Is the duty to complain bound by a formal requirement? Is a notice in the café sufficient to satisfy the duty to complain?
We have written about this topic before: the duty to complain (the Dutch ‘Klachtplicht’).
Is the duty to complain bound by a formal requirement? Is a notice in the café sufficient to satisfy the duty to complain? Yes it is!
In the case (Rb. Zeeland-West-Brabant 24-05-2023, ECLI:NL:RBZWB:2023:3593) the buyer purchases an almost new home built by seller in 2010. The seller guarantees in the purchase agreement that the home is suitable for normal use as a residence for permanent occupancy. The buyer discovers serious leaks on the roof in early 2020. He tells the seller about these leaks when he meets him in a catering establishment. The buyer engages an expert to examine the roof and provides the expert report to the seller in late 2020. According to the expert report, there are building and construction defects to the roof. The seller commissions a counter expertise. The buyer claims the repair costs of the roof on the grounds of nonconformity and delusion. As its most far-reaching defense, the seller invoked the duty to complain within the meaning of Article 7:23 of the Civil Code. The seller argues that the buyer knew about the leaks in early 2020 and only sent the expert report to the seller in late 2020, which was too late.
It follows from the ruling that the court does not agree with this defence and that a brief conversation is sufficient to satisfy the duty to complain.
The court held that the buyer complained in a timely manner by notifying the seller of leaks in the conversation at his catering establishment in early 2020.
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