What is a hidden defect? Legal aid and sample letters

Hidden Defects under Dutch Law, information and legal aid

Information and sample letters regarding hidden defects in supplies, houses, cars, horses, and other items.

As a business owner or consumer, you undoubtedly enter into purchase agreements regularly. You can be either the buyer or the seller in such transactions. Most of the time, these types of transactions go smoothly. The product is delivered, and the purchase price is paid.

Things can go wrong if the product has a defect. Important questions then include:

- Does the seller need to repair the defect?
- Does the buyer need to pay the purchase price? Or can he, if it has already been paid, demand a refund?

Liability for Defects

In general, the buyer can expect that the delivered product meets reasonable expectations he has set. For example, the buyer of a new office building can expect it not to contain asbestos, and the buyer of a new machine can expect the machine not to constantly malfunction.
If the delivered product does not possess the qualities that the buyer could reasonably expect based on the agreement, it constitutes a deficiency, also known as a defect.
In general, the seller will not be liable for a defect that the buyer could have seen. After all, a visible defect would have already been taken into account in determining the (lower) purchase price. Therefore, discussions usually revolve around liability for hidden defects.

Liability.for hidden defects

In essence, the seller of a defective product is liable if:
1. the defect was hidden;
2. the defect hinders normal use or hinders specific use if the parties had a specific use in mind;
3. the buyer did not need to doubt the absence of the defect.

Explanation:

Ad 1: Defects that the buyer noticed before the purchase or could have noticed are not 'hidden' defects.
Ad 2: It is clear that an office building must have a leak-proof roof to be used normally, but a roof with low insulation value does not usually hinder normal use. However, the low insulation value can be a defect if the buyer and seller had a specific use in mind, such as an indoor skiing facility.
Ad 3: If the buyer of a building sees signs of leaks on the walls, he should doubt whether the roof is truly leak-proof. If there is oil under a used car, the buyer should doubt whether the engine is still in good condition.

When determining whether the seller is liable for the hidden defect, other factors come into play, such as: did the buyer have an obligation to investigate, or did the seller have an obligation to disclose? Has the seller provided warranties? Is the seller still liable due to the 'age' of the used product or an age-related clause?
For further clarification on these matters, we would like to refer you to our special website on hidden defects, www.hidden-defects.net, and the webpage on hidden defects in cars.

Legal Actions.

If the seller is liable for the hidden defect, what legal actions can the buyer take?
If the buyer has not yet paid the purchase price, he can suspend his payment in full or in part. Please note: the unpaid amount must be proportionate to the seriousness of the defect. Moreover, the buyer must explicitly inform the seller that he is exercising his right to suspend payment. This is best done with a registered letter.
The buyer can also demand that the seller delivers properly (for example, repairs the defects at their expense). In this case, he is demanding performance.
The buyer can also choose to cancel the purchase agreement entirely or in part, usually only after the seller refuses or is unable to deliver properly. If the purchase price has already been paid, the buyer is entitled to a full or partial refund of the purchase price.
In some cases, the seller is not only obligated to refund the full or partial purchase price but is also liable for any damages the buyer has suffered due to the defect in the delivered product. For example, a supplier of faulty plant pots was liable for the damages resulting from a failed harvest.

Please note: for the aforementioned legal actions, an 'notice of default' is usually required. With a notice of default, the buyer gives the seller a final deadline to deliver properly.
You can order a 'model notice of default' below.
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Model Notice of Default


Model Letter for House Defects
If you are a buyer of an existing house and are dealing with (hidden) defects in your house, such as leakage or otherwise, please order the letter below to hold the seller of your house accountable properly.

Model Letter for House Defects


Sample Letter for Auto, Motorcycle, Boat, Caravan, Camper Defects
In case you have purchased a vehicle (or a boat, motorcycle, camper, or caravan) with defects, we recommend that you order and use the sample letter below to strengthen your legal position. Also, read our special webpage about defects in cars.

Sample Letter for Reporting Auto Defects


Horses: For information about hidden defects in horses, visit: hidden defect horse or order Sample letter:


Sample Letter for Cancellation of Purchase Agreement

If you have purchased an item (car, boat, horse, etc.) with a serious defect, but the seller refuses to repair the defect or provide a proper replacement, you may consider canceling the purchase agreement and requesting a refund. Use our sample letter for canceling a purchase agreement.

Report Promptly

Finally, it is essential that the buyer inspects the delivered item as soon as possible and, upon discovering a defect, reports it to the seller promptly. This is known as the 'duty to complain.' The deadline for successful complaints is often surprisingly short and is determined not only by law and court rulings but may also be specified in the sales terms and conditions.

Legal Assistance in case of hidden defects

If you need assistance in pursuing performance, compensation, or a refund, you can call or email us. Our hidden defects lawyers and legal experts will be happy to assist you. Of course, we also help business owners who want to defend themselves against legal claims. Call for legal assistance at 020 - 6890 863 or email us.