Consumer Sales and Guarantees Directive, Article 5, 3.

The special Danish intermediary rule was used to establish that a contract between two private parties was to be regarded a consumer contract. Thus, consumer law could be applied to the contract. The contract regarded a purchase of a boat. The consumer (the buyer) claimed that there was a lack of conformity which was confirmed by the court. Because the seller could not prove that the lack of conformity was not present at the time of delivery, the consumer could claim compensation for the costs and money spent to repair the boat.

Two private parties enter into a contract through an intermediary regarding the sale of a boat. Thus, the sale is a consumer sale. Some of the things on the boat do not work as the consumer (buyer) expected and he has some of them repaired as the seller refuses to do so. The court case is about whether the consumer can claim compensation from the seller.

Is the contract a consumer contract? Can the seller prove that the boat didn’t have a lack of conformity at the time of delivery?

The Court of Appeal rules that the contract is a consumer contract according to the Danish intermediary rule stating that a contract between two private parties is regarded as a consumer contract if the intermediary acts in an active way in the contracting (e.g. the intermediary standard terms, payment to the intermediary etc.). The intermediary in this case drew up the contract, showed the boat, negotiated the price etc. The Court of Appeal also rules that the presumption rule applies which places the burden of proof on the seller regarding whether the lack of conformity was present at the time of delivery. The seller could not exempt himself of this burden.

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The Court of Appeal upheld the First Instance Court’s judgement that supported the claim of the consumer. Through this judgement, the court shows the use of the special Danish intermediary rule and some of the elements that go into evaluating whether an intermediary is active. Also, through this judgement, the court shows the use of the presumption rule. However, not much evidence was put forward, so the ruling does not say so much about when this burden of proof is lifted.