Waterkampioen watersport magazine

Not complaining in time is skipping!

Unfortunately it happens that a purchased ship turns out to have defects afterwards. Legally speaking: ‘that what has been delivered does not comply with the agreement’. When you discover a defect, you should not wait too long to report this to the seller.

Mr. Lumière bought a modest second-hand motor yacht from the 1970s of around 10 meters from a private owner for about €25,000. Lumière did not do an inspection, but relied on the seller’s words of praise. Shortly after the transfer it became apparent that the engine was not functioning properly and was running hot. Lumière complained to the seller, who had a repair done at his own expense, after which Lumière took the boat back at the end of June 2015. In early October 2015 Lumière informed the seller that the engine was still not working properly and was heating up again. During winterization, it became apparent that there was no coolant left in the engine. To this complaint by Lumière, the seller responded by saying that he felt he had done everything that had been agreed and that as far as he was concerned the book was closed. Lumière did not accept this and sued the seller.

Extremely disappointing for him, however, the subdistrict court rejected his claims. The court held that Lumière had not fulfilled its ‘duty to complain’ and therefore could no longer invoke its legal right with respect to the fact that the engine delivered did not comply with the contract. Lumière, as a reasonable creditor, should have been expected to investigate whether the problem had actually been solved after the repair work had been carried out. The fact that Lumière had not actually sailed with the ship at all from June to October and therefore could not have noticed the cooling problems did not matter to the court. He should have examined the repair properly when he took delivery of the ship. For Lumière this was a sad case that ultimately cost him a lot of money.

Competent time.
This case shows how important it is to complain in time, even when you are not sure whether something is wrong, but perhaps have a suspicion (the engine still smokes or runs irregularly, etc.). The law provides a so-called general duty to complain/time limit in 6:89 of the Civil Code: “The creditor can no longer invoke a defect if he has not protested to the debtor about it within a reasonable time after he discovered or reasonably should have discovered the defect.”

There are actually two deadlines at play here:
(a.) the examination period which, after the passage of time, turns into
b.) a notification period, the so-called real complaint period.

What is meant by this specifically? Simply, it means that when a delivered item is received, the buyer/customer may not automatically assume that the item is in order.  If a complaint subsequently reveals that it should have been discovered during an investigation ‘reasonably expected of you’, the complaint period has already started before the defect was actually discovered.

Two months.
In contracts between private individuals, there is no hard-and-fast deadline within which you must complain, but a handle offers what the law has determined for the so-called ‘consumer purchase’. If the buyer is a ‘real’ consumer and the seller is a professional, article 7:23 paragraph 1 of the Civil Code states that the complaint must be reported within a reasonable time and that a period of two months after discovery is in any case timely. This two-month period is not a law of averages, but depends on the circumstances of the case. But the main rule is: If you buy something as a consumer from/or have it repaired by a professional company, the complaint period starts as soon as you have actually discovered the defect or could have discovered it. In addition, fortunately, you usually have a warranty period. Within that period, the seller is expected to unconditionally deal with and/or remedy all complaints.

TIPS: Consumer contract or not, it is important not to be too passive upon delivery of your boat or any work done. Always check carefully whether the work was done properly. If you don’t have the expertise in-house, have an expert inspect the work if necessary. And if there is something wrong, put the other party in default in writing (by e-mail). Then you have proof that you have complained in time.

More information or download old articles: https://www.anwb.nl/kampioen/algemeen/digitaal-archief

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Frits Hommersom met groene bril

"You have the right to a lawyer who tells it like it is!"

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