Second-hand cars: a fool's bargain

Second-hand cars: a fool's bargain

I recently bought a second-hand car for CHF 7,500. After buying the car, I went to a number of different garages and was told by everyone I spoke to that the car had been recalled and was no longer in production due to problems with the automatic gearbox. So I went back to the seller to return the car. He refused to take it back. What can I do about this?

Bernard, Geneva

Article 197 of the Swiss Code of Obligations (CO) stipulates that the seller is obliged to guarantee the buyer both for the qualities promised and for defects which, materially or legally, deprive the item of either its value or its intended use, or which diminish them to a significant extent. A buyer who avails himself of the guarantee may, alternatively, rescind the sale, demand a reduction in price or request that the defect be remedied (art. 205 CO).

The defect is analysed in terms of the qualities promised or reasonably expected. These differ according to the age of the object: a certain amount of wear and tear on a second-hand vehicle cannot be considered a defect, whereas this would be the case for a new vehicle.

It should be pointed out that an exclusion of guarantee is not valid if the seller has fraudulently concealed the defects of the item from the buyer. However, it is up to the buyer to examine the item sold carefully, especially where the contract contains such a warranty exclusion clause, because if he is negligent, he cannot invoke the nullity of this clause.

If your vehicle is in normal working order, it may already have been recalled and repaired, in which case there is no defect and you have no grounds for cancelling the sale. The fact that the seller has not informed you that the car has been recalled and repaired does not entitle you to damages or even to compensation for non-material loss, which cannot be claimed in Switzerland for poor contractual performance.

On the other hand, if your gearbox is faulty and this problem is known to all the dealers of this make, and therefore also to your co-contractor, the latter should not have concealed from you that this model must be recalled, and you can either demand that the vehicle be repaired, or that the price be reduced, or even that your car be taken back in return for a refund of the price paid, as you wanted to do.