. It is offset not by a better clause but by an inspection before buying — an hour at an independent workshop replaces every clause you were never going to get.

The contract does not end with the signature but with the handover, and that belongs in it with a date and a time. From that moment risk passes: what happens afterwards — a stone chip, a car park scrape, an engine failure on the way home — is the buyer's, unless a defect was behind it that was already present before.

What is handed over is not only the car but a list, and the list is in the contract. Anything not on it becomes the subject of a conversation the next day. That goes especially for things not in the car: the second key in a kitchen drawer, the second set of wheels in the cellar, the charging cable at the office.

Finally, the two points still open after the handover: deregistration or re-registration, and the insurance. Both countries require proof of cover before registering the car to its new keeper, and in both the seller's cover does not end automatically with the sale. Writing a deadline for re-registration into the contract saves the seller the penalty notices that would otherwise arrive in their name.

Some sentences appear in contracts because they appear everywhere, and achieve nothing. “Sold as seen” is the best known: on its own it covers at most defects that a viewing would readily reveal — it does not reach hidden defects or concealed damage. It replaces neither an express exclusion nor the list of known faults.

Nor does an invented right of withdrawal belong there, and nor does its opposite. A private car purchase concluded in person carries no general right of cancellation in either country — that exists for certain distance and finance contracts, not for a sale in a driveway. Anyone who wants a right of return agrees it expressly, with a deadline and a condition.

And finally: the contract states the price actually paid. A lower figure entered “for the paperwork” harms the buyer first, because their claim over a defect hangs on that figure, and then both sides. The same thought applies to details about the car that sound more convenient than they are — the contract is the document later read against whoever wrote it.

Ready-made templates are available from motoring clubs, consumer organisations and public bodies in both countries, and they are a good starting point. What they cannot do is know your situation: no template contains the list of your known defects, the description of your prior damage or the agreement about the second key that is still missing. Those lines you write yourself, and they are the part that matters.

On a cross-border sale it is worth an extra look at which law applies and where a dispute would be heard. Both can be recorded in the contract, and on a car in a higher price bracket both are the point at which brief legal advice costs less than the alternative.

Carvexia provides listings and prices and is a party to no contract of sale. The contract arises between buyer and seller, the payment runs between them, and what applies is in their paper and in the law of the country where the sale happens. This piece describes what experience says belongs in it; it is not advice on an individual case.