That it is wise not to rely solely on the blue eyes of the seller when buying a second-hand yacht is clear to many water sports enthusiasts, whether or not through damage and disgrace. Why should you only inspect a ship when the sale is already closed?
The law says that “a delivered good must comply with the agreement and that he does not do so if, also in view of the nature of the case and the statements which the seller has made about the case, it does not have the properties which the buyer on the basis of the agreement may expect.” An item therefore has a defect. In the sales contract that yacht brokers use as standard, this is further described as a substantial defect: “a shortcoming of a material, part or an assembly of parts, as a result of which it does not (or no longer) have the characteristics that may be expected and a proper functioning … prevents a safe use of the vessel as a whole.” Quite a mouthful, but more importantly, does this flag cover the load?
A purchase agreement involves a buyer and a seller, with or without the intervention of a broker. Especially in the purchase of a second-hand yacht there is an area of tension between the seller’s duty of disclosure and the buyer’s duty of investigation. Very briefly put: the seller does not have to report every imperfection of his own accord, but if he is asked about it, he may not make any false statements. If it concerns serious defects which prevent normal use, then the seller, if he is aware of them, must also make unsolicited announcements about them. Even if the seller was unaware of a defect discovered after the sale, he must guarantee this to the seller, unless otherwise agreed in accordance with Article 7:17 of the Civil Code. The seller is generally only liable for substantial defects. Not every imperfection constitutes a so-called non-conformity. The buyer must, depending on the age and price of the vessel, to a certain extent take into account the maintenance performed and adjustments made to the requirements of the time. Unfortunately it happens all too often that a defect is hidden and only comes to light after the sale has been concluded. The seller will usually say that he did not know about it and if the defect is not “substantial”, you have a problem as a buyer. The judge assumes in general that you as a buyer, especially with a second-hand ship, have an independent responsibility / obligation to examine the ship. Read: inspection.
Inspection after the sale?
Of course it is logical to survey the vessel in advance. However, in many of the standard contracts used in The Netherlands it is included that the buyer has the right to have the vessel inspected after the conclusion of the agreement. The parties therefore first conclude the agreement and are thus legally bound. The contract then stipulates that the buyer then has the right to have a survey carried out, which is intended to detect substantial defects. As a rule, there are three possibilities when an expert finds substantial defects:
1. The seller repairs the defects;
2. The agreed purchase price is adjusted;
3. The substantial defects exceed a previously agreed amount or percentage of the purchase price and the buyer may dissolve the contract.
The biggest objection is that only after the purchase it becomes clear what the technical situation of your boat is. Then you have to wait and see how an expert qualifies any defects. If the expert does not qualify the defect as ‘substantial’, you are stuck with the purchase, even though that defect may require expensive repairs. The biggest objection is and remains that you, as a prospective buyer, can no longer freely decide whether you want to accept a ship with certain defects because you have already concluded the purchase. Suppose the surveyor finds that the repair costs exceed the amount or percentage of the purchase price stipulated in the contract and the seller disputes the amount of those repair costs. Then you, as a buyer, will have to go to court to be able to cancel the purchase. Then again an expert will have to determine whether the surveyor has determined the repair costs correctly.
Tip: have the ship surveyed before the purchase and not afterwards. On the basis of those findings you can then discuss with the seller whether you want to continue the purchase under the same conditions, or that you want to change the price or that certain defects are repaired at the expense of the seller before the sale. You can then freely decide whether you want the boat or not and are not tied to the agreement. If you are not allowed to inspect it in advance, should you want the boat?
More information or download old articles: https://www.anwb.nl/kampioen/algemeen/digitaal-archief