The duty to complain means that a creditor who discovers, or ought to have discovered, a defect in performance must protest to the counterparty within a reasonable time. Failing that, all rights in respect of that defect are lost.
Legal basis
Article 6:89 of the Dutch Civil Code contains the general duty for all performance; Article 7:23 the special regime for sales, with a two-month period in consumer sales that always counts as timely. What is a reasonable time depends on the circumstances. The Supreme Court held in Ploum/Smeets and in a series of later rulings that there is no fixed period and that the court must weigh all circumstances, including the nature of the contract, the expertise of the parties, and above all the prejudice the counterparty suffers from the delay. A party relying on the duty must assert that prejudice. For latent defects the period starts on discovery, with a professional party expected to investigate sooner.
How it works in practice
Complaining is not subject to formal requirements but needs to be provable, so in writing. A good letter of complaint identifies the performance, the defect, when it was discovered and the consequences the complainant attaches to it. For complex defects a two-stage approach is sensible: first a short notification that something is wrong and that investigation will follow, then the substantiated complaint.
Where it goes wrong
Buyers wait for the survey report before complaining and are then months too late. A second error is complaining to the wrong party, for instance the installer rather than the supplier. Third, sellers invoke the duty without asserting prejudice, and the defence fails.
Related terms
The duty connects to breach of contract, the limitation period and non-conformity.
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