Rechtsleer

Consumer Sales and Guarantees Directive, Article 5, 2. Consumer Sales and Guarantees Directive, Article 5, 2. Consumer Sales and Guarantees Directive, Article 5, 2. Consumer Sales and Guarantees Directive, Article 7, 1. Consumer Sales and Guarantees Directive, Article 7, 1.

“Le délai de prescription de l’action de l’acheteur en cas de défaut de conformité d’un bien de consommation acquis d’occasion : un arrêt de cassation très court qui va trop loin?."

In a judgement of 6 March 2020, the Belgian Court of Cassation ruled that when a guarantee period for second-hand goods lasts less than two years, the right of a consumer to claim a remedy cannot expire before a limitation period of two years after delivery of those goods and is, moreover, suspended during the time necessary to repair or replace these goods or during the time of negotiations between the consumer and the seller to reach an amicable settlement. This follows from a combined reading of the guarantee period of one year for second-hand goods and the period of one year for the consumer to inform the seller of a lack of conformity of the delivered goods (see Article 1649quater of the Civil Code, implementing Articles 7(1) and 5(2) of the Consumer Sales and Guarantees Directive respectively). The author rightly points out that the suspension during reparation or replacement or settlement negotiations applies only to the guarantee period in the Belgian implementation, but not to the limitation period as the Belgian legislator never used this option mentioned in recital 18 of the Consumer Sales and Guarantees Directive. The author is therefore critical of the judgement because this might lead to very long limitation periods in practice, extending well beyond two years, and because the Court of Cassation acted as a legislator rather than an interpreter of the law. Yet, the author argues that the Belgian legislator should, in view of the implementation in 2022 of the new Consumer Goods Directive, rectify this situation created by the Supreme Court and provide a clear and equitable suspension regime for limitation periods regarding the sale of consumer goods.