Conformity and vendor guarantee

Published by: Rebecca Weisz-Hertsworm posted on 9 May 2022 reading time

As an entrepreneur, what do I have on my bicycle?

What changes for the entrepreneur?

EU legislation should make it easier to sell things like clothes and bicycles across national borders. But what if the consumer feels he has bought a pig in a poke? The EU is also striving for better consumer protection. Recently, the rules on conformity and seller's guarantees have been extended. We discuss which matters will change for you.

Conformity and the extension of the duration of the presumption of evidence

If the entrepreneur sells a bicycle, the consumer buyer may expect the bicycle to fulfil the agreement. If you deliver a scooter instead of a bicycle, the product does not meet the requirements of the agreement. It becomes more complicated if you deliver a bicycle, but the bicycle does not have the characteristics that the buyer could expect on the basis of the agreement.

Suppose you are selling a 'ready to ride bicycle'. The buyer will then expect the bicycle to have two mounted and inflated tyres. If the purchaser believes that the bicycle does not comply with the agreement, the purchaser must state this and, if the seller contests this sufficiently, prove it.

Article 7:18 paragraph 2 of the Dutch Civil Code stipulated that it is assumed that a good, upon delivery, does not meet the agreement if, within six months after delivery, it becomes clear that the good deviates from the agreement. This term has been extended by six months so that this presumption now has a term of one year. As a seller, it is not sufficient to simply refute this presumption. The seller must be able to prove that the defect arose after the delivery of the goods.

It also follows from the directive that the item sold must be fit for its purpose. In the example of the bicycle, the bicycle should be suitable for transporting a person. If the delivered bicycle does comply with the purchase agreement, but is not suitable for transporting a person, it may still be non-compliant.

Seller guarantees

Another point of attention is the commercial guarantees, also known as the seller's guarantee, because the EU sets a number of requirements for proof of guarantee. If you, as a seller, choose to offer the consumer more guarantee than what the consumer is entitled to under the law, then that proof of guarantee must be provided to the consumer on a durable data carrier (such as e-mail or a receipt on paper that does not easily decay) and the proof of guarantee must be written in clear and understandable language. The guarantee statement must in any case contain

  1. a clear statement that the consumer is entitled by law to remedies free of charge from the seller in the case of a lack of conformity of the goods and that such remedies are not affected by the seller's guarantee;
  2. the name and address of the guarantor;
  3. the procedure to be followed by the consumer in order to obtain the performance of the seller's guarantee;
  4. the designation of the goods covered by the commercial guarantee; and
  5. the seller's guarantee conditions.

Cycling through the text

The consumer is helped more to avoid the need for proof if the seller objects that the defect did not arise until after delivery. The consumer has to prove that the purchased item deviates from the contract and that this deviation manifested itself within twelve months after delivery. It is then up to the seller to prove that the item did comply with the contract at the time of delivery. The seller will only succeed if the court does not (any longer) suspect that the defect arose at the time of delivery.

Among other things, we can help you draw up an agreement and shape your delivery process. If you would like to know what else we can do for you, please contact our specialists.