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Legal guarantee in the Netherlands

My previous blog post covered the right of cancellation in the online world. Related to this right of cancellation, and oftentimes in some way confused with it, is the legal guarantee period. The legal guarantee period has also been the subject of extensive debate between European member states and is harmonized by the European legislator. Contrary to the right of cancellation, member states did have some leeway as to the implementation of the legal guarantee period. So, what should you expect when offering your products on the Dutch market?

First of all, what is this legal guarantee period? When consumers purchase products they are entitled to receive products of a satisfactory level. Those products should reflect the way they are presented and described, and should also meet the reasonable expectations of the consumer. As a seller you are obligated to deliver proper goods. This applies in physical as well as online shops. The European legislator decided that the minimum duration of this guarantee should in all member states be 2 years. During this period, the products should be in conformity with the sales contract. If this is not the case, consumers can then either ask for the products to be repaired, replaced or in some cases demand a full refund. Repairing and replacing should be free of any charges.

As mentioned in the introduction, member states did have some leeway. They can deviate from the rules as prescribed by the legislator, but only insofar as they come to the advantage of the consumer. The Netherlands decided that this 2-year period should not apply to all goods. In general people expect a washing machine to have a longer lifespan than a mobile phone. Because products have differing life spans, this 2-year period was deemed ill fitting. As a result of this, the legal guarantee period is now dependent on the expected lifespan of the product in question.

What does the foregoing mean in practice? If you’re selling products in the Netherlands, don’t state that the guarantee on all products is two years or any other predefined period. You should indicate that the legal guarantee applies and briefly explain what it is. It should at least mention that the legal guarantee means that products should be or function the way consumers might reasonably expect. If you’re offering any additional commercial warranties, explicitly state that those warranties are without prejudice to the legal rights of the consumer. This is also the case with guarantees offered by the manufacturer. This guarantee is also separate from the legal guarantee. As a seller you are responsible for solving the problem and should not refer the consumer to the manufacturer.

Additionally, in the Netherlands we have used the requirement that consumers should inform the seller of the lack of conformity within a period of 2 months after discovery. You should, therefore, refrain from indicating any shorter periods. Also be aware of the fact that within the first 6 months after the purchase date, the burden of proof rests on the seller. After this period it is up to the consumer to proof that the goods were faulty. The seller is not responsible when the shortcoming was actually the result of how the consumer misused the product or is the result of normal wear and tear. Just as with the right of cancellation, the legal guarantee period only applies to customers being consumers.

Philip van der Weijde

Legal advisor
Fillip works as legal advisor at ICTRecht and is part of the cloudteam, which mainly focuses on cloud computing. Philip advises customers about producing and reviewing various ICT-contracts. Next to this, he helps customers with negotiations about complex ICT-contracts. In this, he guides both the purchaser and the supplier

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