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Non-Conformity in Dutch Contract Law

Non-Conformity in Dutch Contract Law

In the event of non-conformity in Dutch contract law under a purchase agreement, the buyer is entitled to several rights under Dutch law. These include claiming proper performance, repair, damages or dissolution of the Dutch purchase agreement. Additionally, the buyer may bring a claim based on error. The seller is obliged to deliver an item that meets the properties agreed upon under the purchase agreement. If the item is defective and prevents its normal use, this constitutes a non-conformity, unless the buyer should have discovered the defect when entering into the purchase.

The buyer cannot invoke non-conformity if they were aware, or could reasonably have been aware, of the non-conformity at the time of concluding the contract. In the case of consignment purchases or the sale of goods en route, the buyer is obliged to take delivery of the goods. However, under Dutch contract law, in the event of non-conformity, the buyer may pursue remedies such as claiming replacement goods or rescinding the contract. Consumer buyers are entitled to specific rights under Dutch law, including the right to rescind in the event of non-conformity, unless it is minor, and the right to a price reduction in proportion to the non-conformity.

Key Takeaways

  • Burden of proof lies on the buyer to provide sufficient evidence of non-conformity, except in consumer sales where the burden shifts to the seller.
  • Buyers can demand delivery, request repair or replacement, terminate the contract, and seek damages as legal remedies.
  • Sellers are financially accountable for rectifying non-conformity, including repair and replacement costs without additional fees to the buyer.
  • Timely resolution is crucial, as repair attempts can be pursued limitless times, and contract termination is a viable option in severe cases.
  • Buyers have the option to terminate the contract and seek a refund if non-conformity persists, reversing the transaction.

What are the time limits for claiming a lack of conformity in a sales contract under Dutch law?

The time limits for invoking non-conformity in a sales contract vary depending on the context and applicable law. In international sales contracts under the CISG, the claim for delivery of replacement goods must be brought within a reasonable time after notification of non-conformity.

Suppose the buyer first demands repair or the seller offers to repair the goods. In that case, the claim for delivery of replacement goods may still be brought after it is established that performance through repair is no longer possible or cannot be demanded from the buyer or seller. In consumer sales within the EU, the limitation period of a claim based on non-conformity may not expire within two years after delivery of the goods.

By Dutch law, consumer purchases are subject to 30 days following delivery within which the consumer may rescind the purchase. Following this period, the seller must attempt to repair or replace the goods before invoking other remedies such as price reduction or rescission and refund. In the sale of a home, non-conformity that is discovered within six months of delivery is presumed to have existed at the time of delivery. In the event that a claim is made on grounds of non-conformity, the seller may be able to escape liability if the non-conformity was known or could reasonably have been known to the buyer at the time of concluding the contract. However, this is unlikely to occur in a consumer sale. The buyer may reasonably expect the good to possess the properties required for its normal use.

What are the implications of the duty to complain in case of non-conformity?

The duty to complain in case of non-conformity requires a buyer to inform the seller within a reasonable time after discovering the non-conformity. This period commences as soon as the buyer has discovered or should reasonably have discovered the non-conformity, which implies a duty to investigate. The duty to complain is linked to an expiry period, meaning that if a complaint is not made in time, the buyer loses their rights to invoke non-conformity.

In some cases, such as when the seller’s duty of disclosure is breached or a warranty is provided, the buyer’s obligation to investigate may be limited. The complaint period can be set by contract and the buyer bears the obligation and burden of proof of non-conformity. In the context of consumer purchases, a complaint made within two months of discovery is considered to be made in a timely manner. A timely complaint initiates a limitation period for all legal claims involving non-conformity.

Burden of Proof in Non-Conformity

What’s the burden of proof in non-conformity cases under Dutch contract law? In general, it’s your responsibility as the claimant to provide sufficient evidence demonstrating that the product fails to meet the agreed-upon terms. This requires presenting clear and compelling evidence to establish the existence of non-conformity.

However, there’s a significant exception to this rule in consumer sales. According to Article 7:18a(2) BW, the burden of proof shifts to the seller, who must show that any defect occurred after delivery. This reversed burden can have a notable impact on the legal implications of non-conformity cases, ensuring that consumers have greater protection.

It is important to understand the evidence requirements and legal implications of the burden of proof in non-conformity cases.

Seek legal advice if you’re unsure about how to handle the burden of proof effectively. This will help you navigate such disputes and assert your consumer rights under Dutch contract law.

Remedies Available for Buyers

Under Dutch contract law, if goods don’t conform to the agreed-upon terms, buyers have various remedies available to address these issues. When a buyer identifies a non-conformity, it’s important to take prompt action to make sure they can seek appropriate resolution.

The following remedies are available to buyers:

  1. Demand Delivery of Missing Items: Buyers can request the seller to deliver the absent items to fulfill the contract obligations.
  2. Repair or Replacement: Buyers have the option to ask the seller to repair or replace the goods that don’t meet the contractual standards.
  3. Contract Termination: In severe cases, buyers can choose to terminate the contract if non-conformity is significant or irreparable.
  4. Compensation: Buyers may seek financial compensation for the damages incurred due to the non-conformity.

Seeking legal advice and employing effective negotiation strategies can greatly enhance a buyer’s chances of achieving their desired outcomes. It’s advisable to consult with legal professionals to draft clear and impactful communication to address non-conformity with sellers and achieve the best possible resolution.

Costs and Compensation Structure

When addressing non-conformity under Dutch contract law, sellers are held financially accountable for the costs of rectifying the issue to make sure that buyers aren’t further burdened.

In terms of cost allocation, you as a buyer are protected from incurring additional charges for the repair or replacement of a non-conforming product. The seller liability guarantees that any necessary costs associated with the defect are solely their responsibility. This means that sellers can’t pass on the expenses for delivering, repairing, or replacing the item to you, the buyer. As a result, the seller must bear these costs fully.

It is important to note that sellers may request compensation for the period of use before the repair or replacement.

Additionally, they might expect a usage fee for used products. These details are essential in understanding how costs are allocated and compensated in cases of non-conformity.

Timely Resolution and Repair

During the resolution process, timely action is needed to rectify the non-conformity and prevent further buyer inconvenience. Under Dutch contract law, prompt resolution is important for upholding buyer rights and securing a satisfactory outcome.

Here are the key aspects to keep in mind for timely resolution and repair:

  1. No Limitation on Repair Attempts: Sellers have multiple opportunities to rectify non-conformities, although typically two attempts are made.
  2. Other Solutions: If the non-conformity persists after two repair attempts, buyers can pursue other solutions.
  3. Involvement of Third Parties: If the seller fails to address the non-conformity within a reasonable timeframe, buyers may contemplate third-party repair.
  4. Time-Critical Resolution: Sellers must act promptly to rectify non-conformities to avoid undue inconvenience to buyers.

A swift and effective resolution of non-conformities is vital in Dutch contract law. By following these guidelines, buyers can make sure that non-conformities are addressed efficiently and that fair remedies are available if needed.

Contract Termination and Refund

If the non-conformity persists despite timely repair attempts, you can consider terminating the contract and seeking a refund, a legal remedy available to buyers under Dutch contract law. This option is particularly valuable when the non-conformity is significant and the seller fails to correct the issue. In such cases, contract termination allows you to exit the agreement and obtain a refund, effectively reversing the transaction.

Contractual RightsRefund Entitlement
Right to TerminatePurchase Price Refund
Non-ConformityFull or Partial Refund
Failure of Timely RepairCompensation for Damages
Ensuing Financial LossRemedy Against Seller

Frequently Asked Questions

What Is the Statute of Limitations for Non-Conformity Claims in the Netherlands?

Under Dutch contract law, the statute of limitations for non-conformity claims is usually two years. This means that if you, as a buyer, fail to report defects within this timeframe, your claim will expire.

It’s important for you to notify the seller promptly to safeguard your rights remain valid. Seeking legal assistance can help you navigate these limitations and understand the legal implications on consumer rights.

Can Non-Conformity Be Due to an Act of God Under Dutch Contract Law?

Under Dutch contract law, force majeure is greater than ‘acts of God’ and refers to unforeseen events beyond your control, such as government restrictions. If these circumstances prevent you from performing your contractual duties, you might be relieved from liability.

However, the burden of proof lies with you, and careful analysis of contractual terms and legal remedies is essential.

What if the Non-Conformity Is Discovered After the Warranty Period?

If you discover non-conformity after the warranty period, the burden of proof shifts to you to demonstrate that the defect existed at delivery.

Post-warranty claims require thorough documentation and evidence to establish the defect’s presence during the warranty period.

You may face challenges proving non-conformity, as the seller’s liability decreases after the warranty period expires.

Expert reports and assessments may be essential in establishing non-conformity in complex cases, but legal recourse may involve negotiation, mediation, or legal action if necessary.

Are Digital Goods Also Covered Under Non-Conformity Laws in the Netherlands?

As a seller, you must be aware that digital products are indeed covered under non-conformity laws in the Netherlands. This means you’re liable for ensuring that digital products (such as e-books, games, or streaming services) meet the agreed-upon specifications and meet consumer rights expectations.

If the product doesn’t conform, consumers have the right to remedies like repair, replacement, or contract termination, regardless of whether the non-conformity is detected during or after the warranty period.

Can a Court Force a Seller to Rectify the Non-Conformity Under Dutch Law?

Yes, under Dutch contract law, a court can compel a seller to rectify non-conformity.

If you’re faced with a non-conforming purchase, legal enforcement measures can be taken against the seller.

The court can mandate the seller to rectify the issue through repairs, replacements, or other corrective actions.

This guarantees the seller fulfills their responsibilities to comply with contractual obligations and uphold consumer rights.


Burden of Proof in Non-Conformity:

  1. Consumer Purchases: In consumer purchases, the burden of proof reverses, assuming the delivered product was non-conformant at the time of purchase if defects are discovered within 6 months.
  2. Non-consumer Purchases: For purchases between companies, the buyer must prove the product was non-conformant at delivery.

Remedies Available for Buyers:

  1. Notice of Default: Buyer must send a written notice of default to the seller, specifying the defects and the expected compliance period.
  2. Liability for Defects: Buyers can claim damages or compensation if the seller fails to rectify the defects.

Costs and Compensation Structure:

  1. Reasonable Costs: Buyers can recover reasonable costs related to addressing non-conformity, such as legal fees and administrative expenses.
  2. Compensatory Damages: Buyers are entitled to damages to compensate for the loss suffered due to non-conformity.

Timely Resolution and Repair:

  1. Compliance Period: Buyers must provide a reasonable compliance period for the seller to rectify the defects.
  2. Long-term Defects: Defects that arise within a short period may imply non-conformity at delivery.

Contract Termination and Refund:

  1. Consumer Protection: If the seller fails to repair, buyers can claim a complimentary refund and the seller’s responsibilities may include all costs associated with the return.
  2. Remedies Pending: The matter can be taken to court if no resolution is reached, potentially leading to contract termination and other legal consequences.

In conclusion, under Dutch contract law, buyers are protected in cases of non-conformity, with specific procedures for informing sellers, recovering costs, and seeking compensation.

Dutch law firm for contract law

For any legal inquiries or support in the Netherlands about non-conformity in Dutch contract law, please feel free to contact our adept team at MAAK Advocaten. Committed to excellence, our Dutch lawyers provide superior legal services tailored to your distinct needs. You can reach our law firm in the Netherlands through our website, by email, or phone.

Our approachable and skilled staff at MAAK Attorneys will be delighted to assist you, arranging a meeting with one of our specialized attorneys in the Netherlands. Whether you need a Dutch litigation attorney or a Dutch contract lawyer in Amsterdam, we are eager to guide you through the legal intricacies and secure the most favorable results for your situation.

Contact details

Remko Roosjen | attorney-at-law (‘advocaat’)
+31 (0)20 – 210 31 38

The information on this legal blog serves purely for educational purposes and should not be taken as specific legal guidance. While we endeavor to maintain accurate and current information, we do not assert its absolute completeness or relevance to your particular situation. For advice tailored to your legal concerns, we urge you to engage with a licensed attorney. Please note that the blog’s content may change without notice, and we are not liable for any inaccuracies or missing information.

Remko Roosjen

Remko Roosjen

Remko Roosjen is a Dutch contract attorney in the Netherlands and creates close working relationships with clients, providing pragmatic solutions across on all legal matters in the Netherlands. Remko is a partner of our commercial law firm in Amsterdam, the Netherlands. His specialist areas include Dutch contract law, including Dutch commercial contracting and legal disputes, including civil litigation, arbitration and mediation. Remko is a sharp, creative Dutch attorney with extensive cross-border experience representing both foreign plaintiffs and defendants. Visit Remko's profile via the website or via his LinkedIn Profile.