Last Updated on October 21, 2022
Once I met in an ad for the sale of used items a postscript about private warranty in large letters and with exclamation marks: “In accordance with EU law, every private seller must write that returns and replacements are not made and nothing is guaranteed.” Since I have not met with such a duty, I decided to investigate this issue.
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When does a private seller become a professional seller?
A private seller and a professional seller have completely different responsibilities, so this question is the most important one.
There are no unambiguous criteria, only the most general ones are given. Personally, I know one case when a person bought things on Flohmarkts and then resold them and the Finanzamt wrote her a letter that it was time to open Gewerbe. But on the Internet you can find some pretty wild cases.
The criteria are:
- Regular sale over a long period.
- Sale in large quantities. A border is 15-25 ads per month. For example, the court called the mother of four children an entrepreneur because she sold 80 things in one month.
- Reselling (this is exactly that lady from the flomarkts, everything is completely fair here).
- Selling new or identical items in large quantities.
- Professional online sales (website, online shop, user reviews, powerseller indication in Ebay).
- Selling to third parties (sister asked you to sell a couple of things for her – and now you are already an entrepreneur)
Why is becoming an entrepreneur a problem? There will be no taxes for small amounts, but the incorrect execution can cause Abmahnungen (money penalties). In the court decision, the cause of the dispute is almost always not the activities of the Finanzamt, but the complaint of “competitors”. So if you sell something decent (appliances, jewelry, etc.), be careful and study the problem:
registration as entrepreneur (Gewerbe),
duty of Impressum,
refund policy (Rückgaberecht),
product labeling, information about the material for textile items.
In addition, the sale of some goods within a year after purchase will cause problems. There is a group of non-daily goods, the resale of which for a short period is considered speculation. Such goods include, for example, jewelry or paintings. Profits from speculation must be taxed.
Warranty and how to get rid of it
Sellers have a 2 year warranty. In order not to fall under this rule, people write different postscripts under the ads.
Most of the statements about the refusal of a guarantee on the basis of EU laws do not save you from the warranty at all.
Firstly, the EU has nothing to do with it, warranty issues are regulated by German law.
Secondly, the seller of the technics must still answer if it does not work or if significant shortcomings were hidden.
Thirdly, a private seller should not give a warranty when selling used items, so there is nothing to refuse.
Fourthly, the obligation to prove that the problem was already at the time of sale lies with the buyer, and this is not so easy to prove.
What do smart online lawyers recommend?
I am not a professional lawyer, but only collect available information and do not bear responsibility for possible problems.
„Nach aktuellem EU-Recht muss ich darauf hinweisen: Dies ist ein Privatverkauf, womit keine Rücknahme oder Umtausch gewährt werden kann“
“Gekauft wie besichtigt” – does not free from flaws invisible to the naked eye
„Keine Garantie“ – the law is not about a warranty, but about Gewährleistungspflicht (obligation to deliver the goods in good condition). In the new wording it sounds like Sachmangelhaftung
And if you write, then
They also offer different options
„Die Ware wird unter Ausschluss jeglicher Gewährleistung verkauft“
or, a more modern formulation of the same
„Ich schließe jegliche Sachmangelhaftung aus.“
„gekauft wie besichtigt unter Ausschluss jeglicher Gewährleistung“
It’s also good to add
„Die Haftung auf Schadenersatz wegen Verletzungen von Gesundheit, Körper oder Leben und grob fahrlässiger und/oder vorsätzlicher Verletzungen meiner Pflichten als Verkäufer bleibt uneingeschränkt.“
Describe the product
as detailed as possible, with all the scratches and flaws.
all registration numbers, if we are talking about technics, since scammers buy a thing, a second, broken one, a copy of which they already have, and present the broken one for compensation under warranty.
Secure the parcel
Have witnesses of the shipment and packaging of the goods, send with a guarantee (especially when it comes through Paypal), and do not send to other addresses that do not match the address of the buyer (especially when it comes trough Paypal)