Complains after purchase contract: don’t wait too long!

If you buy something and the product does not comply with the requirements that you could expect, you are entitled to reimbursement of the purchase price or damage compensation. But these rights can expire if you don’t complain to the seller about the defect in time. This is defined not only in Dutch legislation but also in international legislation, such as the Vienna Sales Convention. In a recent case about an international purchase, the obligation to complain under the Vienna Sales Convention was invoked. Dutch contract lawyer Marco Guit explains this obligation to complain.


Product does not comply with purchase contract

This case concerns the following. A supplier sells a batch of scrap metal to a buyer. The contract states that the average copper contents of this batch is 25%. The buyer in his turn sells on this batch to a buyer in China. When the batch arrived in China, the buyer found that this batch of scrap metal did not have an average copper contents of 25% but only 20%. Because of this defect, the buyer only pays a part of his invoice.

Invoking breach of obligation to complain in Vienna Sales Convention

The buyer holds the supplier accountable. In court proceedings the supplier invokes the Vienna Sales Convention. According to the supplier the buyer was too late in complaining and his rights have expired. It was agreed that the buyer would immediately check the scrap metal for its copper contents before shipping it to China. Although the buyer did check the batch, he did this so superficially that he did not discover the nonconformity.

Loss of rights if the complaint is too late

Article 39 paragraph 1 of the Vienna Sales Convention stipulates that the buyer loses his right to invoke that the products do not comply with the agreement if he does not inform the seller of this within a reasonable term after he discovers this, or should have discovered this. The time at which the buyer should have discovered the defect depends on the time at which he has to check the products or have these checked. On this issue article 38 paragraph 1 of the Vienna Sales Convention stipulates that the buyer has to do this as soon as possible (under the circumstances).

Court of Appeal: the nonconformity should have been discovered

The issue before the Court of Appeal is whether the buyer should have discovered the nonconformity alleged by the buyer, sooner, or as the case may be, himself. The Court of Appeal confirms this. There are two investigation methods to determine the copper contents. In the opinion of the Court of Appeal the buyer could be required to use these investigation methods. The conclusion is that the buyer should have discovered the alleged nonconformity (using the methods of investigation aforementioned by the Court of Appeal) when he checked the scrap metal.

AMS Advocaten advises in international purchases

Because the buyer only complained after the buyer in China discovered the nonconformity, he is too late. This means that the buyer can no longer invoke the defect and has lost his right to damage compensation or deduction.