The purchase of a kitchen: many of us have experience with such a transaction. In a purchase that eventually made it to the Court of Appeal in Den Bosch, just about everything went wrong. In the legal discussion between buyer and seller, the copy of the delivery note played a crucial role. Was the content of the delivery note in accordance with the truth? And who has to prove what?

Facts

The consumer bought a kitchen (brand: Miton) for €16,000. This amount was paid in full. Unfortunately, upon delivery the kitchen cabinets turned out to be larger than the kitchen top. Subsequently, the cabinets were shortened by 4.5 centimetres. There was also something wrong with the system of the handleless doors. And to make the disaster complete, the kitchen turned out not to be of the Miton brand, but of the Aran brand. But according to the seller, after the conclusion of the sales contract, there was an agreement to deliver an Aran kitchen instead of a Miton kitchen. In order to prove this, the seller showed an undated delivery note.

On the delivery note, the buyer had written by hand "handles received". The following was also typed on the receipt: "AS PER ORAL AGREEMENT KITCHEN AS NOW DELIVERED ACCEPTED (ARAN CUCINE SERIES LAB13)". Although it is an established fact that the original receipt was signed by the buyer, the buyer argues that the typed text was not put on the receipt until after the buyer had signed it. The kitchen company disputes this and argues that the text was indeed already on the receipt when the buyer signed it. In short, according to the seller, the buyer had expressly agreed to the Aran kitchen and that was the end of it.

Judgment of the Disputes Committee on Housing

The buyer filed the case with the Disputes Committee for Housing (Geschillencommissie Wonen): he wanted the sales contract to be dissolved and demanded that the kitchen be removed. However, the buyer was found to be in the wrong, according to the Disputes Committee, in view of the signed delivery note.

Ruling of the Court of Appeal

The buyer did not leave it at that and the case eventually ended up at the Court of Appeal in Den Bosch. The Court of Appeal ruled differently from the Disputes Committee: the binding advice of the Disputes Committee is, in the given circumstances, 'unacceptable according to standards of reasonableness and fairness'. This is in view of the way in which the advice was arrived at and the content thereof. The Court of Appeal gives this opinion because the Dispute Commission has – wrongfully - completely ignored the buyer's argument that he did not receive a copy of the delivery note when he signed it, and that he only received a copy of the note months later (via his lawyer), when a dispute had already arisen.

Who bears the burden of proof?

Then the question: who has to prove that the delivery note is false? According to the Court, the delivery note is a so-called deed. This is a signed document that is intended to serve as evidence. This deed provides conclusive evidence between the parties. In other words: in principle, it must be assumed that the text of the note is correct. In that case, the buyer has therefore agreed to the Aran kitchen being installed. However, now that the buyer denies that the copy corresponds to the original document signed by him, the main rule is that the buyer must prove that the receipt is false.

But now comes an important "but": this main rule of conclusive evidence of the content of the note only applies if the original note is available. The kitchen company no longer has an original delivery note. The copy of the delivery note only has free evidential value under the law, not conclusive evidential value. In other words: the court should not assume in principle that the text on the delivery note is correct.

The Court of Appeal does not consider it proven that the parties agreed that an Aran kitchen would be delivered instead of a Miton kitchen. In view of the free evidential value of the copy of the delivery note, the delivery note does not prove that the parties have changed their agreement. After all, a copy of a delivery note can be manipulated. Conclusion: the kitchen company has to pay back over €15,000 and take back the kitchen.

You can read the full judgment here (in Dutch).

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