State of sale

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In business, the state of sale is the current condition of used merchandise that is intended for sale .

General

Used items are processed in or on behalf of second-hand shops in such a way that material defects have been eliminated and they are ready for the market again . The state of sale of used items also plays a major role in online marketplaces such as Amazon or eBay . All sellers - entrepreneurs or private individuals - of used items are obliged to mark used items as such (“not new”) and to classify the quality ( degree of preservation from “as good as new” to “significant signs of use”). Used items have either already been used as intended ( wear and tear ) or are subject to aging solely due to their age; this also includes antiques . The sales condition of used cars can vary between “as good as new”, “accident-free” and “damaged vehicles” .

Legal issues

The BGB differentiates between new and used items, because in Section 476, Paragraph 2, Clause 2 of the BGB, there is a provision according to which a shortened limitation period of one year may be agreed for used items in the event of material defects . However, the BGB dispenses with a delimitation. The prevailing opinion is based on a used item if it has already been used as intended by a third party or the seller . The legal question of whether a purchase item is new or used depends on whether the item has already been used. In the case of a motor vehicle, it must be determined whether it has already been used for the purpose of participating in road traffic; it is then a used car.

If the buyer is not present in person (as is the case with online marketplaces ), used items also enjoy the legal protection of Sections 475 ff. BGB in the context of the sale of consumer goods in accordance with Section 474 (3) BGB. If an object is presented in a poorer way in contradiction to the objectively identifiable facts, for example in order to shorten the limitation period and therefore a new object is classified as used, this is a circumvention of the protective regulations for the sale of consumer goods. The provisions on the sale of consumer goods do not apply in accordance with Section 474 (2) of the German Civil Code (BGB) to used items that are sold in a public auction ( e.g. lost and found items ) in which the consumer can personally participate.

In the case of a used car , unless there are special circumstances, normal age-related and usage- related wear is customary and acceptable. In the case of motor vehicles, in consideration of general road safety , the seller is obliged to point out accident-related defects that the buyer should not expect. The limit for minor damage that is not subject to notification must be drawn very narrowly for passenger cars. In the case of passenger cars, minor damage is only considered to be very minor external (paint) damage, but not other (sheet metal) damage, even if it did not have any further consequences and the repair effort was only minimal. The exterior mirrors or glass panes replaced after an accident no longer fall into the category of minor damage and must be mentioned in the sales contract . It is an accident vehicle if the damage goes beyond the minor damage. The character of an accident vehicle cannot be changed by any kind of repair. A concealment of this damage is - not only in the case of cars, but in the case of all used items - fraudulent deception according to § 123 Paragraph 1 BGB, which can be effectively challenged by the buyer and leads to the ineffectiveness of the sales contract.

Even animals can purchase the animal in "new" and "used" are classified and can not be treated as "used" in general; young pets or live fish are to be considered "new". The Federal Court of Justice (BGH) confirmed this view of the legislature in the case of a six-month-old foal .

Selling price

In general, the selling price depends on the current state of sale of an item. The greater the defects compared to a new product, the greater the depreciation that must be reflected in the sales price. The state of sale of used vehicles affects their market value , which in the case of accident vehicles can drop to a mercantile reduction in value . However, the selling price of a used item does not always have to be lower than the market price of comparable new items. Because of their rarity or scarcity , stamps , works of art , coins ( degree of preservation of coins ) or other collector's items have a collector's value above their original acquisition cost .

See also

Individual evidence

  1. ↑ Markus Artz / Peter Bülow, Handbook of Consumer Private Law , 2005, p. 409
  2. ↑ Otto Palandt / Walter Weidenkaff, BGB Commentary , 73rd edition, 2014, § 475 Rn. 11
  3. ↑ BGHZ 170, 31 ff.
  4. ↑ Kurt Reinking, Effects of the Law of Obligations Modernization Act on the Purchase of New and Used Cars , in: Deutsches Autorecht , 2001, p. 10
  5. ↑ Damian Wolfgang Najdecki, Circumvention of the protective regulations for the purchase of consumer goods , 2008, p. 124
  6. ↑ BGH, judgment of November 23, 2005, Az .: VIII ZR 43/05 = NJW 2006, 434
  7. ^ BGH, judgment of February 8, 1967, Az .: VIII ZR 205/64
  8. ↑ BGH, judgment of October 10, 2007, Az .: VII ZR 330/06 = NJW 2008, 53
  9. ^ BGH, judgment of October 10, 2007, Az .: VII ZR 330/06
  10. ↑ BT-Drs. 14/6040 of May 14, 2001, draft of a law to modernize the law of obligations , p. 245
  11. ↑ BGHZ 170, 31