Waterkampioen watersport magazine

The case of the non-waterproof sloop.

Conformity means that you can expect that something you buy also does what it was made for. The inner hull of Mr. van Boven’s boat sucked its way full of water, which is not right!

Mr. van Boven saw an advertisement on Marktplaats for a boat, “never used, demo model”, at an attractive price. Mr. van Boven negotiated with the seller – a trading company, not specifically water sports oriented – and bought the boat. Mr. van Boven paid a sum of 17,000 euros. He left the sloop in storage for a year and, in mid-2010, an electric propulsion system was built into it, at a cost of 11,000 euros. Van Boven went into the boating season with joy. However, this joy turned into terror in mid-2011. What was the case: the inside of the hull and the cockpit benches began to swell due to moisture absorption. The entire cockpit floor was affected by moisture and the bulwarks were completely delaminated. Van Boven had an expert examine the ship and he concluded that completely unsound materials had been used to build the inner hull of the ship. The usual construction method for this type of ship is that the outer hull is a polyester shell and the inner hull is also made of polyester and that both shells are glued to each other. However, it turned out that the inner hull was made of MDF and then painted. It goes without saying that this material was unsuitable for a humid environment and did not meet the desired application specifications.

Showroom model Closer examination revealed that the boat had probably served as a showroom model for the manufacturer of the sloops and that the inner hull was the dummy that had been used as a mould to form the polyester inner hulls! Van Boven had obviously not been informed of any of this by the seller. The seller then hid behind the argument that he had just bought the boat from a third party, that it was brand new and that he did not know or could in any way have known that it was a dummy model and unsuitable for sailing. The seller’s position was unacceptable to Van Boven and he subpoenaed him. Van Boven claimed that the item did not meet the so-called conformity requirement. An item does not conform to the contract if, given the nature of the item, it does not have the characteristics that the buyer may expect on the basis of the contract. It is clear that when you buy a sloop, the intention is to sail with it and not to store it in your garage. The seller’s appeal that it did not know that the boat was a dummy did not help it. According to case law, a shortcoming consisting of a defect in a sold product is in principle for the account of the seller, even if he is not aware of the defect. Van Boven also claimed payment of the costs he had made for installing a propulsion system. After all, this turned out to be a completely useless expense! Together with the making of a back sheet, which could also not be used anymore, the amount involved was 12,000 euros.

Take-back The judge agreed that Van Boven could not be held responsible for the fact that it was apparently a dummy and ordered the seller to take back the ship, refund the purchase price plus all the costs Van Boven had incurred for the ship. Article 7:17 of the Dutch Civil Code stipulates that when you buy an item, it must be suitable for the use you intend to make of it. If the item does not have the properties that you would expect, the seller is liable for that. Think, for example, of a refrigerator that does not cool or a car whose engine does not work. Of course, this is different if you have been informed by the seller that the item is not suitable for use. For example, if you buy a scrap car from a junkyard, you should not complain that you cannot drive it. You must, however, complain to the seller “within a reasonable time”, in practice within two months.

Now, should Mr. van Boven have been expected to have the ship inspected? Not in this case. After all: it concerned a brand new yacht and the fact that it was a dummy was so unique that he should not have been aware of it. Extremely sour for the seller, but he in turn had to seek redress with the person who had delivered the ship to him. How that ended, this history does not tell.

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


Frits Hommersom met groene bril

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