Rechtspraak

  • Bijzonderheden van de zaak
    • Nationaal ID: Court of Appeal, Arnhem-Leeuwarden, Judgement 200.287.065
    • Lidstaat: Nederland
    • Gangbare benaming:N/A
    • Soort beslissing: Rechterlijke beslissing in beroep
    • Datum beslissing: 05/04/2022
    • Gerecht: Gerechtshof Arnhem-Leeuwarden, locatie Arnhem
    • Onderwerp:
    • Eiser:
    • Verweerder:
    • Trefwoorden: lack of conformity, burden of proof
  • Richtlijnartikelen
    Consumer Sales and Guarantees Directive, Article 3 Consumer Sales and Guarantees Directive, Article 5, 3.
  • Koptekst

    ECLI:NL:GHARL:2022:2592


    The consumer bears the burden of proof that the second-hand car he purchased lacks conformity. The reversal of the burden of proof only applies as regards the question of whether the established lack of conformity already existed at the moment of delivery. In this case, however, the mere fact that the car’s injectors broke down is not sufficient to establish a lack of conformity given the fact that injectors are wear parts (for which no maintenance instructions apply) and that these may break down at any moment after the purchase of a car with an odometer reading of 102,596 km. The fact that the sales price was € 39,250, that the seller had said that the car was in excellent condition, had been well maintained and that the seller had also said that the car had been inspected and serviced by a specialist, does not change the fact that the consumer was not entitled to the expectation that parts of this second-hand car that are susceptible to wear and tear were not already in a process of wear and tear at the time of delivery.

  • Feiten

    A consumer purchased a used 2014 Jaguar F-type from the seller for a price of €39,250. At the time of the conclusion of the sales contract on 21 October 2019, this car had an odometer reading of 102,596 km. A three-month warranty was given by the seller. After the purchase, the consumer drove approximately 6,000 km with the car. On 13 February 2020 (i.e., after the three-month warranty period but within six months of delivery) one of the petrol injectors broke down while driving the car. The seller had two injectors (another had broken off during the inspection) replaced by a car company at his expense. The Court of First Instance dismissed the consumer’s claims based on a lack of conformity.

  • Juridische kwestie

    Is the second-hand car defective if parts that are susceptible to ordinary tear and wear break down within six months after delivery?

  • Uitspraak

    The consumer argued that the Court of First Instance was wrong in considering that the malfunctioning injector continued to spray petrol into the engine, which did not burn up in the cylinder but ended up in the oil sump, causing damage to the car's engine. According to the consumer, an expert report shows that no damage occurred to the engine. Also, according to the consumer, there has been no mixing of petrol in the oil sump. In view of this position, the Court of Appeal does not understand on what the consumer bases his claim for compliance, in which he assumes the installation of a new engine. He does not explain why the engine should be replaced if it has no damage. The Court of Appeal further notes that the consumer has not raised a complaint against the judgement of the Court of First Instance’s finding that the consumer does not (explicitly) demand that the seller also repairs other things other than the engine damage and that in view thereof the Court of First Instance may leave open the question of whether the car is in conformity with the contract in view of the other defects mentioned. In addition, the consumer stated at the hearing of the Court of Appeal that the car is now in order and drives well. In view of all the above, the consumer’s claim for repair cannot be awarded.

    The consumer further demanded damages due to the inability to use the car, reduction in value and suspension of the vehicle registration. This claim is based on the non-conformity of the car, which consists of the injector becoming defective. The Court of Appeal considered that there is a question of non-conformity if the car (at the time of delivery) does not have the characteristics that the consumer could expect in view of all the circumstances, including the nature of the goods and the statements made by the seller; the consumer could in any case expect that the car was suitable for normal use (art. 7:17 (1) of the Dutch Civil Code (BW)). The Court of Appeal is of the opinion that the consumer has insufficiently substantiated his reliance on non-conformity against the reasoned defence of the seller that injectors are wear parts (for which no maintenance instructions apply) and that these may break down at any moment after the purchase of a car with an odometer reading of 102,596 km. The reliance of the consumer on art. 7:18 (2) BW does not suffice to refute this defence. First it must be established that the car does not comply with the contract. If this is the case within six months of delivery, it is assumed that this was already the case at the time of delivery, unless the seller can prove otherwise. In this respect, the consumer pointed out that the car had a selling price of € 39,250, that the seller had said that the car was in excellent condition, had been well maintained and that the seller had also said that the car had been inspected and serviced by a specialist. However, in the opinion of the Court of Appeal, the consumer was not entitled to the expectation that parts of this second-hand car that are susceptible to wear and tear were not already in a process of wear and tear at the time of delivery, on these statements alone. This applies in particular to parts where the wear and tear is not visually perceptible upon inspection. It was undisputedly argued by the seller that this is the case for injectors. The consumer took the position that the seller should have proceeded to dismantle the injectors prior to the purchase. According to the seller, he knew that there was a ‘design fault’ in the sense that the engine part in which the injectors are located is placed under the ventilation openings, as a result of which the chance of moisture penetration and rust formation is greater than in other cars. In any case, the seller should have warned about this, according to the consumer. In the opinion of the Court of Appeal, this reproach goes too far and leans heavily on a colouring of the facts afterwards. The mere fact that as an explanation for the rust formation the idea arose (and was expressed) that an injector in this car might rust sooner than in another car because of the position of the engine part concerned, does not mean in the first place that this was really the cause, but also does not mean that the seller should have been aware of this already at the time of the purchase and that this should have been a reason to investigate this or to warn about it. The consumer has not substantiated that and why this should be assumed, for instance because cars of this type are notorious for quickly rusting injectors.

    URL: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHARL:2022:2592

    Integrale tekst: Integrale tekst

  • Verwante zaken

    Geen resultaten

  • Rechtsleer

    Geen resultaten

  • Resultaat

    The Court of First Instance’s judgement is upheld; the consumer’s claims are dismissed.