Luxury car bought from a private seller: your remedies for a hidden defect

Key points

• Between private individuals, only the hidden defects warranty of the Civil Code applies: no conformity guarantee, no presumption in the buyer's favour.
• The buyer must prove everything: the defect, its hidden nature, its prior existence and its seriousness. Without an expert inspection, the case does not hold.
• The "sold as seen" clause is valid, unless the seller knew of the defect.
• A seller in good faith returns only the price and costs; one in bad faith must also make good all the loss.
• On a prestige car, everything is decided before the sale: inspection, written statements, escrowed price.

Only one warranty: the Civil Code's

The statutory conformity guarantee of the French Consumer Code applies only when the seller is a professional and the buyer a consumer. Between two private individuals, the buyer can only invoke the hidden defects warranty (articles 1641 et seq. of the French Civil Code). It requires a hidden defect that predates the sale and is serious enough to make the car unfit for its use, or to reduce that use so much that the buyer would not have bought it, or would have paid less.

The prestige car market also includes sellers who present themselves as private individuals but regularly buy and resell. If the activity is habitual, the seller may be classed as a professional, with the obligations that go with it: a point to check before buying, and to raise in the event of a dispute.

The burden of proof rests entirely on the buyer

With a professional, a defect that appears within twelve months of delivery of a used vehicle is presumed to have existed from the outset. Between private individuals, there is no such thing: the buyer must show that the defect existed on the day of the sale, at least in embryo, that it could not be detected by a normal inspection (article 1642 of the French Civil Code), and that it is serious. A noise audible during the test drive or a visible scratch are not hidden defects; an internal crack, a faulty control unit or corrosion under the protective coatings may be.

This is why the expert inspection is the pivot of any case. It must be adversarial: the seller is summoned by registered letter to attend or be represented. Failing agreement, the court may order an expert inspection before any trial (article 145 of the French Code of Civil Procedure). And until then, no repairs: they would erase the evidence.

The "sold as seen" clause: a shield with holes

Between private individuals, the seller may stipulate that they give no warranty, but only if they were unaware of the defect (article 1643 of the French Civil Code). If they knew of it and stayed silent, the clause has no effect. It is for the buyer to prove this knowledge: earlier repair invoices, declined quotes, exchanges with a garage, messages, service history, even an old roadworthiness test that already flagged the defect.

For a classic car, the question often arises from another angle: authenticity. A replaced engine, a rebuilt chassis or numbers that do not match are not always defects in the strict sense, but may amount to a lack of conformity with what was promised, or to deception if the seller lied.

What the buyer can obtain

• Return the car and get the price back, or keep it and obtain a price reduction (article 1644 of the French Civil Code).
• Against a seller in good faith: the price and the costs of the sale, nothing more (article 1646 of the French Civil Code).
• Against a seller who knew of the defect: in addition, full damages, repairs, towing, hire of a vehicle, loss of use (article 1645 of the French Civil Code).
• The buyer cannot require a private seller to repair the car: repair or replacement fall under the conformity guarantee, reserved for sales by a professional.

The timetable to respect

The buyer has two years from discovery of the defect to act (article 1648 of the French Civil Code), within a limit of twenty years after the sale (article 2232 of the French Civil Code). An expert inspection ordered by the court suspends the time limit. In practice, it is better not to wait: a registered letter to the seller within days of the breakdown, then the adversarial expert inspection, then, failing agreement, legal action.

Before buying: three habits that avoid a lawsuit

• Have the car inspected by an independent expert, and for a classic car check the numbers and the authenticity documents.
• Obtain the seller's statements in writing: accidents, restorations, replaced parts, known defects. What is written can no longer be denied, and makes bad faith easier to establish.
• Do not pay on handing over the keys without a safeguard: have the price escrowed.

With escrow, the buyer, as depositing party, pays the price into a CARPA account; the seller, as beneficiary, knows the money exists. The funds are released only once the conditions precedent set in the agreement are met: favourable inspection, handover of the crossed-out registration certificate, the vehicle status certificate and the transfer code. The parties may also keep part of the price in escrow for a few weeks after delivery. For the full course of a sale, see our guide to selling a luxury car between private individuals and our article on hidden defects and the trade-in of a luxury car.