You bought a used car and it broke down: who to claim against

The case, in five lines

What is brought

Against a trader: the lack of conformity action under the consolidated text of the General Law for the Protection of Consumers and Users (Articles 117 to 119 ter), which allows you to demand repair and, if that is impossible or fails, a price reduction or termination of the contract, plus damages. Against a private seller: the action for hidden defects (Articles 1484 to 1490 of the Civil Code), to undo the sale or reduce the price; and, if there was deceit or the car is useless, annulment for fraud or termination for breach.

Before which court

The sección civil of the Tribunal de Instancia (the civil section of the first-instance court). Against a trader, you may choose the court of your own domicile or that of the seller's domicile; against a private seller, that of the defendant's domicile. The juicio verbal (the shorter form of civil proceedings) applies up to 15,000 euros and the juicio ordinario (ordinary proceedings) above that. Before suing, the attempt at negotiation required by Article 5 of Organic Law 1/2025 must be evidenced.

Deadline

Against a trader: the fault must appear within the liability period (three years, or the one agreed for second hand goods, never less than one year from handover, Art. 120 of the consolidated consumer text), and the action is time barred five years after it appears (Art. 124 of that text). Against a private seller: six months from handover, a lapse period (caducidad) under Art. 1490 of the Civil Code, which a letter of complaint does not interrupt. If there was fraud, four years from completion of the contract to seek annulment (Art. 1301 of the Civil Code).

Who can bring it

The claim is brought by the buyer named in the contract or by whoever can show he bought and paid. It is brought against whoever really sold: if the dealer advertised, collected payment and delivered the car, the dealer is the seller even if the contract is signed by the previous registered owner. If the car was financed at the dealership itself with a linked credit agreement, the claim may also reach the finance company.

Financial risk

If the claim is dismissed, you will normally pay the other side's costs, as well as your own expert. Against a private seller, letting the six months pass makes the hidden defects action unviable and leaves only routes that require proving deceit or that the car is entirely useless. When deciding costs, the court weighs who cooperated in the attempt at agreement and who refused without reason.

Who sold you the car decides the whole case

There are two regimes and they do not mix. If the car was sold to you by a dealership, a used car trader or any business that sells vehicles, and you bought it for private use, you are protected by the statutory conformity guarantee in the consolidated text of the General Law for the Protection of Consumers and Users, which its Article 114 applies to the sale of goods, except second hand goods bought at an administrative auction. If another private individual sold it to you, that law does not apply and all that remains is the Civil Code's warranty against hidden defects. The difference is not a matter of nuance: against a trader, the fault is presumed to date from delivery and you have years to claim; against a private seller, the burden of proof is yours and the deadline is six months.

That is why the firm's first question is not what has broken, but who really sold the car. It is common for a used car dealer not to register the car in its own name and for the contract you are asked to sign to appear signed by the previous registered owner, as if it were a sale between private individuals. The court does not stop at the paperwork: it looks at who published the advert, who showed you the car, which account the transfer went to, who handed you the keys and who offered you the warranty. If all of that points to the business, the business is the seller and answers as a trader, under all the consumer rules.

The same test works in reverse. Someone who advertises several cars a year as a private individual, keeps them in his name for a few weeks and sells them with photos taken in the same yard is acting as a trader, even if he does not say so. And if it was you who bought the vehicle for your business, you are not a consumer: even if the seller is a dealership, your claim follows the Civil Code rules, with their six months. The Court of Justice of the European Union requires the judge to check on his own initiative whether the buyer was acting as a consumer, so it pays to prove it from the claim onwards rather than leave it to interpretation.

Against a trader, a fault in the first year is presumed to date from delivery

Article 117 of the consolidated text makes the trader answer for any lack of conformity existing at the time of delivery, and allows the consumer, by a simple declaration, to demand that it be remedied, a reduction in price or termination of the contract, as well as compensation for loss and damage where appropriate. Article 120 sets the window within which the fault has to appear: three years from delivery, although for second hand goods the parties may agree a shorter period, which may never be less than one year. If your contract does not clearly contain that agreement, there is no reduction to rely on and the general period applies.

The rule that decides most of these cases is Article 121: unless proven otherwise, a lack of conformity appearing within two years of delivery is presumed to have existed when the car was handed over. For second hand goods that period may also be shortened by agreement, but never below the agreed liability period, that is, never below one year. A fault a month after the purchase falls squarely within it: it is not you who must show that the turbo was faulty, it is the dealer who must show that the car left in good order. The Court of Justice of the European Union has made clear that the consumer need only prove that the goods are failing and that the failure appeared within the period, without having to identify its technical cause.

The presumption gives way, the same article says, where it is incompatible with the nature of the goods or with the kind of lack of conformity. That is where the seller takes refuge with the wear and tear argument. The answer lies in what a buyer could reasonably expect from a car of that year, that mileage and that price, and in what the advert promised. A clutch worn out at 190,000 kilometres may be wear and tear; a turbo and four injectors failing five weeks after the car was sold as “serviced” are not, and a seller who claims otherwise has to prove it with something more than his word.

Repair comes first; handing the car back comes when repair fails

Article 118 gives the consumer the right to choose between repair and replacement, unless one of them is impossible or disproportionate. With a used car replacement is almost never possible, because there is no identical car with the same mileage and the same history, so the first step is repair. It must be free of charge, including transport, towing, labour and materials, carried out within a reasonable time of your reporting the fault, and without significant inconvenience to you. When you hand the car over, the seller must give you a receipt with the date and the fault, and another when returning it repaired, under Article 123: always ask for it, because it is the proof of the second attempt.

Article 119 opens the door to a price reduction or termination of the contract in listed cases: where repair is impossible or disproportionate, where the seller does not repair or does not do so within a reasonable time, where the fault reappears after the attempted repair, where it is so serious as to justify immediate termination, or where the seller states, or it is clear from his conduct, that he will not repair it. Termination is exercised by an express declaration to the trader and is not available where the lack of conformity is minor, but the burden of proving that it is minor lies with the trader. The price reduction, for its part, is proportionate to the difference in value between the car you were given and the one you should have been given.

Two documents tend to derail this stage. The first is the commercial warranty from an insurer that many dealers include in the price, with its list of excluded parts and its caps per repair: it is additional and does not replace the statutory guarantee, so the insurer's refusal does not affect you as against the seller. The second is the “sold without warranty” or “the buyer knows the condition of the vehicle” clause. As against a consumer, a prior waiver of his rights is void, and Article 115 ter only releases the seller where he informed you specifically that a particular characteristic departed from the norm and you accepted that deviation expressly and separately. A generic sentence in the contract meets neither requirement.

Against a private seller, six months that wait for no one

If the seller was a private individual, Article 1484 of the Civil Code obliges him to answer for hidden defects that make the car unfit for its use or reduce that use so much that, had you known of them, you would not have bought it or would have paid less. He does not answer for defects that are obvious or in plain view, nor for hidden ones if the buyer was an expert who by reason of his trade should easily have spotted them, which is the argument raised against a buyer who is a mechanic. And here there is no presumption: it is you who must prove that the defect existed before the sale, was hidden and is serious enough.

Article 1485 makes the seller answer even if he was unaware of the defect, unless otherwise agreed and he genuinely was unaware. That is why the “sold as seen” clause protects the honest private seller and not the one who knew. Article 1486 lets you choose between withdrawing from the contract, returning the car and recovering the price and the expenses you paid, or reducing the price proportionately as assessed by experts; and if the seller knew of the defect and did not tell you, you are also compensated for your losses if you choose to undo the sale. If the sale is governed by Catalan civil law the scheme is different, because there the lack of conformity rules also reach sales between private individuals.

All of this must be exercised within the six months set by Article 1490, counted from handover of the car and not from when the fault appears. The Tribunal Supremo (the Spanish Supreme Court) treats that period as one of lapse (caducidad): it is not interrupted by a letter of complaint, the court applies it even if the seller does not raise it and, one day late, the action no longer exists. What does stop it is the formal request to negotiate under Article 7 of Organic Law 1/2025, which suspends the lapse period from the moment there is a record of the attempt to communicate it, provided it properly defines the subject matter. But the suspension is fragile: the clock starts again if within thirty calendar days there is neither a first meeting nor a written reply. With a purchase made five months ago, the claim is prepared at the same time as the negotiation.

If the six months have passed: deceit or a useless car

The lapse of the hidden defects action does not close every door. If the seller induced you to buy with insidious words or schemes, which is how Article 1269 defines fraud (dolo), the contract can be annulled where the deceit is serious, and Article 1301 gives four years from completion of the contract to seek annulment. The typical cases are a tampered odometer, a serious accident concealed, a failed roadworthiness inspection that goes unmentioned, or “perfect engine, never given any trouble” said by someone who had just been to the garage with that very fault. If without the deceit you would still have bought it, though for less money, the fraud is incidental and Article 1270 limits it to compensation for the loss.

The second way out is breach through delivery of something different. Where the defect makes the car radically useless for driving, so that the purpose of the contract is entirely frustrated, the Tribunal Supremo treats it not as a hidden defect but as a breach, with termination under Article 1124 and the five year period of Article 1964. The courts are demanding with this route for used cars: a fault that can be repaired for a reasonable fraction of the price is a defect, not a breach. It works when the engine is destroyed or the repair exceeds the value of the car, not as a remedy for any fault that turns up outside the deadline.

A tampered odometer deserves a line of its own because it changes the calculation against both kinds of seller. If a trader sold the car, false mileage is a lack of conformity with what the advert and the contract described, with five years' limitation from when it becomes apparent, provided it surfaces within the liability period of Article 120, as well as fraud. If a private individual sold it, it is the fraud route that avoids the six month lapse period. In both cases the evidence is the same: the vehicle report from the Dirección General de Tráfico (the national traffic authority) with the mileage recorded at each roadworthiness inspection, the service history in the manufacturer's network and, where needed, the expert reading of the mileage stored in the car's other control units. Where the tampering was deliberate, the facts may also amount to the criminal offence of fraud (estafa).

Before suing: negotiate, bring in the expert and do not touch the car

Article 5 of Organic Law 1/2025 requires in civil matters, as a condition of admissibility, prior recourse to an appropriate dispute resolution mechanism, with identity between what is negotiated and what is later claimed. It is satisfied, among other ways, by direct negotiation between the parties or between their lawyers. In this kind of case the requirement always applies, against the dealer and against the private seller alike, because it is not among the excluded matters; only prior interim measures and preliminary enquiries are spared. If the seller has adhered to consumer arbitration, that route is also open; if not, what remains is explained in the guide on the company that refuses consumer arbitration.

The expert evidence is what wins or loses the case, and it is built from day one. The firm works with a mechanical expert who examines the car before anyone dismantles it, and the seller is invited in writing to attend the dismantling with his own technician. The replaced parts are kept and photographed with the number plate and the odometer in view, and the garage's diagnosis with its fault codes and its date is preserved. The law wants the expert report filed with the claim; only where it is shown that it could not be obtained earlier may it be announced and filed later, and that exception is not granted to someone who simply did not hurry.

The costliest mistake is repairing it on your own. If you take the car to another garage, have it fixed and throw the parts away before offering it to the seller, you skip the order set by Articles 118 and 119, which give the seller the first chance to bring the car into conformity, and you hand him the argument that the fault could never be verified. It is different if the seller refuses or does not reply within a reasonable time: then repair at another garage, properly documented, is claimed as a loss. And if the car was financed at the dealership itself with a loan linked to the purchase, the claim also reaches the financing: Article 117 allows you to suspend payment of any part of the price still owed to the seller, and consumer credit law allows the lack of conformity to be raised against the lender when the seller does not resolve it.

How we run the case, step by step

1. 1

   Fixing the handover date and the real seller

   The advert, the contract, the invoice and the proof of payment are gathered. The handover date starts the six months against a private seller and the liability period against a trader, and the payments and the messages show whom to sue.

2. 2

   Diagnosis without dismantling, and the car off the road

   A written diagnosis is obtained, with date, mileage and fault codes, and the car stops being driven. Continuing to use it worsens the fault and gives the seller the misuse argument.

3. 3

   Formal demand to the seller

   Against a trader, a written declaration demanding free repair, placing the car at his disposal and asking for the handover receipt. Against a private seller, a formal request to negotiate with the subject matter defined, which suspends the lapse period from the recorded attempt to communicate it.

4. 4

   Joint expert inspection

   Our expert examines the car and the seller is invited to the dismantling. The report establishes the origin of the fault, that it is not normal wear, that it existed at handover, and what the repair costs or how much less the car is worth.

5. 5

   Closing the negotiation and choosing the remedy

   If the seller does not repair, repairs badly or does not answer, he is notified in writing of the price reduction or the termination. That notice and its reply document the attempt at agreement on the same subject matter that is later claimed.

6. 6

   Claim before the sección civil of the Tribunal de Instancia

   Termination with repayment of the price, or the reduction, is sought, plus damages, with the expert report attached. Against a private seller, the hidden defects action as the main claim and, where appropriate, annulment for fraud or termination for breach in the alternative.

The law that applies

• Art. 117 TRLGDCU. The trader answers to the consumer for any lack of conformity existing at the time of delivery. The consumer may, by a simple declaration, demand that it be remedied, a reduction in price or termination of the contract, and in addition compensation for loss and damage where appropriate. He may also suspend payment of any outstanding part of the price until the trader performs. BOE-A-2007-20555
• Art. 120 TRLGDCU. The trader answers for any lack of conformity existing at delivery that becomes apparent within three years of it. For second hand goods, trader and consumer may agree a shorter period, which may not be less than one year from delivery. BOE-A-2007-20555
• Art. 121 TRLGDCU. Unless proven otherwise, a lack of conformity appearing within two years of delivery is presumed to have existed when the goods were delivered, except where the presumption is incompatible with the nature of the goods or with the kind of lack of conformity. For second hand goods a shorter presumption period may be agreed, which will never be less than the agreed liability period. BOE-A-2007-20555
• Art. 124 TRLGDCU. The action to claim what is provided in the chapter governing the trader's liability and the consumer's rights for lack of conformity (bringing into conformity, price reduction or termination) is time barred five years after the lack of conformity becomes apparent. BOE-A-2007-20555
• Art. 1484 CC. The seller must answer for hidden defects that make the thing unfit for its intended use, or reduce that use so that the buyer would not have acquired it or would have paid a lower price. He does not answer for obvious defects or those in plain view, nor for hidden ones if the buyer is an expert who by trade or profession should easily have known of them. BOE-A-1889-4763
• Art. 1486 CC. The buyer may choose between withdrawing from the contract, with reimbursement of the expenses paid, or reducing the price proportionately as assessed by experts. If the seller knew of the hidden defects and did not disclose them, the buyer has the same choice and, if he opts for rescission, is also compensated for loss and damage. BOE-A-1889-4763
• Art. 1490 CC. The actions arising from the five preceding articles, among them withdrawal and price reduction under Article 1486, are extinguished six months after delivery of the thing sold. BOE-A-1889-4763
• Art. 5 LO 1/2025. It makes prior recourse to an appropriate dispute resolution mechanism a condition of admissibility in civil matters, with identity between the subject of the negotiation and that of the litigation. It is met by mediation, conciliation, the neutral opinion of an independent expert, a confidential binding offer or direct negotiation between the parties or between their lawyers. It is not required for enforcement claims, interim measures sought before the claim or preliminary enquiries. BOE-A-2025-76

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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