Quite practical: underestimated danger during test drives

Quite practical: underestimated danger during test drives

While many car dealers are already eagerly awaiting the end of the lockdown and hoping for increasing sales figures in the new year, we would like to use the time - hopefully as short as possible - before the hustle and bustle starts again to ask you a question:How do you protect the cars you sell during test drives?

If you don't immediately have an answer to this question - be it for new or used cars, in business or private use - the current forced break would be an opportunity to think about something here. We strongly recommend that anyone who intends to sell a car and also offer a test drive (in most cases an essential part of the sale) to protect themselves (legally). To this end, a short agreement should be concluded with every potential buyer who wants to take a test drive in order to avoid (legal) disputes as much as possible.

The most important areas that such agreements should cover are documentation of the time, place and permitted scope of the test drive and, above all, clarification of liability issues. For example, the prospective buyer must be informed before the test drive begins if there is no comprehensive insurance for the car. If the seller fails to provide this information or is unable to provide evidence of it, he may have to bear the risk of damage caused by the prospective buyer due to negligence.

However, what should also be carefully documented is the identity of the prospective buyer, ideally with another identification document in addition to the driver's license. A recent decision by the German Federal Court of Justice illustrates the danger in such cases: a supposed prospective buyer sold the car that had been entrusted to him for a test drive to an unsuspecting buyer by presenting forged documents. The car dealer subsequently attempted to recover the car from the buyer, but failed because the buyer acquired ownership of the car (in good faith). What's more: Since the buyer effectively purchased the car, his counterclaim against the car dealer for the release of the original registration papers was successful. The car dealer could only assert claims for damages against the fraudulent prospective buyer - provided he could be found and liquid.

Since the Austrian regulations are quite similar in this context, we can only suggest that you only allow test drives after prior (legal) protection.

The author: Dominik Leiter is a lawyer and partner at Weisenheimer Legal in Vienna