A moped that's bought and running

A moped that's bought and running

"I sold my moped to a private individual. Am I obliged to reimburse him, given that the written contract of sale stipulated that the moped was sold as is and without warranty?

Thomas, Geneva

The seller has a warranty obligation towards the buyer in the event of defects in the item sold, even if the seller was unaware of the defects. The buyer must check the condition of the item as soon as possible and, if he finds any defects, notify the seller immediately. If he fails to do so, he is deemed to have accepted the item as is, unless the defects could not have been discovered by means of the usual checks. Should any defects become apparent at a later date, they must also be reported to the seller immediately.

However, it is possible to include in the contract of sale a clause excluding the seller's liability for defects. For such a clause to be valid, it is necessary for the parties to have genuinely intended to exclude the warranty for defects and for this intention to have been clearly expressed in the contract.

Despite the existence of such a contractual clause, the seller remains liable for defects in two cases: when the defect was not envisaged by the parties when they entered into the contract and it significantly hinders the purpose of the purchase, i.e. it prevents the purchaser from making normal use of the object; when the seller, who was aware of the defect, provides the purchaser with false information about the quality of the object or deliberately conceals from the purchaser the defect that the purchaser was unaware of and could not discover.

In cases where the seller is responsible for the defect, the purchaser may demand that the seller replace the defective item, grant a price reduction or refund the price paid and take back the item sold.

You were right to include a contractual clause excluding your liability, because if the defect that renders the moped unfit for the use for which it was intended was foreseeable, the purchaser cannot demand that you reimburse the price paid. On the other hand, if the defect prevents the purchaser from making normal use of the moped and the defect was unforeseeable, then the exclusive liability clause does not apply and you are therefore liable. In this case, the purchaser may demand reimbursement of the price paid and must return the moped to you.

As you will have realised, you should never hide a defect from the buyer, because if the buyer finds out that you knew about the defect, you will be liable under the warranty.