1. Unified Concept of Conformity
1.1 Current Sales Law
When the delivered good does not meet the buyer’s expectations, the buyer may currently bring the following claims:
- Non-conforming delivery (Article 1604, §1 Old Civil Code): The buyer may take action against the seller if the delivered good does not correspond to what was contractually promised or expected. This constitutes a breach of the obligation of conforming delivery.
- Visible defects (Article 1642 Old Civil Code): The seller is liable for visible defects that the buyer could have noticed at the time of delivery.
- Hidden defects (Article 1641 Old Civil Code): The buyer may take action if the good has a defect that was not visible at delivery, seriously impairs its use, and of which the seller is presumed to have been aware.
1.2 New Sales Law
Under the new sales law, the current provisions regarding the warranty against hidden defects, visible defects, and the obligation of conforming delivery are merged into one general obligation of conformity (Article 7.2.30 Civil Code). No distinction is made anymore between visible and hidden defects.
However, the seller is only liable for a lack of conformity that existed, at least latent, at the time of delivery (Article 7.2.30, §3 Civil Code). The burden of proof lies with the buyer (Article 7.2.31 Civil Code). The specific regime for consumer sales – a rebuttable presumption of non-conformity for any defect appearing within two years after delivery – remains in place (Article 7.2.47 Civil Code).
Furthermore, the buyer cannot invoke nullity of the sale due to error resulting from a lack of conformity (Article 7.2.35 Civil Code). This aims to prevent cumulative claims: one based on non-conforming delivery and another based on error.
Example:
Suppose someone buys a computer that, according to the contract, is suitable for heavy graphic applications, but in reality, the graphics card is too weak. The buyer could then invoke:
- Non-conforming delivery: requesting repair, replacement or price reduction because the device does not meet the agreed characteristics;
- Error: claiming that they would not have entered into the contract had they known about the weak graphics card, and therefore seeking to annul the sale.
Under the new sales law, the buyer must use the non-conformity claim in this case and may no longer annul the sale on grounds of error concerning the same defect.
2. Warranty Period
Under current law, a seller may be held liable for hidden defects without time limitation, as long as the buyer initiates a claim within a short period after discovery. This leads to uncertainty for the seller.
The new sales law limits the seller’s liability for conformity defects (which now includes hidden defects) to ten years after delivery (Article 7.2.32 Civil Code). Only defects discovered within that period may give rise to liability.
3. Notification Period
Under current law, a buyer relying on hidden defects must bring a claim within a short period (Article 1648 Old Civil Code).
The new law only imposes a duty to notify.The buyer must report the conformity defect to the seller within a reasonable time after discovery.What is reasonable depends on the nature of the good, the nature of the defect, the status of the parties, and customary practice.If the buyer fails to notify in time, they lose the right to rely on the defect (Article 7.2.33 Civil Code). In consumer sales, the notification period may not be shorter than two months (Article 7.2.51 Civil Code).
4.Limitation Period
A claim for a lack of conformity becomes time-barred two years after the buyer has notified the seller of the defect (Article 7.2.34 Civil Code).This period applies regardless of whether the relationship is B2B, B2C or C2C. The limitation period is suspended during negotiations and during judicial or adversarial expert investigations.
5. Remedies
If the seller fails to fulfill the obligation of conforming delivery, the buyer, under the new law, has the same remedies as under general contract law: replacement, repair, termination or price reduction (Article 7.2.35 referring to Article 5.83 Civil Code).
However, when repair is possible and reasonable, the buyer may not simply rescind the sale or claim a refund under the new sales law. Current case law on hidden defects does allow annulment even when repair is possible, but this will no longer be the case. If the seller refuses to proceed with repair, annulment may then serve as an alternative remedy.
