Case law

  • Case Details
    • National ID: 2006/930
    • Member State: Netherlands
    • Common Name:link
    • Decision type: Other
    • Decision date: 06/11/2007
    • Court: Gerechtshof (Appellate court, Arnhem)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Consumer Sales and Guarantees Directive, Article 1, 1.
  • Headnote
    By determining that a party did not act in its professional capacity following was taken into account: breeding of dogs should be more than incidental if a kennel is to be seen as a professional seller of dogs; the small number of dogs born per year in a kennel indicates that breeding was incidental.
  • Facts
    Consumer bought on the 24th of September 2004 a 10 week old Great Dane puppy from the seller. Shortly after the purchase took place the pup got ill. On the 5th of January 2005 the pup was diagnosed with a chronic kidney failure and upon an advice of a vet euthanized a day later. On the 1st of July 2005 the consumer started proceedings demanding termination of the consumer sale contract on the ground of non-conformity and claimed compensation for damage. The seller questioned the consumer character of the concluded sale contract, claiming that he did not act the course of his business while selling the pup.
  • Legal issue
    The court took into account that pursuant to art. 7:5BW implementing art. 1 of the Directive the consumer sale takes place only if the seller acted in the course of his trade, business or profession. There is no indication given by the legislators how this definition of a professional seller should further be interpreted. The court stated that the professionalism of the seller will have to be examined on a case by case basis. Declarations made by the parties and their understanding of each other’s role could be decisive in determining it. It is the consumer that has a burden of proof that the seller acted in professional capacity, since it is the consumer that wants to make use of the protection of consumer sale provisions. The seller has no business registered. The court decided upon the presented facts that the seller could not be considered as acting in the course of his trade or business. Namely, even though the seller was breeding dogs he had a very small amount of pups born per year. He did not conduct any other business activities, e.g., sheltering dogs. The sole fact that the seller had a kennel name could not signify that he acted in a course of trade, since kennel name is not equal to a trade name and may be adopted even by owners of one dog who had puppies only once. Also the fact that the seller advertised a sale of Great Dane’s pups in a kennel club magazine should not be seen as a sign of conducting professional activity, since the magazine is read mostly by hobbyists.
  • Decision

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