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Fraudulently concealed defect: despite warranty exclusion

Especially in private sales, the warranty is often excluded. This exclusion does not protect the seller, however, if he fraudulently concealed a defect. Then you can assert claims despite an exclusion clause.

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Your chances of getting your money back

The seller cannot rely on an agreed warranty exclusion insofar as he fraudulently concealed a defect or assumed a guarantee (§ 444 BGB). Fraud exists if he knew the defect and, in breach of duty, did not disclose it.
If there is fraud, the normal warranty rights exist, subsequent performance, reduction, rescission or damages, despite the exclusion. In addition, the limitation period is often extended.

What you should do now

  1. 1

    1. Document the defect

    Secure evidence of the defect and its recognizability for the seller.

  2. 2

    2. Check knowledge

    Clarify whether the seller knew the defect and should have disclosed it.

  3. 3

    3. Assert claims

    Assert warranty rights in writing despite the exclusion.

  4. 4

    4. Observe the deadline

    Observe the limitation period, which can be extended in case of fraud.

How to spot the scam

  • The seller evidently knew of the defect and stayed silent.
  • Evidence of the seller's knowledge is missing.
  • Limitation periods are not observed.

Frequently asked questions

Does the warranty exclusion apply with a concealed defect?

No. If the seller fraudulently concealed a defect, he cannot rely on the exclusion (§ 444 BGB). Then, despite the exclusion clause, you have the normal warranty rights, for example rescission, reduction or damages.

When is there fraud?

When the seller knew the defect or considered it possible and accepted it and concealed it despite a duty of disclosure, although he knew it was important for your purchase decision. Mere ignorance or a defect recognizable during the inspection usually does not establish fraud.

How do I prove fraud?

You must set out and prove that the seller knew the defect and concealed it in breach of duty. Helpful are, for example, earlier repairs, correspondence, witnesses or expert opinions. Since the proof can be difficult, careful documentation is decisive.

Take action now

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General information for self-help, not legal advice (RDG). In case of a high loss or uncertainty: contact a consumer advice center or a lawyer.