Duty to complain about hidden defects: buyer must complain in time!

If there is hidden defects, then the buyer must complain about it in time. Failure to do so can have far-reaching consequences. So much so, that the buyer then no longer has a claim for repair or compensation from the seller. Regardless of how serious the hidden defect is.

Duty to complain and forfeiture of rights

In fact, the law states that the buyer can no longer claim nonconformity if he has not complained within a reasonable time after discovery. Then it is over and out for the buyer. What exactly constitutes competent time is not stated in the law and depends on all circumstances of the case. In case law it is usually assumed that the buyer is allowed to take time to further investigate the nature, cause and severity of the defect before complaining. We often advise involving the seller in that investigation at an early stage. Provided the invitation to do so is formulated correctly, the obligation to complain is then usually fulfilled.

Note: duty to complain sometimes begins before discovery

The duty to complain may also start before the actual discovery of a hidden defect, namely, at the time the buyer should have discovered it. This is only not the case if it involves facts that the seller knew or should have known and did not communicated. Or if a feature is missing that the seller said the item had. In all other cases, therefore, the obligation to complain starts when the buyer should have discovered the defect. He can therefore be expected to inspect the item with due diligence after delivery.

Short statute of limitations

What is also often overlooked is the statute of limitations. Indeed, in the case of nonconformity, it is only 2 years. The statute of limitations begins to run after the defect has been complained about. So again, vigilance is required. And admittedly, you may have the bar, but the expiration period by not complaining in a timely manner is harsh. Nothing can be done about an expired claim.