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Case Details

Case Details
National ID 200.079.868/01
Member State Netherlands
Common Name link
Decision type Other
Decision date 21/02/2012
Court Gerechtshof (Appellate court, Leeuwarden)
Subject
Plaintiff
Defendant
Keywords

Consumer Sales and Guarantees Directive, Article 1, 4.

A contract concluded by a consumer shall be seen as a mixed contract (contract for work and consumer sale) when it inter alia obliges the professional party to deliver consumer goods that are to be manufactured or produced. The rules of consumer sale prevail over the ones regulating performance of services.
After getting married a couple had a house built. Through an architect they mandated the defendant (a contract for work was concluded), a company building furniture and interior design, to install a kitchen in their house and to work on its interior design in 2003-2004. Not all bills had been paid by the consumers. The company waited until 2009 before starting the proceedings which meant that a shorter statue of limitation from art. 7:28BW (two years for payment of purchase price) could apply if the contract was to be considered as consumer sale contract pursuant to art. 7:5BW.
Art. 7:5 Sec. 4 BW implements art. 1 Sec. 4 of the Directive 99/44/EC and was added to the Dutch Civil Code on 6 March 2003. This provision states that in case a contract concerns delivery of consumer goods that are to be manufactured or produced it should be considered as a consumer sale contract. The court states here that the Directive requires that it should be applied to a delivery of consumer goods within a scope of any contract, even a contract for work, as in this case. Moreover, in case both rules on contract for work (or services) and on consumer sale are applicable, then the rules of consumer sale prevail over the ones regulating performance of work (or services). This means that art. 7:28BW is applicable and the claim for payment of purchase price may not be enforced anymore.
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