Used goods trade: Definition and legal framework
The used goods trade refers to the commercial sale of movable items that have already been put into circulation through initial use. Virtually all types of movable items can be the subject of used goods trading, in particular motor vehicles, furniture, electronic devices, clothing, as well as books and collectibles. This area of trade is subject to a wide range of specific legal regulations from the German Civil Code (BGB), the Commercial Code (HGB), the Value Added Tax Act (UStG), as well as special legal provisions.
Legal classification
Principle of freedom of contract
As in general goods trade, the principle of freedom of contract applies in the used goods trade. The contracting parties can generally determine the content, form, and subject matter of the contract themselves, provided there are no statutory prohibitions or mandatory regulations to the contrary. However, consumer protection regulations in particular must be observed in used goods trading.
Distinction between private sale and commercial trade
Legally significant is the distinction between private sales and commercial used goods trade. Commercial dealers are subject to more extensive information and warranty obligations, especially in relation to consumers.
General obligations in the used goods trade
Obligations to provide information
Commercial sellers are required to comprehensively inform potential buyers about the condition of the used goods. This includes, among other things, information about any defects, age, and intensity of use. In distance selling, additional information requirements apply pursuant to § 312d BGB and Art. 246 EGBGB.
Right of return and cancellation
For sales to consumers via distance selling (e.g., over the internet), the BGB grants a right of withdrawal according to §§ 355, 356. Exemptions exist for certain types of used goods, such as personalized or perishable items.
Warranty in the used goods trade
Statutory warranty rights
The seller of used goods is liable for material defects pursuant to § 437 BGB. Unlike new goods, however, the warranty period in the used goods trade can be shortened to one year from the handover of the item (§ 476 para. 2 BGB, new version since 2022).
Exclusion of warranty
In relation to consumers, a complete exclusion of warranty is not permitted. An exclusion is generally only possible for private sellers, provided there is no fraudulent intent or an assumption of guarantee. In commercial transactions between merchants, liability can, however, be largely excluded or limited.
Guarantees
Independent of statutory warranty regulations, voluntary guarantees can be provided, which constitute separate obligations alongside existing warranty rights.
Special VAT regulations
Differential taxation pursuant to § 25a UStG
Used goods dealers are often subject to differential taxation. This special rule under § 25a UStG applies when used movable items are purchased from non-entrepreneurs and then resold. VAT is then charged only on the difference between the purchase and sales price, not on the total sales price.
Standard taxation
If used goods are purchased from other entrepreneurs with VAT shown, standard taxation applies.
Trade and business licenses
Business registration
Trading in used goods constitutes a commercial activity and, according to § 14 GewO, requires registration with the competent trade office. Operating without registration is subject to a fine.
Specific trade law regulations
Further requirements apply to certain types of goods. For example, trading in used motor vehicles or precious metals often requires additional documentation or permits pursuant to §§ 34c, 34d GewO and the Money Laundering Act (GwG).
Data protection and documentation obligations
Identification and recording obligations
Within the framework of the Money Laundering Act (§§ 2 ff. GwG), used goods dealers may be required to identify and document the identity of their customers, especially for high-value items.
Data protection requirements
The collection, storage, and processing of personal data is subject to the requirements of the General Data Protection Regulation (GDPR). Dealers must implement appropriate data security measures and meet transparency obligations.
Environmental law aspects
Disposal and resource recovery
The trade in used electrical and electronic devices is subject to specific environmental regulations, in particular under the Electrical and Electronic Equipment Act (ElektroG). Dealers are obliged to take back old devices and ensure environmentally sound disposal.
Product Safety Act
Used products must meet the safety requirements of the Product Safety Act (ProdSG). This also applies to goods already in circulation, provided they are being reintroduced into the economic cycle.
Special laws and regulations in the used goods trade
Toys, medical devices, food
Trading in certain used goods such as toys, medical devices, or food is subject to special requirements from specific laws, which impose additional inspection, recording, or documentation obligations.
Criminal and regulatory risks
Trading in stolen or counterfeit used goods may result in criminal consequences (§ 259 StGB – handling stolen goods, § 267 StGB – forgery of documents). Commercial dealers are advised to carefully verify the origin of goods and report any suspicious circumstances to the authorities.
Conclusion
The used goods trade is a highly regulated area of commercial trade. Especially for consumer protection, fraud prevention, and ensuring legally compliant processes, a wide range of legal provisions must be observed. In addition to civil law aspects, tax, trade, environmental, and data protection regulations play a decisive role. Dealers are required to continuously observe the relevant provisions and to structure their business operations accordingly.
Frequently Asked Questions
### What are the warranty periods for the sale of used goods?
When selling used goods, the German Civil Code (BGB) generally provides for a statutory warranty period of two years (§ 438 para. 1 no. 3 BGB). However, this period can be contractually shortened to at least one year for used items between business owners and consumers (§ 476 para. 2 BGB). This must, however, be expressly agreed in the purchase contract. On the other hand, if the buyer is also a business owner, the warranty can even be completely excluded, provided there is no fraudulent intent by the seller or it is a guarantee that has been expressly granted. A general exclusion of warranty in consumer transactions is not permitted; only a reduction to one year is allowed. In addition to this reduction: For defects that already existed at the time of handover, the seller is liable, unless the buyer was aware of the defect at the time of contract or was grossly negligent in not being aware of it.
### How must the condition of used goods be described?
In the used goods trade, the seller is obliged to provide a truthful and complete description of the item and any defects. According to § 434 BGB, a “defect” in an item of sale is defined primarily by whether the agreed condition is present. For example, if it is stated at the time of contract that the item is “used but fully functional,” the item must not have any significant functional defects. All known defects, signs of use, or missing accessories must be explicitly listed. Omissions or concealment of known defects are legally considered material defects and can lead to rescission, reduction, or claims for damages by the buyer. The standard is the mutual understanding of the condition of the item at the time of purchase.
### Is there a right of withdrawal when purchasing used goods?
The right of withdrawal is not dependent on the product status as “used” or “new” but on whether a distance contract exists (§§ 312g, 355 BGB). If used goods are sold by a business to a consumer outside business premises or via distance selling (e.g., online shop, telephone), the buyer has a statutory right of withdrawal of 14 days. This can be triggered and, if necessary, extended by corresponding information from the seller if such information is lacking. Private sellers are generally not required to grant a right of withdrawal unless they are acting in a business capacity.
### What information obligations exist when selling used goods?
In commercial sales of used goods, sellers are subject to special information obligations, as regulated in particular by §§ 312d, 312i, and 312j BGB. These include the clear indication of the condition of the goods (e.g., used, refurbished), stating all known defects, information about liability and warranty periods, and information about the right of withdrawal including a model withdrawal form. Additionally, providers are obliged to clearly state the identity and contact details of the business, the total price including any additional costs, the payment and delivery conditions, and any existing guarantees. Breach of these obligations can result in warnings and claims for damages.
### What legal peculiarities apply to sales between private individuals?
If used goods are sold from one private individual to another, the statutory warranty rights according to § 444 BGB can generally be completely excluded, provided there is no fraudulent intent and no characteristics are expressly guaranteed. In this case, the seller is not liable for material defects that arise after the contract has been concluded. It is advisable to include a clear statement in the purchase contract such as “sold as seen under exclusion of any warranty.” Excluded from this are defects that were fraudulently concealed. A right of withdrawal is not granted in these cases unless the seller acts as an entrepreneur contrary to their statements.
### Are there special regulations for trading in electronic used goods?
For electronic used goods, the provisions of the Electrical and Electronic Equipment Act (ElektroG) in particular apply. Dealers are generally required to take back old devices free of charge and/or to inform buyers about the option of return. In addition, safety requirements such as CE marking and compliance with product safety (ProdSG) must be observed. If equipment is offered as refurbished or renewed, all interventions and the exact condition must be documented in detail. Particular care must be taken with data carriers, especially regarding data protection under the GDPR—preexisting data must be deleted. For electronic medical devices, additional strict regulations and approval obligations apply.
