The story: a car that caught fire on the road
Ms Faber bought a used car from a dealership. Four months later, during an ordinary drive, the car caught fire and burned out completely. The driver escaped unharmed, but the car was reduced to a wreck. A tow truck brought it to the seller, who then sent the wreck on to a scrap company. Before anyone thought of commissioning an expert opinion, the car had been scrapped.
When the buyer demanded compensation, it turned out that it was no longer possible to establish why the car had caught fire. A manufacturing defect? Neglected servicing? Driver error? There was no evidence and there could be none — the object of proof lay crushed in a scrapyard.
It looked like a lost case. The Court of Justice saw it differently
Under the classic rules it is the buyer who must prove that the goods were already defective at handover. With no wreck and no expert opinion, such a case should collapse at the start. Yet Ms Faber’s case went all the way to the Court of Justice of the EU — which in 2015 turned the matter on its head (judgment in case C-497/13, Faber).
The Court held that a consumer needs to show only two things: that the goods do not work as they should, and that this became apparent within the protection period after delivery. The consumer does not have to prove what exactly caused the failure, nor that the cause is attributable to the seller. The rest is handled by a presumption: the seed of the defect is deemed to have been present in the goods at delivery — and if the seller claims otherwise, it is the seller who must prove it.
The German Federal Court of Justice took the same path
A year later the same mechanism was confirmed by the German Federal Court of Justice (BGH, judgment of 12 October 2016, VIII ZR 103/15). There, in turn, a buyer had purchased a used BMW 525d from a dealer for 16,200 euros. After roughly five months and 13,000 kilometres the automatic gearbox began refusing to cooperate — the car stalled instead of pulling away. The cause could not be clearly established, and the lower courts dismissed the claim: perhaps an operating error, who can tell.
The BGH set those judgments aside and changed its own long-standing case law. Since that ruling the principle in Germany is: the consumer-buyer shows the symptom, the seller must rebut the presumption of a defect. If the seller cannot show that the fault stems from something that happened only after the car was handed over — the seller loses.
Today the presumption runs for a full year
At the time of the Faber and BMW cases the presumption covered 6 months from delivery. Since 2022 it is even better: a fault that shows up within one year of collecting the car benefits from the presumption that the defect already existed at purchase (§ 477 BGB). The condition: you buy as a consumer, and the seller is a business — an Autohaus, a used-car trader, a dealer.
In practice this reverses the roles at the hardest point of every car dispute. It is not you who commissions costly expert reports to find out whether the turbocharger had a material defect. It is enough to demonstrate the fault and the date — from there, it is the seller who has to defend himself.
Limits: when the presumption will not help
The presumption does not operate automatically in every situation. With a used car the boundary is normal wear and tear — worn brake pads or a tired clutch in a ten-year-old car are not defects, just the natural course of things. The presumption also falls away where the nature of the fault shows it arose only after handover — collision damage, for example. And finally: it protects only a consumer buying from a business. If you bought from a private individual or for your company, the rules of evidence are entirely different and far less favourable.
“Bought as seen”? Not against a dealer
Many sellers write warranty exclusions into their contracts — “gekauft wie gesehen”, “ohne Gewährleistung”. Against a consumer such clauses are ineffective: a business cannot rely on them (§ 476 BGB). The only thing the law allows a dealer with a used car is to shorten the limitation period from two years to one — and only if you were informed of this before concluding the contract and the shortening was expressly and separately agreed in it.
The car has started breaking down — what to do
Do not wait: the presumption covers faults that show up within one year of collection, and the earlier you report the defect, the stronger your position. Notify the seller of the fault in writing and set a deadline for repair before you hand the car to a workshop on your own. Secure the evidence — photos, error printouts, invoices, correspondence. And the most important lesson from the Faber case: do not dispose of the car or its damaged parts until the dispute is over. A wreck in a scrapyard ends all proof-taking — for you as well.
What you can claim
The primary claim is to have the car brought into conformity with the contract: repair or delivery of goods free of defects (§ 437, § 439 BGB). The seller may refuse the option that would involve disproportionate costs (§ 439 (4) BGB). Where repair fails or the seller refuses, withdrawal from the contract or a price reduction come into play, alongside damages — for example for the cost of a replacement vehicle.
Replacement of a used car? It depends on what the seller owed
Can you demand delivery of another car instead of a repair? With a used car the answer depends on what exactly the seller committed to. German law distinguishes here between an obligation relating to a specific item (Stückschuld) — the seller owes this one particular vehicle — and a generic obligation (Gattungsschuld), where the seller owes any item with the agreed characteristics.
In the typical forecourt scenario it is a Stückschuld: you inspected a particular car, checked its mileage and history, negotiated the price for that very vehicle. There is no second identical used car — each one has its own history. Replacement is therefore, as a rule, impossible, and the available remedies are repair, withdrawal from the contract or a price reduction.
It is entirely different where the contract describes the car by parameters alone. This is exactly the case dissected in German legal training: a customer ordered from a dealer the sourcing of a used car of a specified model — no older than the agreed year, with mileage up to 10,000 kilometres, with air conditioning and a reversing camera, at a fixed price. She did not choose a particular vehicle, finding one was the seller’s task. Four months after collection the engine caught fire on the road, the car burned out completely and the cause could not be established. But since the seller owed “a” car with the agreed characteristics (Gattungsschuld) rather than that one vehicle, the destruction of the car ended nothing: the customer could demand that another car with the same parameters be sourced — still available on the market at a similar price.
The practical takeaway: whether you can demand replacement after a serious failure is often decided by the wording of the contract and the listing — so secure them and show them to a lawyer before you choose your remedy.
The cases described here come from publicly available judgments: the judgment of the Court of Justice of the EU of 4 June 2015 (C-497/13, Faber) and the judgment of the German Federal Court of Justice of 12 October 2016 (VIII ZR 103/15).