The VIII. Civil Senate of the Federal Court of Justice (BGH), which is also responsible for sales law, ruled in its judgment of 23.07.2025 (Ref.: VIII ZR 240/24) that even in the case of the sale of a classic car by a private seller, the indication of a condition note in the purchase contract in conjunction with the description of the condition of the classic car is regularly to be assumed to be a quality agreement within the meaning of Section 434 para. 1 sentence 1 BGB aF (since 01.01.2022: § 434 para. 1, 2 sentence 1 no. 1 BGB), unless special circumstances in the individual case speak against the agreement of a condition corresponding to the condition note as a condition of the vehicle.
For this reason, the seller could not invoke the exclusion of liability for material defects agreed in the purchase contract and customary between private individuals.
1. initial situation
In 2020, the plaintiff acquired an MG Type B Roadster built in 1973, which had an H registration, as part of a private purchase. The defendant seller had placed a sales advertisement for this vehicle on an online platform. The condition rating given there was "2-3". In addition, reference was made to the defendant's twelve years of ownership, the technically perfect condition of the vehicle and the ongoing maintenance and restoration measures carried out.
The subsequently concluded purchase contract, in which liability for material defects was excluded, contained the following note from the seller: "The seller declares the following binding information on the condition of the vehicle: - see expert opinion - grade 2-3".
When the contract was concluded, the plaintiff had an expert opinion from 2011 and one from 2017 regarding the vehicle. The first report gave the vehicle a condition rating of "2.0", the second a rating of "3".
At the beginning of 2022, the plaintiff presented the vehicle to the TÜV for a general inspection. This refused to issue an inspection sticker due to significant defects, including a floor assembly weakened by corrosion in various places, multiple rusted-through sills and a rusted-through wheel arch at the rear left and right.
After an unsuccessful request to remedy the defects, the plaintiff declared his withdrawal from the purchase contract. With his claim, he essentially demanded repayment of the purchase price from the defendant step by step in return for the return of the vehicle as well as compensation for expenses.
2. decision of the BGH
The action was unsuccessful in the lower courts (LG and OLG Hamburg). In the opinion of the lower courts, the seller could invoke the exclusion of liability for material defects agreed between the parties, as no agreement on the condition of the classic car had been made. The BGH took a different view - the plaintiff's appeal was successful.
The BGH ruled that there was a quality agreement in accordance with Section 434 (1) sentence 1 BGB aF, according to which the classic car had a condition corresponding to the condition grade "2-3", i.e. a condition in the middle range between the condition grades "2" and "3" according to the usual assessment criteria.
2.1 Contract interpretation leads to the existence of a quality agreement
Whether a quality agreement exists in an individual case is a question of contract interpretation that is in the interests of both parties.
In the area of the purchase of classic cars, the considerable legal and practical significance of condition grades must be taken into account in this interpretation. The use of condition grades to classify the state of preservation of classic cars in a multi-stage valuation model is common and customary in the industry. These generally known and recognized condition grades provide specific information about the state of preservation of a classic car. They have a significant influence on the value and therefore also the purchase price of the vehicle. For this reason, from the relevant perspective of an objective recipient of the declaration, the indication of a condition grade by the seller generally implies that the vehicle is in a condition corresponding to this condition grade.
Therefore, even in the case of the sale of a classic car by a private seller, a quality agreement can generally be assumed if a condition grade is specified in the contract documents in connection with the description of the condition of the classic car, unless special circumstances in the individual case speak against the binding agreement of a condition corresponding to the condition grade.
Reference to expert opinion does not constitute "third party knowledge" - binding information from the seller
According to the findings of the BGH, there are no such special circumstances. On the contrary: The further content of the purchase contract and the other circumstances of its conclusion confirm the existence of a quality agreement. According to this, the specification of the condition grade "2-3" should be binding. The reference to the expert reports in connection with the specification of the condition grade "2-3" in the purchase agreement was not to be interpreted to the effect that the seller merely wanted to express that the specified condition grades were "third party knowledge" for which he did not want to vouch.
The condition score of "2-3" stated in the purchase contract did not correspond to the condition score from one of the expert opinions, nor did it result from the calculation of an average of the assessments of these expert opinions. According to the objective horizon of the recipient, this could only be understood to mean that the defendant wanted to promise an improved condition compared to the last expert opinion.
Furthermore, according to the objective horizon of the recipient, the defendant's declaration in the purchase contract contained an indication of the current condition of the vehicle, which is generally decisive for the purchase decision. However, the expert opinions referred to points in time far in the past. The defendant's statement on the condition of the vehicle therefore went beyond the content of the expert reports and therefore does not constitute a mere communication of third-party knowledge.
Sales announcement supports the result of the interpretation as a quality agreement
The sales advertisement, which must also be taken into account for the interpretation of the purchase contract, supports this interpretation. In this advertisement, the seller had stated that he had known the condition of the classic car for twelve years from his own experience and had continuously maintained the vehicle in the good condition claimed by him through restoration and maintenance measures. In this respect, the statement in the purchase contract that the vehicle was in a condition of "2-3" could only be understood to mean that the seller wanted to describe the actual condition at the time of sale and also wanted to assume the warranty for this.
2.2 Exclusion of liability for material defects does not apply in the case of a quality agreement
Since, based on the findings of the VIII. Civil Senate, a quality agreement was made with regard to a vehicle condition of "2-3" for the classic car in dispute, the seller could not invoke the agreed exclusion of liability for material defects.
2.3 Court of appeal must examine the condition of the classic car
As the decision depends largely on whether the classic car was in a state of preservation in the middle range between the condition grades "2" and "3" in accordance with the quality agreement, the BGH set aside the judgment of the Court of Appeal and referred the case back to it for a new hearing and decision.
3. legal classification - case law references
In its judgment of 10.04.2024 (case no.: VIII ZR 161/23; DAR 2024, 390), the BGH pointed out that quality agreements play a decisive role in C2C sales contracts for classic cars. In the case decided, the BGH interpreted this information as a quality agreement for a 40-year-old classic car, in which the private seller had indicated a perfectly functioning air conditioning system, and denied the seller the right to invoke the likewise agreed exclusion of liability for material defects. Although the lower courts had also assumed a quality agreement, they had (legally incorrectly) given preference to the exclusion of liability for material defects due to the age of the air conditioning system and because it would be a wearing part.
It is established BGH case law that an effective exclusion of liability for material defects does not affect liability for a quality agreement (fundamentally BGH, judgment of 29.11.2006, VIII ZR 92/06, DAR 2007, 265). If in a purchase contract (here: between private individuals) both a certain quality of the purchased item and a blanket exclusion of liability for material defects are agreed, this is generally to be interpreted as meaning that the exclusion of liability should not apply to the absence of the agreed quality.
Since the modernization of the law of obligations on 01.01.2002, when examining the existence of a quality agreement (for consumers as well as for entrepreneurs), it should also be noted that the assumption of the agreement of a quality, for the absence of which the seller is liable in accordance with the provisions of the law of obligations, must be taken into account.The seller is no longer liable for the absence of a quality "in case of doubt" (according to the old BGH case law), but only in an unambiguous case (fundamental, BGH, judgment of 12.03.2008, Ref.: VIII ZR 253/05; DAR 2008, 338).
