Liability for consumer purchases

What is a consumer purchase?

Consumer purchase (consumentenkoop) is a legal term for a specific type of purchase agreement between a private buyer on the one hand and a professional seller on the other. This is the first condition for a consumer purchase: the buyer is a private individual acting for private purposes (so not for a profession or a business), and the seller is a business seller who does act for professional purposes. A consumer who buys a new fridge for their own use in an electronics shop, for example, is acting as a private individual. However, if the same person buys a fridge for use in a restaurant or café, the transaction does not fall under consumer purchase law. Buying a second-hand fridge from another private individual is not a consumer purchase either.

However, this is not the only condition. It must also concern a movable item. This means a tangible object that is not permanently attached to the land. Examples of movable items are a fridge, a laptop, a car or a book. A house, an apartment or building land therefore does not fall under consumer purchase. Pets, on the other hand, can fall under consumer purchase. Although animals have a will of their own, they are counted as movable items. Services, such as cleaning services or removal services, are not items and therefore do not fall under consumer purchase. It also makes no difference whether the movable items are new or second-hand. Nor does it matter whether the purchase agreement was concluded verbally, in writing, in person or online.

Stricter rules for consumer purchases

Much stricter legal rules apply to a consumer purchase than to other forms of purchase. This is of course no coincidence. The legislator recognises that in practice consumers are often the weaker party and professional sellers the stronger party. Consumers usually have less knowledge of the products, fewer ways to check products and less room to negotiate. This is certainly the case with an online purchase: you cannot even physically inspect the product before it is delivered.

To compensate somewhat for this imbalance of power, the law imposes extra obligations on sellers and gives consumers additional rights. A good example of this is the so-called reversed burden of proof. These extra protective measures often also make it easier for consumers to obtain their rights without having to start complex or costly legal proceedings. This restores the balance between buyer and seller, without losing sight of the interests of honest traders.

Consumer rights in a consumer purchase

The consumer enjoys a wide range of legal rights intended to provide extra protection. These rights apply automatically as soon as there is a consumer purchase, regardless of whether the agreement was concluded in writing or verbally. The law determines, among other things, that the seller must deliver what was agreed and that the product must have the properties the consumer may expect on the basis of the agreement. If a product does not meet these expectations, the consumer can claim repair or replacement. In addition, there are specific rights that give the consumer extra protection:

• Legal guarantee**:** The consumer is entitled to a sound product that lasts a reasonable time.
• Repair or replacement**:** If a product is defective, the seller must repair or replace it free of charge.
• Termination of the agreement**:** If repair or replacement is not possible or does not take place within a reasonable period, the consumer may terminate the agreement and reclaim the purchase price.
• Reversed burden of proof**:** If a product breaks down within twelve months, it is presumed that the defect was already present at delivery.
• Seller's duty to inform**:** The seller must inform the consumer fully and correctly about the product.

Extra rights for distance purchases

With a distance purchase, such as an online purchase or a telephone order, the consumer is entitled to extra protection on top of the protective provisions set out above. This is because, with this type of agreement, the consumer has no physical opportunity to view and inspect the product beforehand. The risk of online fraud is therefore high. That is why the seller is obliged to give clear and complete information before the agreement is concluded about, among other things, the product, the price, the shipping costs and the method of payment. One of the most important extra rights is the so-called cooling-off period of 14 days after receipt of the product. Within this period, the consumer may cancel the purchase without giving reasons. Any costs for returning the product are only for the consumer's account if this was explicitly stated in advance. If the seller does not meet their information obligations, the cooling-off period is automatically extended. In addition, it has recently been laid down in law that the use of fake reviews is prohibited. These rules are intended to strengthen consumer confidence in online and telephone purchases.

European and Dutch rules for consumer purchases

Within the European Union, consumer purchases are largely governed by European directives that the member states have transposed into their national legislation. As a result, consumer rights in the Netherlands are very similar to those in other EU countries. Think, for example, of the right to clear information before the purchase, the right of withdrawal for distance sales and the right to a sound product. This harmonisation makes it safer for consumers to make purchases in other member states, for example through foreign webshops.

Even so, there are also small differences between countries, because the European directives often lay down minimum standards. Member states may then set additional rules themselves or shape provisions differently. In the Netherlands, for example, a consumer purchase comes with a legal guarantee without a fixed term. In the Netherlands, the product must be sound 'for a reasonable period'. What is reasonable differs from case to case. In Belgium, on the other hand, the law states that consumers are entitled to a two-year guarantee, with a presumption of non-conformity applying during the full two years (Article 1649quater § 4 of the former Belgian Civil Code (oud Burgerlijk Wetboek), as amended in 2022). As a result, the guarantee period in Belgium can be shorter or longer than in the Netherlands, depending on what is considered reasonable in the Netherlands. Such subtle differences arise because the directive leaves room for national interpretation, as long as the level of consumer protection is guaranteed.

Consumer purchases and liability

A consumer purchase is a special type of purchase agreement in which a private buyer does business with a professional seller. Because of the unequal position of the two parties, the consumer enjoys extensive legal protection in these transactions. This protection shows above all in questions of liability, particularly when a product is defective, is delivered in poor condition or causes damage.

Liability for a defective or faulty product

If a product turns out to be defective after purchase, Dutch law gives the consumer clear rights. The legislator imposes a number of obligations on the professional seller. In principle, the seller is responsible for delivering a product that meets the reasonable expectations the consumer may have of it. If the product has defects, the consumer is entitled to free repair or replacement (see above). However, if this does not succeed within a reasonable period or without serious inconvenience, the consumer may terminate the agreement and reclaim the purchase price. There is no fixed guarantee period here; instead, a product must 'reasonably' last a certain time. For the first twelve months, the burden of proof lies with the seller: during that period, it is assumed that the defect was already present at delivery, unless the contrary is proven. After those twelve months, the consumer must show themselves that the defect was not caused by their own actions.

Liability for manufacturing defects causing injury or damage

When a consumer is injured or suffers material damage as a result of a defective product, the producer can be held liable on the basis of product liability. In the Netherlands, this liability is governed by Section 6.3.3 of the Dutch Civil Code (Burgerlijk Wetboek, BW) and is based on a European directive. This specifically concerns damage caused by a so-called manufacturing defect. This means a defect that makes the product unsafe, for example an exploding battery in an electric scooter or a loose part in a car.

The injured consumer does not have to prove that the producer made a mistake. It is sufficient to show that the product was defective, that damage occurred and that there is a causal link between the two. In this case, liability does not lie with the seller, but with the producer or importer. The claim against the producer becomes time-barred three years after the day on which the injured party became aware, or should have become aware, of the damage, the defect and the identity of the producer (Article 6:191(1) BW). In addition, the right to compensation lapses ten years after the producer put the product into circulation (Article 6:191(2) BW; see also limitation period). For damage to other property, a threshold (franchise) of €500 currently still applies (Article 6:190(1)(b) BW). For products placed on the market after 9 December 2026, Directive (EU) 2024/2853 applies; that directive no longer has such a threshold (Article 2(1) and Article 6 of the directive).

Liability and errors in the delivery of the product

With errors or damage that occur during the delivery of a product, responsibility in principle lies with the seller and not with the consumer. Under Dutch law, the seller remains responsible until the product is actually in the buyer's possession. This means that if a parcel is damaged during transport, gets lost or is delivered incorrectly, the consumer is entitled to a new product or a refund of the purchase price. In that case, the seller may not rely on mistakes by the postal or courier service they work with, because this falls under the seller's responsibility. In short: the seller should simply work with a reliable postal or courier service and cannot hide behind it.

The seller can, in turn, try to recover the damage from the carrier, but that is an internal matter between these parties. The seller will then rely on contractual liability. However, it is not unusual for the postal or courier service to limit its own liability by contract, making it difficult for the seller to obtain compensation. For consumers, however, it makes no difference which delivery service the seller works with and what they have agreed: responsibility for correct and safe delivery lies entirely with the seller. Only when the consumer chooses a carrier themselves that was not offered by the seller does the above not apply, and the consumer bears responsibility themselves.