If a company delivers products, the delivery is not yet over. Certain obligations continue. The law states that the buyer is entitled to a guarantee. Purchasing conditions often contain stricter guarantee provisions, while sales conditions contain less strict ones. An agreement to deliver an item only ends after all those obligations have ended. And when is that?
Duration of legal guarantee not regulated in the Netherlands
In the Netherlands, the legal guarantee is regulated differently than in the EU countries surrounding us. In the countries surrounding us, the term of the guarantee is determined by law, usually two years. But not with us. In the Netherlands, there is no general legal guarantee term. If nothing has been arranged between the parties, the guarantee to be provided may simply be shorter or much longer than the two years mentioned above. It is also possible that (usually) the seller excludes the guarantee altogether.
How long is the warranty period in the Netherlands?
In the Netherlands, parties can agree on a specific warranty period of, for example, 1 month on consumables and 2 years on other products. If they do not do this, they fall back on the statutory provisions.
The law stipulates that a delivered item must comply with the agreement. The decisive factor is what the buyer could expect regarding the properties of the item. The nature of the item is important, but also, for example, statements from the seller and the content of the agreement. So if the seller has stated in an e-mail that the level sensor offered will indicate the water level offshore of the sea lock gates with at least 0.1% accuracy for 10 years, weather permitting, the buyer may rely on that. If the sensor has become less accurate after 6 years, it is entitled to a guarantee, even after 6 years.
If it turns out that the inaccuracy is the result of using a screwdriver to manipulate the measuring diaphragm to remove a raging chicken pox, then this is a defect due to improper use and the buyer is not entitled to any warranty.
But if the buyer did use the sensor judiciously and there is a warranty case, then the seller must take care of the repair at his own expense. But beware, the buyer does not have to benefit from it. Repairing the sensor or replacing it with a properly working copy of six years is sufficient.
What about semi-finished and built-in products?
The above will undoubtedly lead to many disputes when a purchased product is built into a larger installation. It is often not easy to see what the cause is of the malfunctioning. This is where the need for good general terms and conditions comes into play. In the agreement and in the general terms and conditions, parties can include their own warranty provisions. In doing so, they render the legal provisions inoperative (in B2B).
PURCHASE CONDITIONS versus SALE CONDITIONS
Purchasing conditions will stipulate that the purchased item must be suitable for the purpose and use intended by the buyer and that the buyer must investigate this himself. The seller cannot therefore rely on the buyer not having informed him sufficiently. This is extremely one-sided and can hardly be reasonably expected of the seller in practical terms. Yet this is stated in almost all purchasing conditions.
The FHI Terms of Sale stipulate that the seller only guarantees the correct functioning according to the product specifications. After all, this can be checked on the test bench. It also stipulates that the seller only guarantees that the product works well with the other installation components of the buyer if this has been explicitly agreed in writing. This means that the risks for both parties are distributed much more evenly and it is easier to check whether the delivered product is causing the problems or the installation of the buyer.
Take away´s
- Make sure that the warranty period is clearly stated
- Check whether the general terms and conditions of sale apply (see my previous publications);
- If you are bound by purchasing conditions, stipulate contractually that you only guarantee operation in accordance with product specifications;
- Do you still want to guarantee correct functioning after installation? Then make clear under which specific conditions the product to be delivered must function.
- If there is a dispute between parties regarding a defective product and/or warranty, please contact a lawyer who has knowledge and experience of technical products and installations.
If you would like to know more about this subject, for example about what else you can arrange in an agreement if you are bound by purchasing conditions, please feel free to contact me.
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