Dutch Law on Consumer Sales
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European Guarantee Directive vs Dutch Law on Consumer Sales
The issue is whether the European Guarantee Directive will have consequences for the legislation in The Netherlands.
The answer is no.
Most relevant articles:
- A product that is bought by a consumer must live up to the specifications of the product as published by the manufacturer as well as to other product information given by either Importer or sales point (in advertisements and/or what is said by salesman), the price of the product, justified general and specific expectations about the specifications of that kind of products (see below), etc.
In other words, the buyer must get what he is entitled to expect from the product.
- When a product does not comply to these expectations (non-conformities):
in case of defect repair as far as this is reasonably possible.
other short comings (1) substition (unless shortcomings are insignificant) or
The seller may decide between (1) and (2), but must do so within a reasonable term.
If the seller waits to long, buyer may have the product repaired by a third party and claim costs with original seller.
· The seller is the retailer, not the importer. The seller may however claim his damages from manufacturer/importer
The EU Directive imposes minimum requirements. The Dutch LCS exceeds these minimum requirements and therefore it is not expected that on January 1, 2002 the legislation will be revised.
“Justified general and specific expectations from the buyer.”
This is possibly the most crucial issue in the Dutch LCS! I would like to explain this with the following example.
When buying a washing machine a consumer will expect even a low-end machine to function without problems during a period of 5 to 7 years. He might decide to buy a MIELE brand and he than will expect a longer lifetime, because MIELE has the image of being a very good product and boasts that there are no better products (“MIELE, No One Is Better”). The expected lifetime might, in the eyes of the consumer, double to 10 to 14 years.
After 5 years the cheap machine breaks down to no fault of the user: the retailer will have to pay part of the repair costs on the following ratio 2/7th of the repair costs (if the machine is agreed to have a lifetime of 7 years). In Miele’s case that would be 9/14.
This means that, irrespective of the manufacturers warrantee card, the retailer (and in it’s line, the manufacturer/importer) will have to give guarantee during the expected lifetime of the product. It is clear that most importers will be very generous if the machine breaks down in the second year: because of the desired brand image it will seldom invoice the consumer for the repair costs.
This means that during the first year there is a full guarantee based on the warrantee card and on the legislation.
In the following years of the justified lifetime, the retailer (+ man/imp) will have to share costs with the buyer (decreasing with the age of the product).
The only point where the Dutch LCS is less strict than the EUDir is were the EUDir has a mandatory reversal of proof during the first six months after the product is bought. This means that the buyer has to prove nothing during the first six months, while the retailer can at it’s best try to prove that the defect is caused by the buyer. In real life this will never be an issue: if a buyer claims guarantee during the first six months, the retailer(+manuf/imp) will not discuss his claim, due to desired brand image.
The EUDir allows Member States to limit the period to inform the retailer after finding a non-conformity on the side of the buyer to 2 months [see Art 5.2] , the Dutch LCS however does not limit this period. In this (also) the Dutch law is more strict.
The EUDir grants buyer two years of protection within which the seller is liable if there is a non-conformity. The Dutch LCS does not limit this period. The normal limitation period applies within which the buyer must take action to enforce his/her rights in relation to the non-conformity (ie. repair, replacement etc), subject to the option of Member States to require buyers to inform sellers of any non-conformity within 2 months of detection.
Note 2 and 3 combined conclude as follows: a non-conformity is found and according to the EUDir:
i) the non-conformity must occur within 2 years of the sale;
ii) subject to (iii) below, the buyer must enforce his/her rights in relation to the non-conformity – ie. repair, replacement etc – within the normal limitation period (under English law, this is 6 years);
iii) Member States may, if they choose, decide that consumers must notify the seller within 2 months of the non-conformity being detected;
iv) in the first 6 months it is presumed that the seller is liable for any non-conformity for any such non-conformity is presumed to be due to a defect in the product.
In Holland a buyer may report at any time he thinks appropriate and he can decide freely when he will actually claim correction of the non-conformity.
The Dutch law is therefore, also in this respect, more strict than the EUDir.
It is important to say that very few claims for guarantee, based on the Dutch LCS, are made! Maybe this is due to lack of understanding at the side of consumers, even though a lot of promotion was made by, amongst others, consumer organisations.