Seller's duty to disclose
Written by:
Hein Kernkamp
Non-conformity
Article 7:17 of the Dutch Civil Code stipulates that a sold item must comply with the agreement. An item does not comply with the agreement if the item does not have the properties that the buyer might expect under the agreement. The purchaser may expect that the item possesses the properties necessary for its normal use, the presence of which he did not have to doubt, as well as the properties required for a special use provided for in the contract. If not, then there is non-conformity.
Remedies for non-conformity
In case of non-conformity, the buyer can demand that the seller repairs the delivered goods or delivers another good item. If this is not possible, the buyer can cancel the purchase agreement and claim compensation and refund of the purchase price.
Obligation to investigate
The buyer cannot invoke that the item does not comply with the agreement if this was known to him or could reasonably be known at the time the agreement was concluded. The buyer therefore has an obligation to investigate.
The buyer can only expect those properties of which he does not have to doubt the presence. It is therefore a good idea for the buyer to conduct his own research and to ask the seller questions about the properties of the item to be sold. The extent of the investigation obligation depends on the nature of the case and the further circumstances.
The buyer of a house or other real estate can fulfill his obligation to investigate by viewing the house, asking the seller questions or having an professional inspection carried out. No such extensive research obligation is required of someone who orders a new product online. In short, the duty of investigation is interpreted differently in every situation.
Seller's duty to disclose
A seller must prevent the buyer from having a distorted and unfair picture of the object and has to share important information with the buyer voluntarily. If the seller is aware of a defect in the good and knows or should have known that that property is of interest to the buyer, the seller must inform the buyer. This duty to disclose exists both solicited and unsolicited. The seller is therefore deemed to inform the buyer, without being asked, of defects that may affect the purchase decision or the offered price.
Seller's duty to disclose takes precedence over investigation obligation
The main rule is therefore that the careless buyer who did not conduct sufficient investigation is the victim of his own carelessness. However, this will change if the seller has violated his disclosure obligation. According to the Netherlands Supreme Court, a buyer, even an imprudent buyer, cannot be objected to having failed to investigate if the seller had an obligation to disclose, but failed to inform the buyer of factual information known to the seller.
Conclusion
The buyer who insufficiently fulfills his obligation to investigate undermines his own legal position in the sense that he will not be able to invoke non-conformity if the case proves not to have the assumed property. As a rule of thumb, the failure to conduct one's own investigation will generally not be able to be invoked against the buyer by a seller who has violated his duty of disclosure by keeping silent where he should have spoken.
Consult a lawyer
Do you have a dispute about non-conformity and the influence of the obligation to investigate and the duty to disclose? Discuss your case with us without obligation. Call or email us to make an appointment for a non-binding informative meeting, in which we can indicate what we can do for you. We like to help you. It is not without reason that our motto is: "Your problem, our concern."
More information?
Hein Kernkamp will gladly help you further.
