I have a problem and was wondering if anyone can offer a legal advice.
I sold my beloved Audi last week.
The buyer called me a few hours later saying the gear box is broken and he wants to return the car saying it is his right to do so.
I was shocked on the one hand because he is asking me for money back but on the other hand I was not surprised that he broke the car.
During the test drive the young guy was driving like a madman, pushing the car to the limits and changing gears up and down the way it should not be done even in a formula 1 car (my car had an automatic gear box with paddle shifters behind the steering wheel).
I don’t know what the damage is exactly (if the computer is giving him some notice or if he damaged it completely and the car is not drivable any more).
I owned the car for 5 years, have been doing all the service in Audi garage and never had any problems.
When I was selling the car it had no hidden faults and no issues whatsoever.
Obviously I do not want to accept a broken car now and the buyer has threatened if I don’t do it he will prosecute me and I will have to not only return his money but also pay all the costs.
No contract was signed during the sale, we just canceled the grey car together and he paid me cash.
I would appreciate if someone could give some advice because this whole situation is an absurd to me.
Nevertheless, the buyer is Swiss so he knows the local law better than me.
Your beliefs are wrong. Law applies to both natural persons and commercial dealers
You can't change a contract after the fact like that. In the absence of any written contract, such a wording would probably need to be in the ad for any legal effect
This is a mere civil matter, police won't get involved. He can go to court to settle it, yes. If he wins you would need to pay all the costs (within reason) and vice versa. Chances of him winning is far less than 100%, don't get intimidated so easily.
Well, just tell him your alternative theory: he broke the gearbox himself and is liable for repairs
Generally you're only liable for defects present at the time of the sale, including also things like that car corresponds to the description in the ad, but not the stuff that breaks after. It's kind of hard not to notice a broken gearbox during a test drive so I doubt he'd be able to revert a sale on that basis. Especially if it's been days since the sale - buyer has the obligation to inspect the goods and make such claims immediately ( https://www.fedlex.admin.ch/eli/cc/2...377/de#art_201 )
On a private sale such as this, the vehicle is sold "as is". It's up to the buyer to check the vehicle out and it's sold without any guarantee unless the vendor indicates otherwise in the sale contract.
You have no further obligations with respect to the vehicle.
I’d suggest you tell him the car gearbox was not broken when the car was delivered. Obviously he drove it away and did not return. Anything broken must have happened after he took delivery.
False. You need to explicitly indicate that in the sale contract or at least your ad / communications with the buyer. Without any indications to the contrary, there *are* still some basic implied guarantees the seller has to respect by law (Art 197-210 OR). It doesn't make a difference that the sale is private, c2c, rather than b2c.
Even with such an "as is" clause, the seller can still be made liable for defects he intentionally hid from the buyer. The buyer would however then need to prove the intent and that can be quite challenging
IANAL, he did drive the car away so if you're 100% honest and have a regular service history from the garage saying everything is ok, I would say "it worked when I sold it and the garage said everything was ok as well at the last service sorry you broke it" and wait for him to attempt a civil proceeding.
But you might need a lawyer at some point if you don't speak french.
>I will have to not only return his money but also pay all the costs.
OTH if it's really broken, it might cost a lot to repair....
When he was calling me with the news for the first time of course I told him he must have broke it himself because of his driving style.
He was saying it was impossible in such short time and that it must have been broken before. I was repeating the car was fine before and we went on like that for 3 or 4 times. He was saying message and I was telling him mine.
Regarding the legal insurance I have one with Bâloise, which is linked to my household insurance. But when I called them they told me it did not cover anything to do with cars... So I am not going to get help from them.
Anyway, I do not want to give up on this because I know the car was fine and it was his fault. Changing gears from 4th to 2nd when driving almost 100km/h or from 2nd to 1st when driving 50kmh like he was doing during test drive is not normal.
For me it sounds very strange if any one can buy a car, take it to the racetrack or to the forest, push it to the limits and when it gets a mechanical damage return it to the buyer.
Also, the fact that I am so intimidated by it even though I did not do anything wrong is not right. So thank you kerneltric for making that point as well.
Just tell him that if he wants, take legal action and you will will fight the claim and in the meantime you’ll call the police if he hassles you.... Don’t communicate with him any longer.
In such a he-says-she-says situation, Art 8 ZGB ( https://www.fedlex.admin.ch/eli/cc/2...5_233/de#art_8 ) is usually universally applicable - he who claims bears the burden of proof. The ball is in his court now, he has to prove beyond a reasonable doubt that the gearbox was broken at the time of the sale. If he manages to accomplish that, you would have to take the car back and pay up. That gearbox broke shortly after the sale is of course suspicious but probably not conclusive enough to rule out that he broke it after the sale.
Are you a member of one of the swiss automobile associations? TCS being the main one. If I remember correctly legal insurance is often included in their cover; at the very least they could give you a few pointers about your rights in this situation.
With TCS it’s a supplement. Not expensive, and well worth it. VD wanted to suspend my license for 6 months for a really minor fender-bender. No damage to my car, a few hundred to the other. One letter from the TCS lawyer got them to back off.
But insurance only works if you have it before the incident.
Yes I realize it looks suspicious but it’s not surprising to me after I saw how he was driving and treating the car. If anything I was surprised he did not destroy the car during the test drive. Unfortunately there was no one else with us who could confirm that.
The buyer however, was praising himself that once he lost his driving license for speeding and it was only 2kmh below the threshold which would trigger the fine based on his salary.
Going forward for sure I will insure myself, which I thought I was with Bâloise anyway...
But for now I guess I will need to hire a lawyer and pay from my own pocket if the official claim happens. Any recommendations of law firm specializing in such matters?
You don't need a lawyer yet. They would probably just repeat to you what we went through in this thread anyway and wouldn't be of any more help. He needs one - burden of proof and next move is clearly his, wait and see what he comes up with then respond accordingly.
For now tell him to consider the alternative theory that he broke the gearbox with his reckless driving and point to Art 8 ZGB - its his turn to bring up some conclusive evidence to support his claim.
The gearbox wasn’t broken. The new owner drove it away. Not possible with a broken gearbox. (Take a picture of your normal parking place - broken gearboxes often leak).
Don’t hire a lawyer, unless and until a formal claim is made.