Mr. Fischer did not know that in the Netherlands a real estate agent is not ‘above the parties’, but acts purely on behalf of the seller. He waived the pre-inspection and that cost him dearly.
In many purchase agreements through an agent it is stated that the buyer only has the right to inspect the vessel after the sale has been concluded. Then there must be “substantial defects” whereby the repair costs exceed 10 percent of the purchase price to give the buyer the right to rescind the contract. This case shows again how important it is to have a vessel inspected prior to purchase.
Mr. Fischer saw a brokerage advertisement of a polyester motor vessel, year of construction 2005, first owner, purchase price (rounded) 180,000 euros. The vessel had been on shore every season, had had a preventive osmosis treatment at manufacture, and was (according to the seller) in tiptop condition. Fischer informed the broker that he would like to have an expert opinion prior to the purchase. To determine his negotiating position, he also asked how much the seller had originally paid for the vessel. The broker reported that the vessel had cost 253,000 Euros at the time and even provided an invoice of this. The original invoice would be part of the purchase agreement, and Fischer would receive it on the day of signing. In the end, it came down to a purchase price of 155,000 euros, with the agreement that the seller would still do some work on the ship .
In the confirmation email, Fischer asked about the inspection he wanted. According to the broker, Fischer had waived the survey and had taken delivery of the vessel “wie gesehen also ohne Expertise”. He referred to the draft purchase agreement sent to Fischer. Fischer was surprised; had he not clearly indicated in advance that he wanted an expertise before the purchase was finalized?
However, the broker insisted that Fischer had forfeited that right. Being of German nationality, Fischer thought he could trust that when a broker mediates and boasts of memberships in various industry associations, he will have the integrity to inform both parties of their rights in a balanced way, and based on the earlier statement that the boat had been ashore every season, had always been carefully maintained and was in tip-top condition, Fischer left this issue for what it was. Naive, as it turned out. Only during the sea trial, two weeks after the day the contract was signed, did Fischer receive the original invoices. To his amazement it turned out that the seller had not paid 253,000 but only 200,000 Euros in 2005! When the ship was taken out of the water, to make matters worse, there were huge blisters on the hull. An expert who was brought in concluded that the ship was seriously affected by osmosis. This had to have been present during the production process, given the state it was in, a unique situation. According to the seller, however, the vessel had undergone a preventive osmosis treatment. So how could the ship have osmosis?
Mr. Hommersom wrote to the other party. The latter stated that the osmosis had possibly occurred a year and a half earlier and that he could not have known about it since the vessel had not been out of the water during the 2009/2010 season. According to the ad the boat was really out of the water every year! Also there the seller was not telling the truth. Through the lawyer of the seller the broker then simply claimed that Fischer had explicitly agreed with him that he would waive the survey! When asked, Fischer could only reply that he had never intended to waive the survey but that he was under the impression that he was no longer entitled to it because the estate agent had simply told him so.
He could have started a lawsuit because in all kinds of areas it turned out that the seller had not been so careful with the truth. From a cost/benefit perspective, however, he decided to take the plunge. The parties reached a settlement, whereby Fischer had to conclude afterwards that he should consider his damage as “Lerngeld”.
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