MKL
Hello Mirko,
I’ve just had a look at your page for selling second-hand equipment and I’m wondering whether you’ve properly researched the matter. There is no statutory warranty obligation in Germany. The seller’s liability is limited to providing an accurate description and ensuring the goods are free from defects (unless explicitly stated otherwise) at the time of handover. In this regard, the seller must prove within the first 6 months that the goods were in perfect condition at the time of handover; after that, the burden of proof lies with the customer.
You can pass on the return postage costs to the buyer for goods valued at up to 40 euros. You can reduce the warranty period to 1 year. However, you must specify both of these in the terms and conditions. Seek proper legal advice and you’ll see that it’s not as dramatic as it seems.
The same applies to electrical safety regulations: you simply need to remove the power cable and clearly state this as a defect. For instance, old dryers without cables are currently being sold time and again with the ceramic ‘cold appliance’ plug, which is now banned for new goods. Incidentally, the general rule also applies to private sales: items that pose a health hazard can result in liability.
In any case, I can’t believe that, as a resourceful businessman, you can’t think of anything better than scrapping the second-hand goods and laying off staff.
Best regards,
Michael
MirkoBoeddecker
Hi Michael,
Thanks for the tips. I know exactly what you mean. With a few little tricks, you can get round the pitfalls.
But: what customer is going to buy an enlarger from a specialist retailer, plus VAT and staff costs, when the retailer has to explicitly sell it as ‘non-functional’ and with the plug cut off??
I’d rather go to eBay and buy a working original version from a private seller.
It’s hard enough for specialist retailers, with their wage costs and rent, to compete at all against the perfectly organised private-to-private sales via software platforms. But when your own government then stabs you in the back like this, handing all rights over to an American software platform that pays tax in Ireland on behalf of its European subsidiary, whilst showering its own retailers with impossible requirements. What else is there to do but cease trading?
Since March 2004, I have had to guarantee that every device complies with all ten thousand VDE regulations in their latest version. If it does not, I am liable with my entire personal assets. We mainly sold Meoptas from the 1960s and 1970s for 5–50 euros. Profit margin: 5–15 euros per device.
The decision wasn’t a one-off. We simply had to give up – the potential for frustration was just too great. Up against the German federal government, with eBay leading the charge against the German retail sector, little FOTOIMPEX simply couldn’t compete.
MKL
Hi Mirko,
I do understand the decision itself, but I found the formulation a bit harsh.
As a user, I’m well aware that eBay is really shaking up the second-hand market. Still, I can imagine that quite a few newcomers would rather buy from a retailer they trust. By the way, one trick on eBay is selling on consignment and the associated exclusion of warranty. You can effectively exclude your personal liability by setting up a limited company.
I just think it’s a shame when people give up simply because our armchair politicians in Berlin implement EU directives in such a mindless way. To be honest, I’ve been waiting a long time for a law that ratifies the liability of politicians with their personal assets for economic damage. Unfortunately, that will probably remain a pipe dream.
Best regards
Michael
Niall
Is that Ireland you're talking about in your post, Mirko? I'm from Ireland, but I don't know
what you're on about!
Niall
Gast
Niall,
American software companies run their European operations from Ireland because they benefit from favourable tax treatment there.
I’m talking about eBay destroying our second-hand market section at FOTOIMPEX (you’ve experienced this too) and the German politicians on top of that passing laws which put eBay in a privileged market position by forcing dealers to provide guarantees on second-hand equipment, cover all shipping costs, be liable with all their capital for electrical hazards caused 10 years after purchase by an 80-year-old enlarger, and all sorts of other fancy stuff.
So they are actively destroying their own dealer base in favour of a company that pays taxes in Ireland.
That is what I meant.
Mirko
Gast
Michael,
Unfortunately, the GmbH option won’t work either, because even a €25,000 liability limit is too high. With an average profit of €5 after handling costs, we’d have to sell 5,000 Opemusse just to earn the first risk-free euro (which is a slight exaggeration, as the risk of damage isn’t exactly 100%). That level of turnover isn’t going to happen in the next 100 years.
Somehow, it actually works as it should. The effort required to circumvent the regulations is so great that the profitability of the second-hand trade falls by the wayside.
They make laws like that precisely so that they work. If it were that easy to get round them, the law would be amended. These laws were initiated by the lobbyists of the big retailers. They wanted to gain a competitive advantage over small second-hand buyers and sellers in order to push their new appliances onto the market (household appliances). The eBay thing just happened to come along at the wrong time, and nobody cares about small niche markets like ours anyway. We’re simply being sacrificed in favour of Otto, Obi and the like.
That is precisely the aim of these so-called ‘consumer protection laws’: to secure competitive advantages for big business against the flexible masses of small traders. I’m sure there’s a hefty kickback going under the table to the local branch or the national executive committee for that.
As for the formulation: yes, it’s harsh – but we’re really angry too :) It was fun tinkering with those old things, polishing them up and putting them in the window. They looked good too. But when all you hear day in, day out is: “Nah, I’d rather buy on eBay, it’s cheaper there” and then you’re also risking life and limb as soon as something has a plug in it... nah, forget it.
Cheers,
Mirko
MirkoBoeddecker
By the way, we still sell accessories without plugs.
So if you’ve bought an incomplete Opemus on eBay, we’re here to help, of course!
Mirko
MKL
Niall,
before you get the wrong impression, let me clarify.
I think Mirko is upset with the unprofitable second-hand goods market @ FOTOIMPEX for two reasons:
eBay has established itself as THE platform for second-hand goods and has the widest customer base and largest selection, because it can be used by any individual or company and operates worldwide.
The German government has ratified a legislative proposal from the EU to protect consumers from being misled when buying second-hand goods. Before this law came into force, you could end up paying for a car that had been in a serious accident – damage that was invisible after repairs but later revealed a bent chassis. Previously, you could not claim a refund or force the seller to repair it. The new law stipulates that a company selling second-hand goods must now describe the item accurately and ensure it is free from defects, unless otherwise stated. If the item had a defect or was faulty at the time of purchase, the dealer can be held liable for a period of two years (within their own terms and conditions, they may reduce this to one year); during the first six months, the dealer must prove the item’s faultless condition, whilst after six months the onus shifts to the customer. For private sales, liability can be excluded entirely; otherwise, the two-year period and all the above provisions apply even to sales between private individuals. This is not an EU law, but is incorporated into the German Civil Code (BGB), Germany’s basic law.
eBay is no exception to this! The eBay platform cannot override national laws! eBay is not equivalent to an auction with an auctioneer, which would be excluded from this law.
The other problem for Mirko is that some of the old enlargers and other electronic equipment do not comply with current safety regulations, and he is afraid of being held liable for injuries. Well, he should be, and this applies to all sales of goods. Companies are no exception to this. Even if I sell it privately, I can be held liable if someone gets hurt.
The third situation concerns the so-called ‘Fernabsatzgesetz’ (Distance Selling Act), which was enacted to prevent fraud and abuse against businesses online. Every commercial seller must offer a full money-back guarantee for a period of two weeks on anonymous sales made via the internet, telephone and fax to private customers only. This does not apply to B2B transactions.
A good example of how eBay cannot circumvent national law is the restriction on listing all items purchased from a German eBay member. I can look this up for any US eBay member, because privacy protection in the US is so lax and German law does not permit this.
I think we have to respect Mirko’s decision to stop trading in second-hand goods, yet I could not let the reasons given go uncommented.
Michael
MKL
Hi Mirko,
I understand your frustration and respect your decision – I’m sure it’s the right one for you.
Your reasoning, however, sounds a bit like “everyone’s against me”.
No hard feelings!
Michael
Gast
I think here in Ireland we have to provide a guarantee of at least
six months on second-hand goods, and yes, their description must be accurate and any faults must be disclosed to the customer!!
This applies to all businesses!
I think the reason foreign businesses set up here is because they
pay a more favourable tax rate than they would in other countries!!
The tax rate here is 21%, compared to 16% in Germany, for instance!
That’s why it might be better for me to buy in Germany!
So, yes, there are laws on second-hand goods!!!
Niall
MirkoBoeddecker
Niall,
What Michael describes does not reflect my view on this topic and, in particular, is not what I criticise about the law.
What he says is fine. Everyone should return items that don’t match the description or are otherwise rubbish.
Also, I don’t think it’s a problem that many companies are based in Ireland because of the lower tax rate there.
I just don’t like it when one person gets all the benefits and someone else has to foot the bill.
But I’m too tired now to write this.
I’ll let you know tomorrow.
Mirko
Gast
Fair enough, Mirko!! By the way, did you get my email?
Niall
