Dutch consumer contract law rests on a simple idea: a consumer contracting with a trader is presumed to be the weaker party, and the rules that protect that party are mandatory. A clause that departs from them to the consumer’s detriment can be set aside, whatever the consumer signed.
Information before the contract
A trader must give the consumer defined information before a contract is concluded: the identity of the trader, the main characteristics of the goods or services, the total price including taxes and unavoidable charges, the arrangements for payment and delivery, the duration and the conditions for termination, and where it applies the right of withdrawal with its conditions and time limits.
For distance and off-premises contracts these duties are more extensive, and the information must be confirmed on a durable medium. Failing to inform the consumer about the right of withdrawal extends the withdrawal period substantially – from fourteen days to twelve months and fourteen days – which is the most expensive information failure in Dutch consumer law.
The right of withdrawal
A consumer who buys at a distance or away from business premises may withdraw within fourteen days without giving reasons. Exceptions are defined and narrow: goods made to the consumer’s specification, sealed goods unsealed for hygiene reasons, and services fully performed with the consumer’s prior express consent among them.
On withdrawal the trader must refund everything received, including the standard delivery cost, within fourteen days. The consumer bears the cost of returning the goods only if the trader informed them of that in advance.
Conformity: the product must be what was promised
Goods must conform to the contract – possess the qualities the buyer could reasonably expect given the nature of the goods and the statements made about them. If they do not, the consumer can require repair or replacement, and where that is impossible or disproportionate, a price reduction or dissolution.
Two points are routinely misstated by sellers. The counterparty is the seller, not the manufacturer: a commercial guarantee from a manufacturer sits alongside the statutory rights and cannot replace them. And there is no fixed period after which the statutory rights lapse; what matters is what could reasonably be expected of the product, so a washing machine that fails after three years may well be non-conforming.
Unfair terms
General conditions used against consumers are tested against two lists. Clauses on the black list are always unreasonably onerous; those on the grey list are presumed to be unless the trader shows otherwise. Both can be annulled by the consumer, and a court is required to test terms in consumer contracts of its own motion, even where the consumer does not raise the point.
Enforcement
Individual claims go to the subdistrict court, where no lawyer is required. Alongside that, the Authority for Consumers and Markets supervises compliance and can fine traders, and collective actions are available for large groups of consumers affected by the same conduct.
Advice
We advise consumers whose rights are being refused, and traders on contract terms, information duties and regulatory correspondence. Please contact Law & More.
