Cars: beware of hidden defects

Cars: beware of hidden defects

"Two years ago, I bought a car "as is" from a private individual. In recent months, problems with the suspension have appeared. I think the seller was aware of these faults and hid them from me. Can I take legal action against him?

In a contract for the sale of movable property, the seller is liable for the qualities promised, as well as for any defects that detract from or diminish the value or usefulness of the thing sold. He is liable for these even if he was unaware of them (art. 197 of the Swiss Code of Obligations). However, in accordance with article 200 paragraph 2 of the Swiss Code of Obligations, the seller is only liable for defects that the buyer should have noticed himself by examining the item with sufficient care if he has told him that they do not exist.

Article 201 of the Swiss Code of Obligations states that the buyer is obliged to check the condition of the goods when he takes possession of them and to report any defects to the seller. If he fails to do so, the item is deemed to have been accepted as is.

However, the buyer is not expected to discover hidden defects. If defects only become apparent later, they must be reported to the seller immediately, otherwise the item is deemed to have been accepted with these defects.

Moreover, any clause that restricts or eliminates the warranty is null and void if the seller has fraudulently concealed the defects from the buyer (art. 199 CO).

You have a period of one year from receipt of the goods in which to take action; however, the seller cannot rely on this limitation period if he misled the buyer.

You can therefore take legal action against the seller, since in your opinion it was not possible to detect such defects during a normal inspection. If you can prove that the seller intentionally misled you at the time of sale, he will not be able to tell you that it is too late to take action, nor will he be able to rely on the fact that he sold you the vehicle "as is". You will therefore be able to obtain compensation for the loss or, depending on the circumstances, rescission of the sale.

It should be noted that a seller who does not intend to assume any warranty whatsoever, even for hidden defects (provided they are not fraudulently concealed), must clearly stipulate this in a written contract; in your case, it will be up to the judge to decide whether, in view of the circumstances, the sale concluded "as is" excludes the seller's warranty.