According to the CJEU’s advocate-general, a garage owner who sells a car to a consumer in name and on behalf of a non-professional seller is liable for lack of conformity if he gave the impression of being the seller.
A dispute arose between a consumer and a garage owner regarding the sale of a second-hand car that broke down a few months after the sale. The garage owner repaired the car and invoiced it to the consumer. The latter refused to pay the invoice based on the legal guarantee regarding the sale of consumer goods.
According to this legal guarantee, a professional seller is liable to the consumer for any lack of conformity existing at the time the consumer goods were delivered. In the event of lack of conformity, the consumer shall be entitled to have the goods brought into conformity free of charge by repair or replacement, or to have an appropriate reduction made in the price or the sales contract rescinded. These rights are limited in time (for new and for second-hand consumers goods it is limited to 2 years and 1 year respectively as from the time of delivery).
However, in the case at hand the garage owner was not the owner of the car. He was merely acting in name and on behalf of the actual owner (who was a non-professional). The prejudicial question thus arose whether a professional intermediary who acts in name and on behalf of a non-professional seller is liable to the consumer for any lack of conformity.
According to the opinion of the CJEU’s advocate-general (of 7 April 2016, C-149/15) the professional intermediary can indeed be held liable in the event he gives the impression of being the actual seller when he presents himself to the consumer.
It obviously remains to be seen whether the CJEU will concur with this opinion. In the given circumstances, however, a professional intermediary will be well advised to inform (preferably in writing) the consumer of the identity of the seller and the fact that he is a non-professional prior to the conclusion of the sale. With this the risk of such liability can be avoided.