Duty to complain

If your contract partner (vendor, supplier, etc.) does not live up to his commitments, for instance by not supplying (correctly), you can remind him of this and still demand correct compliance with the agreements that have been made. If necessary, you can claim this from the non-performing contract partner before a judge.

The duty to complain; what does this mean?

The duty to complain entails that a creditor, who is aware of a defect in a performance, must inform his debtor on this defect. The debtor must be provided the possibility to take measures to undo the shortcoming. If the creditor sits still for (too) long, this possibility is limited and the debtor is harmed unreasonably.

Limitation period

Many people know that the right to make a claim expires after a certain amount of time. Although the claim will not cease to exist (if the debtor pays by accident, this money cannot be recovered), the creditor cannot force a payment. The law then speaks about a limitation period. The law knows several limitation periods, differing from a few months to 30 years, depending on the claim that is established. In general, the limitation period amounts a few years, but it is always wise to check the length or to have it checked and keep an eye on this period. What most people do not know, is that the law also knows a complaint period, which is often shorter that the limitation period. This complaint period gives the creditor the obligation to inform the debtor or vendor on defects in the performance “in due time”.

Due time

What “in due time” means, is now explained in the law. Only for consumer purchases (being a sales agreement between a buyer who acts on personal account and a vendor who acts from business or profession), the law gives directions. A consumer has complained in due time, when this is done within two months after the discovery of the defect.

Because the law does not color the definition for “in due time” for other agreements, it has been discussed often in both case law and literature whether a complaint can be issued in due time after the end of the two months (or more). Supporters said that this could be done and mentioned that the words of the law did not exclude this, together with other arguments. In addition, there can also be a legal warranty period or non-conformity. The buyer of a new car for instance may expect this car to have all features necessary for normal use. If a construction error is caused in the factory, that causes the car to use a liter of oil on every 1000km, a complaint may be issued at the vendor/dealer. After all, such a high consumption of oil may not occur with normal usage of a new car.

Consumer protection

Adversaries followed the line of the fact that consumer protection is often more extensive than protection of other parties and pleaded that it would not be logical if the complaint period for consumers was longer for consumers than non-consumers. For a long time, judges followed the line of the adversaries. Since some time however, judges have also tried to connect to the arguments of the supporters. The far-reaching (legal) consequences of the expiration of the complaint period are often referred to. With the expiration of this term, the creditor loses all its rights in case of a defect, also when they are truly there. This can even result in a situation where the creditor has to pay for a product or service, that has turned out to be worthless because of the defects.

In an attempt to come to a just solution, judges are increasingly researching if and, if so, to what extent the position of the debtor is harmed by the expiration of the period. When the expiration makes it harder to (still) research the claimed defects, the judge will sooner consider that the due period has passed.

Discovering the defect

Besides the fact that the law does not explain the “due time”, the law also does not exactly explain when this period commences. In the light of the law, it is decisive when a creditor has ‘discovered, or reasonably could have discovered’ the defect. The moment at which the defect was discovered can often be pointed out exactly, but it is hard to establish when a defect could have been discovered reasonably. This will have to be examined on a case to case basis. The defect can for instance also be a non-conformity that is discovered after the two months.

Duty of investigation

From the term ‘reasonably could have discovered’ it can be derived that the creditor has a duty of investigation under circumstances. This can for instance occur when a creditor suspects a product to have a defect. The creditor then can not use the argument that there was no certainty about the (potential) defect, when investigation has been omitted. Not living up to this duty of investigation, is then on the account and risk of the creditor.

And what if the results of the investigation take longer than the period? Several legal judgments have been published in which it was said that the creditor than already should have informed the debtor on the suspicions concerning the defect and the investigation.

And what if you are the debtor? Then an appeal to the complaint period can prevent unpleasant discussions.

Individual agreements on the period of complaint

This article has elaborated on the legal arrangements that are relevant when no other agreements have been made. The law also allows you to make (individual) agreements. You can determine a reasonable period in your contract or general conditions and determine when this period begins. All in all, the complaint period can be a nuisance for creditors. Therefore, it is of great importance to issue a complaint in time!

More information

Would you like more information on the duty to complain or complaint period? Then contact one of our attorneys.