Rechtspraak

Consumer Sales and Guarantees Directive, Article 2 Consumer Sales and Guarantees Directive, Article 3, 2.

(1) A seller, as defined under article 1(2)(c) of the Directive 1999/44 (implemented into Belgian law by article 1649bis, §2, 2° of the Civil Code) refers to every natural or legal person who sustainably engages in economic activity, excluding any person who does not act in a professional capacity.

(2) Someone who breeds animals as a hobby is not a 'seller' under Article 1(2)(c) Directive 1999/44 (implemented into Belgian law by article 1649bis, §2, 2° of the Civil Code).

The case concerned the purchase of a dog by the defendants from the plaintiff. Shortly after the dog was delivered to the defendants, it died.

The defendants made a claim against the plaintiff on the grounds of the dog having been afflicted with a hidden defect. As a result of this claim, and based on the principle stipulated in article 3(2) of Directive 1999/44 (implemented into Belgian law by article 1649quinquies of the Civil Code) that where a good is afflicted with a hidden defect, the consumer is entitled to reparation, the cantonal court of Lokeren held that a dog which plaintiff sold to the defendant, and which died shortly after it was delivered to defendant, was afflicted with a hidden defect and that plaintiff was thereby due compensation to defendant.

1) To which persons does the notion "seller", as defined in Article 1(2)(c) Directive 1999/44 (implemented into Belgian law by article 1649bis, §2, 2° of the Civil Code) refer and who is excluded from its scope of application?

(2) Should someone who breeds animals as a hobby be considered a "seller" under article 1(2)(c) Directive 1999/44?

The court set aside the judgment of the cantonal court by stating that the rules on consumer protection regarding sale of consumer goods are only applicable in sales emanating from a seller to a consumer. The court found that plaintiff did not fall within the definition of 'seller'.

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The court set aside the judgment of the cantonal court and referred to the cantonal court of Sint-Niklaas.