Last summer I bought a boat that was more than ten years old. The seller said that the boat had had an anti-osmosis treatment less than two years ago, so I did not have it inspected. Now that the boat is on the dock, it appears that the underwater hull does have osmosis and it is unlikely that this only occurred after my purchase. Can I still recover the damage from the seller?
Frits Hommersom: “Of course it is a great disappointment when it turns out that the boat you just bought has serious defects. Defects that were not known at the time the contract was concluded, at least not to you as the buyer. We are talking about so-called “hidden defects”. The law says that what you buy must comply with the agreement. The boat must have the qualities that you as buyer could expect on the basis of the agreement. The boat must therefore first of all have the properties that enable normal use. But unfortunately the law does not say exactly what you can and cannot expect. The law also does not say what the normal use is or what the characteristics are that you as a buyer do not need to doubt. However, the seller has a duty to provide information and the buyer has a duty to investigate.
In this context it is important to know that the extent of the buyer’s investigative obligation is defined by the information provided by the seller and on what accuracy the buyer may rely.
Furthermore, if the seller should have provided certain information, he cannot rely afterwards on the fact that the buyer did not investigate the matter sufficiently. Of course the more extensively you as a buyer interrogate the seller about the condition of the ship and the more extensively you inform him about what you expect from the ship, the harder it is for the seller to reproach you afterwards that you have done insufficient research. Especially if you have discussed all this with him in black and white. Think for example of e-mail traffic with your questions and his answers. The court will in such a case attach greater weight to the seller’s obligation to inform you adequately. The law also states that if the seller does not deliver what you might expect under the contract, there is a shortcoming on the part of the seller. The law also states that any shortcoming justifies dissolution of the contract. However, the next paragraph of this Article states that if the shortcoming is too minor, dissolution is not justified. It will therefore always have to be determined on the basis of the circumstances of the case whether the shortcoming is of such a magnitude that you can dissolve the contract completely.
Remedy In all this it is true that the purchaser can still claim adequate performance from the seller prior to dissolution if the shortcoming can still be remedied. This means that the buyer must give the seller the opportunity to repair the defect within a reasonable time. In the case of Mr. Dijkstra by means of an osmosis treatment. If the seller does not use this opportunity or the defect or shortcoming cannot be remedied, dissolution comes into the picture. If the shortcoming can be attributed to the seller, as a purchaser you can also claim compensation, for example for the costs you have already incurred. However, as a buyer you must not wait too long before you submit a complaint. The law uses the term “within a reasonable time” for this. You have roughly three months to report a defect to the seller after its discovery. If the seller does not comply, you will have to take legal action against him. You must do this within two years of reporting the defect, otherwise your rights will be time-barred. If you want to save yourself all this trouble, always have the boat thoroughly checked for any hidden defects by a recognized expert before entering into a purchase agreement. Then you will certainly meet your obligation to investigate and you will avoid disappointment afterwards.
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