How to avoid minefield in second-hand car trading

  Xi yawei

  Recently, the Beijing Consumers Association conducted a survey on "the consumption problem of used cars" and found that many of them were suspected of concealing the real car condition or illegal operation. In fact, the chaos of second-hand car trading is not uncommon, which leads to many cases of transaction fraud flooding into the court. Then, what are the "minefields" in used car transactions, and how should consumers avoid them?

  Minefield 1

  It is difficult to identify the identity of the trading platform for car payment remittance to salesman account.

  Guo selected two used cars in official website, a second-hand car platform operated by a company. When he went to the store for consultation, Gao, a salesperson, was responsible for the reception. Guo expressed his willingness to buy through WeChat. Gao said that there was no need to sign a contract, and the car money could be transferred to the company through him, and he provided Guo with his own bank account. After that, Guo put the car money into Gao’s account. Soon, one of the cars was transferred to Guo’s name, but the other car was not delivered after repeated urging. Guo found that the car had been sold to others, so he appealed to the court to request the termination of the contract, refund the car purchase price and compensate. The company argues that it has not signed any sales contract with Guo, and there is no sales contract relationship between the two parties. Their identity is only an intermediary, not a vehicle seller. And although Gao is a salesperson, his responsibilities do not include concluding oral contracts and collecting payment.

  The judge dispelled doubts

  As a salesperson of the company, the vehicle information involved in the WeChat transaction with Guo came from the company’s second-hand car platform official website. Although the company claimed that the salesperson had no right to collect the payment, the court found that during Guo’s car purchase, Gao had transferred money to the company several times, with a huge amount, and Guo successfully purchased and transferred one of the cars by transferring money to Gao’s account. In these circumstances, it can be concluded that Gao has long-term behavior of collecting customers’ payment, which is a duty behavior. Therefore, Guo and the company have established a de facto sales contract relationship, and the company bears the seller’s responsibility, not the intermediary responsibility. Now that another car has been sold to others, the fundamental purpose of the contract cannot be realized. Guo has the right to terminate the sales contract involved and ask the company to refund the car money and compensate for the loss of capital occupation.

  Second-hand car trading platforms have dual identities, except for intermediaries, and sometimes they are sellers. Some second-hand car platforms sell second-hand cars themselves, but they deliberately evade their responsibilities in the car purchase agreement. When consumers have problems after buying vehicles through the platform and its staff, the platform refuses to pay compensation on the grounds that they are intermediaries rather than sellers. In the process of trading, what kind of responsibilities the platform undertakes mainly depends on the nature of the contractual relationship it forms with customers. If a sales contract relationship is established, it is the seller of the sales contract and bears the seller’s responsibility. It must deliver the used car that meets the contract to the buyer and handle the transfer according to the contract. If you are the intermediary of the sales contract, you will be responsible for the intermediary if you provide the opportunity to conclude the contract and match the buyers and sellers to reach a deal. Compared with the seller of the sales contract, it bears less contractual responsibility. However, in practice, there are cases where a written contract is not signed, and there is a dispute about whether the second-hand car trading platform is the seller. At this time, the court will comprehensively determine whether the second-hand car trading platform is the seller according to the evidence such as chat records, recorded materials, payment vouchers and witness testimony.

  Judge’s advice

  When buying a car, consumers should try to avoid making a private deal with individuals. They must not only sign a formal car purchase contract by verbal agreement, ensure that the transfer procedures are complete, determine the legal nature of the vehicle, and stipulate the rights and obligations of both parties through a written contract; It is necessary to carefully review the terms of the contract and keep the relevant documents of the transaction; If the rights protection is unsuccessful, you can sue the court for rights protection.

  Minefield 2

  Vehicle mileage data is falsified. Car operators return one and lose three.

  Qu bought a used car through an old motor vehicle brokerage company, and the mileage of the vehicle delivered in the contract was 139,000. After buying a car, Qu entrusted an appraisal company to appraise the vehicle, and concluded that the odometer of the vehicle was artificially changed, and the actual mileage should be above 220,000 at present. Qu filed a lawsuit with the court on the grounds of fraud, demanding that the old motor vehicle brokerage company cancel the contract, refund the car purchase price, make three times compensation and pay the appraisal fee.

  The judge dispelled doubts

  The mileage belongs to the important information in the process of second-hand car trading, which will directly affect consumers’ purchase choices and belong to the scope of the right to know.

  Although during the trial of the case, the used motor vehicle brokerage company believed that it had been tested by a third-party agency when it acquired the vehicles involved in the case, and the mileage shown in the test report was 132,600 kilometers, it was sold to Qu Mou according to the test data, and there was no intention of fraud. However, as a professional used car seller, the used motor vehicle brokerage company should carefully identify and truthfully inform consumers. Although the "apparent mileage" of the vehicle is stated in the test report, it has also been made clear that "odometer reading is not the basis for judging the actual mileage of the certified vehicle". The company did not show the test report to Qu in the transaction process, which made him lose the opportunity to choose according to the test report, which obviously had the intention of fraud.

  According to the provisions of Article 55 of the Law on the Protection of Consumer Rights and Interests, if an operator commits fraud in providing goods or services, it shall increase the compensation for the losses it has suffered according to the requirements of consumers, and the amount of compensation shall be three times the price of goods purchased by consumers or the cost of receiving services; If the amount of increased compensation is less than that of 500 yuan, it shall be 500 yuan. In the above case, the court finally decided to terminate the sales contract between the two parties, and the old motor vehicle brokerage company refunded Qu’s car purchase price and compensated him for three times the car purchase price.

  Judge’s advice

  When buying a second-hand car, consumers should not only choose the brand and color of the car, but also pay attention to whether the car has had an accident, maintenance records and other quality-related conditions, which is also the main difference between buying a second-hand car and a new car. Before buying a car, the seller should be required to provide the vehicle condition test report, accident records, maintenance records and other materials. When signing a sales contract, consumers should carefully read the terms of the contract and know the agreed contents. When encountering ambiguous terms and expressions, they should negotiate and amend them in time, and remember not to just listen to verbal promises. In addition, both parties shall clearly state in the contract the commitments made by the operators on the vehicle condition, such as non-accident vehicles, non-soaking vehicles, non-burning vehicles and non-stealing vehicles, the warranty period provided, the authenticity of vehicle mileage and other important contents, as well as the liability for breach of contract. And we should pay special attention to the format clauses that exempt the seller from the main obligations and exclude the main rights of consumers.

  Minefield 3

  During the warranty period, the vehicle spontaneous combustion shall be determined according to the actual situation.

  Wu Mou signed a transfer agreement with the second-hand car company, stipulating that "the company guarantees that the purchased vehicles are free from major accidents, soaking in water and fire, and the engine, gearbox and circuit board are guaranteed for two years". Subsequently, Wu Mou got the car after paying a loan of 220,000 yuan, but five months later, Wu Mou was driving home when the cockpit of the car caught fire. Afterwards, he entrusted an appraisal company to investigate the cause of the fire of the vehicle involved. The appraisal conclusion is that the possibility of fire caused by lightning strike, external fire source, artificial arson, vehicle accident collision and circuit failure can be ruled out, and the possibility of fire and spontaneous combustion caused by vehicle power system/fuel supply system failure cannot be ruled out. Wu Mou believed that the second-hand car company failed to deliver the vehicles meeting the quality standards as agreed in the contract, so he appealed to the court, demanding that the contract be terminated and all the car money be compensated. Second-hand car companies argue that Wu Mou bought the car with knowledge of the car condition and warranty commitment, and the damage to the car was caused by spontaneous combustion, so it should not be held responsible.

  The judge dispelled doubts

  According to Article 15 of the Measures for the Administration of Second-hand Car Circulation and Article 16 of the Specification for Second-hand Car Trading, second-hand car distribution enterprises must provide quality assurance and after-sales service commitments to buyers. According to the appraisal results in this case, the second-hand car company, as the seller, should guarantee the quality and performance of the delivered vehicles, and make corresponding warranty commitments, and should bear corresponding compensation responsibilities for the damage caused by the spontaneous combustion of vehicles. Wu Mou, the buyer, knew that it was a used car, but obviously its quality and performance could not be compared with that of a new car, so he still chose to buy it. At the same time, considering that he had used the car for five months from the time he picked it up to the time when the car spontaneously ignited, during which the battery was replaced and the vehicle involved was not properly maintained, Wu Mou himself should also bear the corresponding responsibility. Considering the contractual obligations of both parties, the use time of the vehicle and the principle of fairness, the court finally found that Wu Mou and the second-hand car company were each responsible for 50% of the damage to the vehicle.

  Judge’s advice

  When consumers buy used cars, they must check whether the vehicle procedures are complete. The seller shall provide complete formalities, including motor vehicle registration certificate, original invoice for car purchase, vehicle driving license, vehicle purchase tax payment certificate, purchase surcharge, vehicle insurance, road maintenance fee, vehicle and vessel use tax, etc., and the buyer shall check them one by one. In addition, consumers should also check whether the car engine number and frame number are consistent with the description on the relevant certificates such as the vehicle driving license. After the vehicle is overhauled, there should be relevant documents, warranty forms and vehicle safety technical inspection marks. The vehicle frame number (VIN code) and engine number in these documents must be the same as the vehicle. When necessary, you can ask to go to the motor vehicle registration management department with the seller to check whether there are rights defects such as mortgage and judicial seizure in the traded vehicles.

  Minefield 4

  Buying a car through "car bugs" leads to disputes. The identity of the seller must be comprehensively identified.

  Wei met Feng, a "car bug" in a second-hand car dealership. The two sides reached an agreement through WeChat, and Wei bought a second-hand BMW from Feng. After paying for the car, Wei found that the car had serious quality problems and could not be used normally. For the purpose of the contract, Feng could not be sued to the court, demanding to cancel the contract and return the car for a refund. Feng argued that he was neither the owner nor the seller, but a second-hand car agent. After receiving the agency fee, he transferred the remaining car money to the owner Liu, and provided the transfer record. He believed that Wei should claim rights from Liu. After the court added Liu as the third person in this case, Liu said that he did not know Wei, nor did he entrust Feng to sell the car, but only sold the car to Feng.

  The judge dispelled doubts

  Whether there is a sales contract relationship between Wei and Feng is the focus of controversy in this case. Although Feng said that he was only an intermediary, it was impossible to see from the WeChat chat records of both parties that he had clearly stated his intermediary status, and he could not submit the relevant evidence that the owner Liu entrusted him to sell the car. According to the principle of contract relativity, the court found that Wei and Feng had established a contract relationship for the sale of used cars, and the purpose of the contract could not be achieved. Wei had the right to request the termination of the contract, and Feng should return the car money to Wei, who would return the car to Feng.

  In cases involving "car bugs", because they have no formal qualifications and company supervision, the used cars sold are prone to ownership disputes or other major quality problems. When there is a dispute, "Car Bug" will call himself an intermediary, denying that it is the seller to evade the responsibility. If it can provide sufficient evidence to prove that it is an intermediary, it will not undertake the obligation of refund, otherwise it should be refunded.

  Judge’s advice

  When consumers buy used cars, they should choose regular operators and try not to trade through "car bugs". At the same time, both parties should sign a written contract to clarify the identity of the seller and pay attention to checking the ownership and condition of the vehicle. In addition, consumers should establish a sense of evidence, pay attention to retaining the evidence in the relevant transaction process and vehicle use, including invoices, contracts, electronic credentials, chat records, promotional materials, audio-visual materials, etc., so as to keep good evidence for future rights protection and safeguard their legitimate rights and interests.

  Standardized governance

  Work together to build a supervision system for used car trading

  Since 2018, cases related to used car transactions have shown a rapid growth trend. After investigation, consumers are faced with "three difficulties" in disputes over second-hand car transactions: First, second-hand car operators have various fraud methods, and it is difficult for consumers to protect their rights. Some operators lack integrity and cheat consumers by adjusting odometer data and concealing overhaul experience. Second, the information of used cars is opaque, which makes it difficult for consumers to inquire. At present, China has not established a national unified second-hand car trading information network system. When signing a contract, it is difficult for consumers to find all the information about the legality, maintenance, insurance and accidents of the vehicle on the platform. Third, the legal responsibility of used car operators is difficult to determine, and it is difficult for consumers to prove. Second-hand car operators and financial management are relatively chaotic. They often don’t sign written contracts, but only rely on salesmen to contact consumers. Salesmen collect consumers’ car purchases in their own names.

  Therefore, if consumers choose to buy used cars, they will inevitably take more risks while enjoying preferential prices. Be sure to keep your eyes open, stay calm, try to choose a formal trading market and network platform, and check the vehicle situation on the spot, sign a formal car purchase contract, ensure that the transfer procedures are complete, determine the legal nature of the vehicle, save the relevant documents of the transaction, and avoid the consumption trap to the greatest extent. At the same time, second-hand car operators should abide by the law, operate in good faith, standardize the transaction process, and actively fulfill their obligation to inform consumers. Relevant administrative departments and industry associations should focus on promoting the construction of official inquiry platform for second-hand car condition information, and further refine the quality identification standards related to second-hand cars to promote the standardized development of the second-hand car industry.

  (Author: Beijing No.1 Intermediate People’s Court)