Consumer Law: the right to repair for consumer purchases
In today’s society many goods are bought by consumers, which is accompanied by a significant increase in consumer waste. Consumer law and the right to repair could play an important role in countering this. With the possibility of repair, the chance is considerably greater that the previously defective product will be given a second chance and therefore not end up prematurely in a landfill. Moreover, repair contributes more to the circular economy than recycling. This article discusses how the right to repair in consumer purchases, in the context of sustainability, has been shaped under Dutch law and European regulations.
Based on art. 7:21 paragraph 1 BW, the buyer has the right to repair of the delivered good in case of non-conformity. This right, together with delivery of the missing item and replacement of the item delivered, is a primary remedy. This means that the consumer can always rely on this if the good does not conform with the agreement. Costs of repair and any additional costs, such as transport costs, will then be borne by the seller.
Nevertheless, there is an important exception to this right in paragraph 4, namely: the consumer is only not entitled to a recovery claim if recovery is impossible or cannot be expected of the seller. This is further elaborated in the next paragraph, from which it appears that under certain circumstances it cannot be expected from the seller from a economic point of view to repair the item. This is the case if the costs of repair are disproportionate to the costs of exercising another remedy or claim of the consumer. A balancing of interests therefore plays a role in this.
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A role for sustainability in the balancing of interests
Based on the above exception, it can therefore be deduced that under Dutch consumer law there is no hierarchy between the primary remedies and that replacement may even be preferred over repair. The test on which this is based, also called the relative proportionality test, mainly looks at the financial aspects and not at a solution that contributes to a sustainable society. The conditions set by law are:
Consequences for consumer and seller
These legal requirements do not make the right to repair an attractive right for the consumer, since the aforementioned balancing of interests often makes it difficult for the consumer to have the product repaired free of charge at the seller. This means that he or she will sooner go for another remedy, such as replacement. In addition, even though free repair is possible, under current law this is a less attractive remedy because the purchaser is also not legally entitled to a swift repair or a replacement product during the repair. In addition, the seller is not incentivized by this provision to choose for easily repairable products. This is because replacement causes less inconvenience and is often legally justified.
Also important are the possibilities of warranty. There is no legal guarantee for products under the Dutch legal system. However, there is a presumption of proof in favour of the consumer if a product is non-compliant within 6 months (Article 7:18 paragraph 2 BW). In that case, the seller must prove that the defect is the buyer’s fault, for example because he did not use the item normally. In addition, the seller can offer a commercial guarantee, which applies in addition to the legal guarantee (and may not infringe statutory consumer rights). Nevertheless, such a (longer) warranty period does not immediately promote durability. This is because a commercial guarantee can have both durable (e.g., an extension and extension of the legal right to rectification) and non-durable (e.g., a right to replacement) consequences.
On the basis of the above, it can therefore be concluded that Dutch consumer law and sustainability do not always go hand in hand. Although the consumer has a right to redress vis-à-vis the seller, this does not always result in a free repair due to the relative proportionality test, which mainly takes into account economic aspects. This makes it plausible that in practice replacement is more often chosen as a remedy. Also, for the seller it is often justified by this test to replace the non-compliant item. A possible guarantee from the seller could contribute to durability, but this depends entirely on the conditions applied.
Would you like to know more about the possibilities of the right to repair under consumer law? For example, are you a consumer who would like to have a product repaired free of charge or a seller who wants to draw up sustainable warranty conditions? If so, you can contact Law & More. Our lawyers specialize in consumer law and sustainability and are happy to help you.
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