On Friday the 23rd of April, Sasha Tamboer will defend her thesis entitled, 'The notification duty in sales law; A plea to reduce the scope of application in light of the pacta sunt servanda principle'
|Date||23 April 2021|
Prof. dr M.B.M Loos and dr. drs. G.J.P. de Vries
The regulation of contracts for sale in the new Dutch Civil Code (Burgerlijk Wetboek, hereafter BW) of 1992 adopted an explicit rule on the so-called notification duty on the part of the buyer. Article 7:23 sub 1 BW contains the obligation for all buyers to give notice to the seller within reasonable time of any defect (or suspicion thereof) in the delivered goods. Buyers who fail to meet this obligation to notify the seller will be confronted with the general loss of all of their rights related to claims based on non-conformity. The consequences of not meeting the notification duty are therefore particularly serious. According to both the Dutch legislator and the Supreme Court this implies the buyer’s inability to claim specific performance, compensation or termination, in addition to the buyer losing all rights to invoke mistake, fraud or tort when said claim or right can actually be based on noncompliance of the goods delivered.
In principle, parties to a (sales) contract have the obligation to honour an agreement: pacta sunt servanda. This fundamental principle of contract law contains the idea that one should do as promised, and that the other party can rely on receiving what has been agreed upon. The notification duty of Article 7:23 sub 1 BW is an exception to this principle of the binding force of a contract: the buyer’s failure to meet the notification duty releases the seller from the obligation to perform as agreed upon. The rationale of this exception is, according to the Dutch legislature, to protect the seller against tardy, and thus difficult to contest, complaints. However, the parliamentary documents concerning the buyer’s notification duty do not offer any explanation of why such a radical protection of the seller, with concomitant breach of contract, is justified.
The doctrine in Dutch law on the notification duty on the buyer’s side was developed in the context of commercial sales law. It is considered to be a codification of the unwritten doctrine of ‘rechtsverwerking’ (Rechtsverwirkung or estoppel). The current notification duty as adopted in the current BW, ties in with Articles 38 and 39 of the Vienna Sales Convention that, in turn, are based on German commercial sales law where the buyer’s notification duty can be found in § 377 Handelsgesetzbuch (hereafter: HGB). Both German law and the Vienna Sales Convention position the buyer’s notification duty in a strictly commercial sales law setting. The codification of the notification duty in the 1992 Civil Code in the Netherlands has considerably expanded the scope of application of the notification duty on the buyer’s side in comparison with both the old (non-codified) rule as well as with the Vienna Sales Convention and German law: it is even applied outside the scope of commercial sales. Considering a solid justification for this expansion of the scope seems to be lacking, in the current dissertation I will ask whether the legislator’s desired protection of the seller against late (or belated) complaints on non-conformity will justify this expanded scope of application.
The extended summary is available in Dutch and English below.
This event will be livestreamed and is open for all to follow via the link shared below.