Country:

Netherlands

Court:

HR 27 April 2001, NJ 2002, 203, note JH (Oerlemans/Driessen)

Topics:

Contractual liability

Liability of the supplier

Article:

Art. 13

Facts:

A nursery had bought a fertilizer which appeared to be contaminated. It was established that the purchased fertilizer did not have the qualities the purchaser was entitled to expect on the basis of the contract (art. 7:17 BW).

Legal question:

Does the contractual liability of the supplier requires that he supplier knew or ought to have known about the contamination, more generally, about the defect of the sold product?

Decision:

It is irrelevant whether the supplier had known or ought to have known about the defect. Only in very special circumstances this could be different but the Hoge Raad did not point out what kind of special circumstances he aimed at.

Comments:

Someone who suffers damage from a defective product that he has bought himself can also hold the supplier liable, in particular if the latter did not waive his liability (succesfully). The supplier can avoid liability under the Directive by providing information about the identity of the producer (art. 3 al. 3) but this does not affect his contractual liability as a supplier. In the present case the District Court and the Court of Appeal had decided that the supplier did not provide the purchaser a copy of his general contract terms. For that reason they were not applicable to this case (art. 6:233 BW).

This case was about a kind of damage to which the PL-Directive does not apply: the defective product did not cause damage to a person or to property intended for private use or consumption (art. 9). If this would have been the case, the position of the supplier would have been different. Art. 7:24 al. 2 BW holds that if a good is sold by a professional to a consumer and the defect falls under the scope of art. 185 ff. BW, the producer is solely liable. This means that in these cases the liability for defective products in the sense of the Directive is channeled exclusively to the producer. However, the supplier is liable if he knew or ought to have known the defect, if he guaranteed the absence of the defect, or if the claims concerns material damage under the amount of € 500. Art. 7:24 al. 2 BW implies and the above mentioned case shows that a professional- buyer is better protected than a consumer-buyer. For this reason art. 7:24 al. 2 has been criticised: see Asser-Hijma, Koop en ruil, 6th ed., 2001, nr. 445; Dommering-van Rongen, 2000, p. 93-94.