Purchases with hidden defects

J.Stobbaert, The newborn

1. First and foremost, the treatment is different when it concerns a purchase

by a consumer of a company,
between two consumers or between two companies
or an international purchase-sale.

A hidden defect is a defect that occurs after delivery and receipt of the good.

When something is received and there are visible defects, these must be reported immediately upon delivery. As a rule, only the hidden defects apply afterwards.

2. When a consumer buys something from a company (e.g. a shop, department stores, via web shop) and defects occur within two years, he/she is entitled to repair or replacement, not to the dissolution of the agreement.

There is a suspicion that it was hidden as soon as it occurs within that period, it is irrelevant WHAT THE SALE CONDITIONS MENTION . This also applies to mixed contracts, purchase-contracting contracts (e.g. Ghent, division Dendermonde 6th chamber, 7.6.2018).[1]

The law (art. 1649bis CC) talks about " lack of conformity " (e.g. with the model that was shown - a kitchen).

When the claim is made within the term (limitation period of 1 year), the consumer first has the right to repair or replacement, alternatively price reduction and dissolution of the agreement.

Sometimes it is provided in the agreement that repairs may only take place at the seller so that a guarantee would apply.(sale of 2nd hand car). Even then the legal protection remains in place.[2]

In a different relationship (see b), the buyer can request a price reduction or the refund of his money, but recently the Court of Cassation has ruled that he has no right to repair or replacement (a position that is called old-fashioned and in any case is different in a European context and is criticized by many).

When a consumer buys from another consumer and a defect is established he cannot have it repaired by a third party and then present the bill.

This is still rejected in our system - for the time being.

When a purchase of movable property takes place internationally (see III) (and therefore the Vienna Convention applies), the buyer can request all three, in particular either the right to dissolution, the price reduction as well as the right to repair or replacement and even the right to repair yourself and then submit the bill.

3. If it turns out that the person who sold was aware of the defect and had concealed it (and was therefore in bad faith), then the buyer is even entitled to compensation (e.g.: lost profit, loss of use and enjoyment, moral damage and even consequential damage).

This has been specifically introduced by our courts, and this is even suspected in the circumstance that a purchase is made from the manufacturer or the specialized (professional seller is therefore not sufficient, cf. HvC 7.4.2017, TBO 2018 page 412) seller, who is of bad faith.

This means that when determining the defect, the courts automatically assume that they were aware of it and that they must then compensate all aspects of damage.

In the past, this was withheld from professional sellers by the court and that could therefore be anyone (such as a project developer, a property developer, a garage dealer or an intermediary).

A recent judgment of the Court of Cassation has now specified that this only applies to a specialized seller.

A reseller or a project developer will therefore not automatically be seen as a specialized seller.

So a specific level of knowledge is assumed.

4. It is also important to pay attention to the general terms and conditions for a purchase-sales agreement.

It is often stated that the seller is not responsible for the hidden defects.

This is also regularly stated in purchase agreements for land or houses.

However, if the seller was aware of the defect or if he is a specialized seller, this does not apply.

All in all, this part is still a complex regulation and it can be expected that legislation in this area too could be amended in the near future and that the situation could be made uniform.

[1] DCCR 2019, n°125, p.1

[2] Corporate Court Ghent, dvision Kortrijk, 24.10.2019, DCCR, nr. 127, p. 129