Is it necessary to explicitly disclaim warranties on "private" sales?

Question

When people in Germany and Austria sell their own second-hand goods (used clothing, toys, bicycles, etc.) via online classified ads or auctions, they almost always include a statement explicitly marking the sale as "private" and disclaiming any warranty and the possibility of returning the item for an exchange or refund. In German, this is often worded along the lines of "Privatverkauf, keine Gewährleistung und Rücknahme."

Does including this disclaimer confer any legal protection on the seller, or is it simply done as a courtesy to the buyer, or is it one of those bits of legalese that the lay public unthinkingly reproduce in the mistaken belief that it is somehow required?

I am specifically interested in the case of Austria but would also be interested to know the situation in Germany, since in my experience this boilerplate text is ubiquitous and identical in both countries.

Answer 1

germany

Yes, such clauses are common and useful. § 437 BGB describes the rights of the buyer in case of defects, such as reducing the purchase price, demanding cure, or revoking the contract. But these options only exist “unless otherwise specified”. That means an individual contract can exclude these rights (commonly called a Gewährleistungsausschluss).

There are, of course, some limitations to the right to disclaim warranties.

• The disclaimers are ineffective if the seller keeps a known defect secret.
• The disclaimers cannot absolve the seller from all liability.
• While disclaimers can be part of individual contracts, they cannot be part of pre-formulated general terms and conditions (Allgemeine Geschäftsbedingungen, AGB) since they would disproportionally disadvantage one party. The relevant limits are given in § 309 BGB.

Thus, such warranty disclaimers are common in private sales, but not generally possible in a B2C context. There is however some debate how a warranty disclaimer should be phrased properly. Your phrasing “private sale, no warranties or returns” might not be effective e.g. if its pre-formulated nature gives its the character of AGB, or if the unqualified disclaimer of warranties is construed as an invalid attempt to disclaim liabilities that cannot be disclaimed.

It might also be worth discussing what a “defect” is in this context. The sold goods have qualities that the parties agreed to, or that follow from the general purpose of the goods. If the goods do not feature these qualities, the goods are defective and (by default) the buyer can ask the seller to fix this, for example by withdrawing from the contract. In retail, it is also common to accept returns of non-defective items. But such returns are entirely a matter of goodwill and do not have to be disclaimed.

Answer 2

In Austria it's the same as in Germany. The basis for that is §929 ABGB:

Wer eine fremde Sache wissentlich an sich bringt, hat eben so wenig Anspruch auf eine Gewährleistung, als derjenige, welcher ausdrücklich darauf Verzicht gethan hat.

The funny part is, that §929 also ensures that a thief will not get an warranty claim on his stolen goods.