Marina Romero, an Abogado with the international firm of De Cotta McKenna y Santafé sets out the pitfalls.
Everyone likes to drive a new car and although at the time of purchase the most important consideration is sometimes the cost. There are other points that all prospective car buyers should bear in mind. Although a well-priced car would seem like a good offer initially, it could become a nightmare of breakdowns and expensive car repair bills.
When buying a car we have various options, which are as follows;
We could buy a brand new car from a dealer.
Or buy a second hand car from a dealership, a professional car sales person or a private individual.
In the above-mentioned options, as well as the variation in price, there are other differences to bear in mind and these are mainly the protection provided by legislation to the buyer when possible mechanical problems arise.
Purchasing a car from a dealership or a professional car sales person
The advantage of buying from any of the above is that they have a legal obligation to provide a guarantee to the car buyer. The guarantee should be for a minimum of 2 years for new cars and 1 year for second hand cars starting from the moment that you take possession. The legislation providing these guarantees came into force on 11th September 2003 with the “la ley de Garantías en la venta de Bienes de Consumo” also known as the “law of guarantees for the sale of consumer products” Previously the length of the guarantee was only 6 months.
The guarantee is compulsory even if it is not mentioned in a contract. As well as the guarantee the car salesman or the dealership should provide a commercial guarantee and this is in effect an extension of the guarantee required by law.
The legislation protects the consumer if there appears to be a defect in the car or if the car does not have the characteristics, which were previously advertised. In this respect la ley de Consumidores y Usuarios also known as the law of consumers and users establishes that the product should contain the characteristics announced in the offer or advert even though this does not appear in the contract.
We have to distinguish two possible situations when defects or problems arise.
Firstly, if this occurs within the first 6 months of the guarantee the law presumes that the fault is a cause of the manufacturer and the consumer has the option to request that the seller repairs the defect at their cost or replaces the car for another. However the seller is not obliged to replace the car if he cannot do this or the defect in the car is not proportional to replacement or the car is a second hand car.
The guarantee provided by the law for both of the above situations is suspended until the car is repaired or replaced.
If repair or replacement is not possible or the repairs are not carried out within a reasonable period of time, the consumer has the right to either claim a reduction in the price or terminate the contract, which would imply that all the monies paid to date should be returned. Likewise if the consumer pays for the repair or the replacement of the car but is not satisfied with the result he can still request a reduction in the price or termination of the contract.
Secondly if 6 months have elapsed since you have been behind the wheel of the car and a defect arises, the car buyer is obliged to prove that the defect is a structural one or was caused by the manufacturer and that it has not been caused by the improper care or use of the car. Only if the buyer can prove that the defect is the manufacturer’s or the dealership will the repair obligations apply to the seller.
Legal proceedings
In the event that the buyer has to present a claim against the a seller for the above mentioned scenario, the car buyer should advise the seller of the defect within a period of two months from when the defect arose. In the event that it is necessary to issue legal proceedings, the car buyer would have 3 years from the date that he took possession of the car to issue proceedings against the professional car sales person or the dealership. A further advantage for the consumer would be that in the case of purchasing a new car and a defect arises as a result of the manufacturer then the car buyer can issue proceedings either against the manufacturer or the seller.
As you can see the car buyer is provided with protection by the legislation and the legislation also provides additional fines and penalties to those business men whose profession is selling cars who do not respect the legislation along with possibilities of resorting to consumer associations who can start class actions against car sellers and manufacturers.
Purchasing a car from a private seller
In the event that a second hand car is purchased from a private individual and not a professional car sales person, the legislation for the sale of goods to the consumer does not protect the buyer. Therefore in the event of any arising defects, the car buyer would have to rely on the Spanish civil code.
The defects that are covered by the Spanish civil code would be if the car could not be used or that the usage of the car is so diminished that if the buyer had known of the defects he would not have purchased the car.
Therefore in the event that any defects do occur in the car, unless these are obvious at the time of purchase, the buyer has the rights to terminate the contract or obtain a discount in the price. If the buyer elects to terminate the contract then he would also be entitled to compensation if the seller sold the car was aware of the defect.
