Do you sell products or digital services to consumers? You must make sure these products are of good quality. In the Netherlands, anyone buying a product is legally entitled to a sound product. This is a statutory guarantee (conformity).
When does the right to guarantee apply?
Your customer has a right to statutory guarantee if a product:
- is incomplete
- is damaged
- breaks easily or does not work properly
- works differently then you described on sale
- has a useful life that is shorter than could be expected
- uses software that does not work anymore after a short period of time
Apart from the statutory guarantee, you can give an additional, commercial form of guarantee. As the supplier or manufacturer of a product you can give a supplier's or manufacturer's guarantee. If you decide to offer your customer an additional guarantee, you can give them a written or digital guarantee certificate. You decide the terms of this guarantee and include them in a guarantee provision in your general terms and conditions. The statutory guarantee always applies and takes precedence over the commercial guarantee.
Guarantee on digital products or services
Do you sell digital products or services, such as e-books, games, or streaming services? You must make sure the customer gets (security) updates so that the product works properly and keeps working properly. You must clearly tell the customer when they will receive an update and what happens if the customer does not install the update. You must also explain clearly (user manual) how the customer can perform the update. This also applies if you offer digital products or services in exchange for the user’s personal data.
You do not have to provide updates if you state clearly at the time of sale that no updates are included. The customer also has to have agreed to this. You can read more on the rules for guarantee on digital products and services at the Authority for Consumers and Markets’ (ACM) website (in Dutch). Or you can consult the EU regulation on which these rules are based.
Guarantee on second-hand products
Your customer also has the right to the statutory guarantee on second-hand products. A second-hand product must also do what the customer can reasonably expect it to do.
Repair, replace, or repay
If a product or digital service (or file) is defective, the purchaser is entitled to have it repaired or replaced (in Dutch). If you fail to solve the problem adequately, the customer has the right to get their money back. This also applies if the solution takes too long. Did you repair or replace the product? You may recover the costs you incur because of this from your supplier. This is called a right of recourse.
Proving the purchaser’s fault (burden of proof)
Do you think the defect is your customer’s fault? You do not have to solve the problem if you can prove this. If the product becomes defective within 12 months of the purchase, you must prove that the defect is the purchaser's fault. The burden of proof is on you. After 12 months, the purchaser must demonstrate that the defect is not their fault (the burden of proof is on the customer).
For digital products and services, the burden of proof can sometimes remain on you for a longer period. For instance for the whole period you offer the digital service.
Do you sell live animals? Then the burden of proof period is 6 months.
Customer guarantee expiration
In the Netherlands there is no fixed statutory guarantee period. Your customer must be able to use the product in a normal way for a certain period of time. You must inform your customer of the product's features. The duration of the guarantee depends on the brand, price, and useful life of the product. If the guarantee period has expired, they are still entitled to a sound product.
For digital services or files the guarantee period a consumer is entitled to, is the same as the duration of the service you agreed with the supplier.
You can decide yourself what the guarantee period for an additional supplier’s or manufacturer’s guarantee will be. You state this in the terms of the guarantee.
Selling to other businesses (B2B)
Do you sell products to other businesses? Or do you buy products from another company? For business to business (B2B) sales other conditions apply. There are for instance less rules on guarantees (in Dutch). You can include a guarantee provision in your general terms and conditions. The provisions must, however, meet the requirements of reasonableness and fairness. You must also make sure these rules are stated clearly and your customer has read these before concluding a transaction.