Jurisprudence regularly deals with the question of whether a complaint was made in time about a defective performance delivered by a debtor. Not complaining in time has far-reaching consequences for a creditor. A complaint must be timely, clear and preferably in writing. In a case which the Rotterdam District Court recently had to decide, a creditor missed the boat because there was insufficient proof that the complaint had been made in time.
A creditor must check whether a delivered performance corresponds to the agreement and if the performance is defective, the creditor must protest to the debtor within a reasonable time after he has discovered or reasonably should have discovered the defect. This "duty to complain" is included in Article 6: 89 of the Civil Code. Violation of the duty to complain results in forfeiture of rights.
In the case in question, both parties were active in the construction sector. Party A had carried out work on a house for party B and had also rented scaffolding from party B. A sent invoices to B for the work carried out but these remained partly unpaid. B claimed a counterclaim against A. B had sent invoices to A for the rent of the scaffolding (and subsequent loss of scaffolding material) as well as for repair work. According to B, this repair work had to be carried out because A had made mistakes and had not rectified them following complaints. According to B, A would have to pay B after settlement. Party A then started collection proceedings against B. With regard to the remedial work, A took the position that B had not complained in time and therefore could no longer invoke a defect in the performance.
The court ruled that when answering the question of whether a protest was filed in time, all relevant circumstances must be taken into account, including the disadvantage resulting from the passage of time until the protest was filed, and in any case also the observability of the deviation, the expertise of the parties, the mutual relationship of the parties, the legal knowledge present and the need for prior expert advice (HR 8 October 2010, ECLI:NL:HR:2010:BM9615).
B stated that he had complained verbally and via whatsapp. B also invoked two e-mails to A's lawyer. According to the court, however, B could have been expected to substantiate her claim that she had complained in time as much as possible by indicating when she did so. She did not do this by only referring in a general sense to verbal reports and whatsapp messages. Moreover, those whatsapp messages were not submitted, while it could be deduced from B's written response to the summons that the exchanged whatsapp messages were available. Furthermore, B did not make clear when she would have discovered the alleged shortcomings. B's e-mails, which dated from after A's notice of default, did not qualify as a timely complaint. According to the court, B possessed sufficient expertise and could observe the alleged defects immediately. Moreover, A suffered concrete disadvantage because she was denied the possibility of repair - if any - of the defects.
A therefore rightly relied on the fact that B had not complained in time, and B was therefore not entitled to make a claim in respect of the work shortcomings she had alleged.
At the Zeeland-West Brabant District Court, the buyer of a house recently had more success. A few months after the purchase, this buyer noticed that a floor was beginning to spring, that cracks were appearing in the plasterwork and that doors were starting to jam. The buyer called the seller to tell him what was going on, but then sent a notice of default to the seller only 10 months later, without attaching any supporting documents, such as an expert report. According to the seller, the buyer complained too late.
When a property is defective, it is usually necessary to have an expert determine the cause of the defect. However, this requires swift action. The examination may well be waited before the seller is notified that the house does not comply with the agreement, but it should not be waited for months before the examination is carried out and the report shared with the seller.
According to the court, the buyer had complained in time but the question was whether he had acted expeditiously afterwards. The court ruled that he had. The reason for this was that the seller had not sufficiently substantiated that his interests had been harmed by the lapse of time. So the buyer was very lucky, because the verdict could have been completely different.
So don't sit still and raise the alarm in good time if you find that there is a defect or shortcoming. If you need advice on the duty to complain or assistance in drafting a notice of default, please feel free to contact one of our lawyers without obligation. We will be happy to assist you.