Sold as seen: the second-hand car that broke down, in four civil codes and three common-law systems
Italy, France, Germany and Spain compared on hidden defects in a private sale - the fault question, whether 'sold as seen' survives, the clocks that run from delivery rather than discovery, and why England, California and New York offer nothing at all.
The problem
You bought a car from a private seller. Three weeks later the gearbox went, and the repair costs a meaningful fraction of what you paid. The seller says the car was fine when it left, that you looked at it, and that the receipt says sold as seen. Whether that is the end of the matter depends almost entirely on which country you are in - and this is the cluster where the split between the civil-law and common-law systems is not a matter of degree but a matter of whether you have a claim at all.
What they agree on
In all four civil codes the seller owes a warranty against hidden defects by operation of law, with no promise given and no fault required. The wording is close enough across the four to be recognisable as one rule. Italy's art. 1490: the seller must warrant that the thing is free of defects 'che la rendano inidonea all'uso a cui e destinata o ne diminuiscano in modo apprezzabile il valore'. France's art. 1641: defects 'qui la rendent impropre a l'usage auquel on la destine, ou qui diminuent tellement cet usage que l'acheteur ne l'aurait pas acquise, ou n'en aurait donne qu'un moindre prix, s'il les avait connus'. Spain's art. 1484 is almost a translation of the French. Germany restated the same idea in modern form in § 434, which since 2022 asks whether the thing meets the subjective, objective and assembly requirements at the passing of risk.
All four set the bar above mere imperfection. A cosmetic blemish is not enough anywhere; the defect must make the thing unfit for its intended use or materially reduce that use or its value. All four also exclude what the buyer could see: Spain says so inside the article itself - the seller 'no sera responsable de los defectos manifiestos o que estuvieren a la vista' - and Italy, France and Germany reach the same result through art. 1491, art. 1642 and the agreed-quality limb of § 434 respectively. And all four fix the relevant moment at handover: a defect that arises afterwards is not a defect the seller warranted, which is why so much of the argument in practice is an expert's opinion about whether the fault was latent on the day of sale.
What none of the four gives is a long time to act. Every one of these systems has a short clock, all of them shorter than the general limitation period in the same code, and in three of the four the clock starts before the buyer knows anything is wrong.
Where they part company
| Jurisdiction | What its law does | Why it matters |
|---|---|---|
| Italia | The clocks are short and they do not start at the same event. Italy's art. 1495 runs two at once: the buyer forfeits the warranty unless he notifies the seller of the defect within eight days of discovery - unless the seller acknowledged or concealed it - and 'l'azione si prescrive, in ogni caso, in un anno dalla consegna'. Eight days from discovery, one year from delivery, and both must be satisfied. | Eight days is the shortest notification period in the comparison by a wide margin, and the one-year outer limit runs from delivery whatever the buyer knew. The article does preserve a defence: a buyer sued for the price may still raise the warranty by way of exception even after the year, provided he gave notice within eight days of discovery and before the year ran. |
| France | France is the only one of the four that starts the clock at discovery. Art. 1648: the action must be brought by the buyer 'dans un delai de deux ans a compter de la decouverte du vice'. But the verb is 'intentee' - the proceedings must actually be started, and the French page is emphatic that a recorded-delivery letter, a negotiation or an amicable expert report does not stop the two years running. | The same latent fault appearing three years after purchase is actionable in France and long dead in Spain, Germany and Italy. And the French trap is the opposite one: buyers who think they are protected because they complained in writing discover that the period ran while they negotiated. |
| Deutschland | Italy and Germany write the same rule from the opposite end. Italy's art. 1490 second paragraph: an agreement excluding or limiting the warranty 'non ha effetto, se il venditore ha in mala fede taciuto al compratore i vizi della cosa'. Germany's § 444: the seller cannot rely on an exclusion 'soweit er den Mangel arglistig verschwiegen oder eine Garantie fur die Beschaffenheit der Sache ubernommen hat'. | France and Spain make the exclusion valid on condition that the seller was ignorant; Italy and Germany make it invalid on condition that the seller concealed. At the poles the result is the same, but Germany's version adds a second killer nobody else has - the Beschaffenheitsgarantie. A seller who stands behind a specific quality, such as accident-free or a stated mileage, cannot invoke the exclusion for that quality, and no dishonesty need be shown. The word 'soweit' also limits the damage: the exclusion falls only as to the concealed defect or the guaranteed quality, not as a whole. |
| Germany makes the buyer prove the seller's state of mind, which is exactly what Spain relieves the buyer of. The German page is explicit that the burden of proving Arglist under § 444 lies on the buyer, and that this is where many private-sale cases fail. | Two systems that both look like 'the seller warrants regardless of fault' place the practical burden in different places. Under Spanish art. 1485 the buyer establishes the defect and the seller's ignorance is no answer at all; under German § 444 the buyer who faces an exclusion clause has to prove the seller knew and stayed silent. The same purchase, the same concealed accident damage, and materially different odds. | |
| Germany's periods are graded by what was sold, not by when it was found out. § 438(1): thirty years where the defect consists in a third party's right to demand the thing back or a right entered in the land register; five years for a building and for a thing used in accordance with its normal use for a building and causing its defectiveness; two years otherwise. § 438(2) starts the clock at delivery of the thing. § 438(3) then substitutes the regular limitation period where the seller fraudulently concealed the defect. | Two years from delivery is the ordinary answer for a used car, so a fault appearing after twenty-five months is normally time-barred even if it was latent from the start - which is also why the reversal of proof in favour of consumers under § 477 matters only within the first year. The concealment exception in subsection (3) is the reason a hidden accident history changes the whole timetable, not just the merits. | |
| Germany's definition of defect is structurally unlike the other three. § 434(1) requires the thing to satisfy the subjective, the objective and the assembly requirements simultaneously - so what the parties agreed is no longer sufficient by itself. § 434(3) adds fitness for ordinary use and the quality usual in things of that kind that the buyer may expect, expressly including 'Haltbarkeit, Reparierbarkeit, Funktionalitat, Kompatibilitat und Sicherheit', and makes public statements by the seller or another link in the supply chain, particularly in advertising or on the label, part of the owed quality, with three exceptions named in the text. | The Italian, French and Spanish articles ask a single question about fitness for purpose. Germany asks three, and the objective layer can be departed from only where something else was 'wirksam' agreed - which, in a consumer sale, § 476 restricts to an express and separate agreement rather than a line in standard terms. Between two private individuals § 434(3) sentence 4 permits a simpler arrangement. | |
| España | Spain says the fault-irrelevance out loud, in three words. Art. 1485: the seller answers for hidden defects in the animal or thing sold 'aunque los ignorase' - even though he was unaware of them. The second sentence then opens the only door: the rule does not apply where the contrary was stipulated 'y el vendedor ignorara los vicios' - both conditions, cumulatively. | This dismantles the private seller's standard defence - that he genuinely did not know - which may be perfectly true and does not help him. France has the identical rule in identical shape: art. 1643 provides that the seller is liable for hidden defects 'quand meme il ne les aurait pas connus, a moins que, dans ce cas, il n'ait stipule qu'il ne sera oblige a aucune garantie'. The Spanish article is the French one restated, and the two codes are twins on this point. |
| Spain has one clock and it is the harshest in the group. Art. 1490: the actions arising from the five preceding articles 'se extinguiran a los seis meses, contados desde la entrega de la cosa vendida'. Six months, running from delivery - not from discovery, not from the appearance of the fault. | A defect that surfaces in the eighth month is out of time in Spain on facts that are comfortably in time everywhere else here. This is the single most consequential number on the page for a reader with a Spanish purchase, and it is why the practical advice on the Spanish article is to complain in writing, dated, immediately. | |
| Italy and Spain give the buyer no right to have the thing repaired. Spain's art. 1486 offers exactly two options, chosen by the buyer: 'desistir del contrato, abonandosele los gastos que pago, o rebajar una cantidad proporcional del precio, a juicio de peritos' - with damages added only where the seller knew of the defects, did not disclose them, and the buyer opts for rescission. Italy's art. 1492, which sits behind art. 1490, gives the same pair: risoluzione or riduzione del prezzo, at the buyer's choice, the choice becoming irrevocable when made in the claim form. | Germany runs the other way and this is the sharpest doctrinal divide on the page. § 437 lists Nacherfüllung under § 439 first, and the structure of its cross-references makes cure primary: rescission, price reduction and damages in lieu of performance normally require that the seller was first given a fruitless reasonable period to repair or replace. So the buyer who demands his money back on day one is exercising a right in Spain and Italy and making the classic German mistake. Add § 323(5) sentence 2, which shuts out rescission for an insignificant breach while price reduction under § 441 stays open, and the German buyer with a small defect has one remedy where the Spanish buyer has two. | |
| Spain has an exclusion for the expert buyer that no other member carries. Art. 1484: the seller is not liable for defects that are not visible either, 'si el comprador es un perito que, por razon de su oficio o profesion, debia facilmente conocerlos'. | A mechanic buying a car privately in Spain is in a materially worse position than a mechanic buying the same car in Italy, France or Germany, where the buyer's occupation is not written into the test. The Spanish provision measures the concealment against this buyer's professional competence, not against a reasonably attentive buyer in general. | |
| Spain is the only member with a warranty about the seller's own conduct rather than the thing's condition. Since Ley 17/2021, art. 1484(2) makes the seller of an animal liable to the buyer for breach of 'sus deberes de asistencia veterinaria y cuidados necesarios para garantizar su salud y bienestar' where the animal suffers an injury, illness or significant behavioural change originating before the sale. | It is not a hidden-defect rule at all in shape - it asks what the seller did, not what the animal was like. France, Italy and Germany treat a sold animal under the ordinary defect provisions, so a French or German buyer argues about the pre-existing condition and a Spanish buyer can argue about the care the seller failed to give. |
The provision in each country
Each card links to the page that reproduces the official text and explains it in that country's own language.
Italia Codice Civile
- Art. 1490 Codice Civile The seller must warrant the thing free of defects making it unfit for its purpose or appreciably reducing its value, and a clause excluding or limiting that warranty has no effect where the seller concealed the defects in bad faith.
- Art. 1495 Codice Civile Two clocks: eight days from discovery to notify the seller, on pain of forfeiture, and one year from delivery for the action itself - with notification unnecessary where the seller acknowledged or concealed the defect.
France Code civil
- Art. 1641 Code civil The seller warrants against hidden defects that make the thing unfit for its intended use, or so reduce that use that the buyer would not have bought it or would have paid less had he known.
- Art. 1648 Code civil The action must be brought within two years of the discovery of the defect - and brought means proceedings actually started, not a letter or a negotiation.
Deutschland BGB
- § 434 BGB Since 2022 the thing must meet the subjective, objective and assembly requirements at the passing of risk - agreed quality, plus the usual quality including durability, repairability and safety, plus what advertising and labels led the buyer to expect.
- § 437 BGB The buyer's four remedies and the order they come in: cure first under § 439, then rescission or price reduction, then damages or wasted expenditure - each with its own conditions in the sections cross-referenced.
- § 438 BGB Two years for movables running from delivery, five for buildings, thirty for third-party rights - and the ordinary limitation period instead where the seller fraudulently concealed the defect.
- § 444 BGB The seller cannot rely on an exclusion or limitation of the buyer's rights so far as he fraudulently concealed the defect or gave a guarantee of quality.
España Código Civil
- Artículo 1484 del Código Civil The seller answers for hidden defects that make the thing unfit or materially reduce its use - but not for visible ones, and not even for hidden ones where the buyer is a professional who ought easily to have spotted them.
- Artículo 1485 del Código Civil The seller answers for hidden defects even though he was unaware of them, unless the contrary was stipulated and he was in fact unaware - both conditions together.
- Artículo 1486 del Código Civil The buyer chooses between undoing the sale with his expenses repaid and a proportionate price reduction fixed by experts - with damages on top only where the seller knew and said nothing and the buyer rescinds. Repair is not on the list.
- Artículo 1490 del Código Civil Six months from delivery of the thing sold, and the actions are extinguished - the shortest and least forgiving clock in the comparison.
Where there is no answer in the code
A jurisdiction listed here is a finding, not a gap. Either its answer lives outside the corpus — special legislation, case law, municipal rules — or its law simply has no such rule.
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United Kingdom
The courts answer it
Satisfactory quality in England and Wales is s. 14 of the Sale of Goods Act 1979 and, for consumer sales, the Consumer Rights Act 2015 - neither of which is in this corpus. Even if they were, neither would help here: the implied term as to satisfactory quality applies where goods are sold in the course of a business, so a purchase from a private seller falls outside it. The lookup returned nothing, and that is the right answer twice over.
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California
The courts answer it
Fraud, not warranty
A private used-car sale in California carries no implied warranty of quality. The buyer's route is deceit, and the lookup found precisely that - §§ 1572, 1709 and 1710 on fraud. That is a different cause of action with a different element set: the buyer must prove a misrepresentation or a concealment and the seller's state of mind, where the four civil codes impose liability without either. California is therefore recorded as absent from the warranty cluster and present in the separate comparison on a seller who hid a defect.
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New York
The courts answer it
Fraud, and the contract
The same position. Nothing in the New York Consolidated Laws pages answers a private used-goods sale; the used-vehicle warranty statute, Vehicle and Traffic Law s. 417, applies to dealers only. A New York buyer from a private seller is left with fraud and with whatever the contract itself says.
That's the law in seven places. Now let's settle your problem.
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This page compares provisions of several legal systems in general terms and links to the official text of each. It is not legal advice, it does not tell you which country's law governs your situation, and it takes no account of the circumstances of your case. For a live dispute, consult a qualified lawyer in the jurisdiction concerned.