Non-conformity Article

What is Non-Conformity?
In practice, it often happens: you buy a product and within a few weeks it already shows defects. There may then be non-conformity here. Of course, several factors must be considered. Take, for example, the purchase of a car, which quickly shows defects. Here you look at the year of construction of the car, what the mileage is, but most importantly, what could you expect from the car at the time of purchase.

Non-conformity according to the law
Article 7:17 of the Dutch Civil Code shows that a delivered item must comply with the agreement. As a buyer, you can expect that the item has the properties that are necessary for normal use. As a buyer, you can also expect that the item is suitable for special use, if this has been agreed upon at the conclusion of the purchase agreement. Here, attention is also paid to the nature of the item and the statements that the seller has made about the item. If it turns out that the product you have purchased does not have the properties that you should have expected, there may be non-conformity.

Time of non-conformity
In order for there to be non-conformity, the product must not comply with the agreement at the time of delivery. However, you do not have to be familiar with this at that time. If the product shows defects within 6 months, it is assumed that the product was already non-compliant during the purchase. However, this only applies to a consumer purchase (the sale of a company to a consumer). As a buyer, you do not have to prove that the defects were already there during your purchase. When selling products between two companies, the burden of proof reverses. As a buyer, you must be able to prove that at the time of delivery the product was already non-compliant. This can be done, for example, by an expert report. Again, a consumer does not have to prove this according to the law.

Duty to complain
If you later want to claim something from the seller of the defective product, you must of course first disclose the defect to him. You do this initially by complaining. You send your complaint in writing in a notice of default to the seller by registered mail. This written registered practice is not a requirement according to the law, but it is advisable to prevent problems regarding, among other things, the burden of proof. This complaint must be made known to the seller within a reasonable time.  In general, 2 months is considered timely. However, this period may be longer in exceptional situations. As a buyer, you must therefore dossier a complaint within 2 months after you discovered or could have discovered the defect. If you do not do this in time, you lose the right to invoke non-conformity. You will then no longer be in a position to claim anything from the seller.

What can you claim?
If there is non-conformity and you have complied with the obligation to complain, you can claim the following:

• delivery of what is missing;
• repair of the delivered goods; replacement of the delivered goods;
• dissolution; or
• This claim must be dossiered within 2 years after sending the notice of default. If this is not done in time, the claim will become time-barred.

What can we do for you?
Are you in a situation where you think you have bought a non-compliant product? Then you can contact us without obligation. We can, among other things, find out for you whether there is actually non-conformity, draw up a legal letter and ensure that you get what you are entitled to. A letter from a lawyer or lawyer is always taken more seriously by a seller than a letter from a consumer. In addition, we are of course familiar with all correct legal substantive argumentation.

If you have purchased a product that you think is non-compliant, please call or email us:
040-8444523 or info@agajuristen.nl

Author
Maryleny Zonneveld (Jurist AGA Lawyers)Written on: February 4, 2021

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