General Remarks

  1. Under Belgian law, a difference has to be made between the legal guarantee for consumer goods only and the common law guarantee for all goods (i.e. not only consumer goods) for hidden defects.
  2. The legal guarantee for consumer goods may not be restricted or ruled out in sales contracts with consumers.
  3. Contractual clauses limiting the seller’s liability in B2B contracts are valid as long as they do not empty the sales contract of its intended meaning.  Moreover, such provisions are only legally valid if the seller is of good faith and did not know the hidden defect on the day of the sale. Professional sellers, such as manufacturers, importers, distributors and retailers will however be deemed to be aware of the existence of any hidden defect affecting goods that they sell. Professional sellers cannot contractually exclude their liability, unless they prove the “undetectable nature” of the defect.

Material Defects

  1. A defect as to the conformity of the delivery (“défaut de déliverance conforme”) exists when the goods delivered does not comply with the contractual specifications agreed between the parties (art. 1604 of the Belgian civil code).  In the absence of contractual specifications, the quality that the good shall display may be inferred from its price or from the characteristics of the good in consideration of which the sale has been concluded.
  2. Material defects/hidden defects are defined as any defect existing prior to delivery, which is not obvious, and which makes the good unsuitable for its intended use, or which so diminish such use that the purchaser would not have bought it, or would have paid a lower price for it, if it had been aware of the defect.  The definition of material defects includes functional defects, i.e. defects which even if they do not make the good inherently/structurally defective, render the good unfit for its intended use. If the intended use has not been specified in the contract, the goods must be fit for the usual purpose and meet the quality which the purchaser can expect from goods of this type.

Legal Defects

The “garantie d’éviction/vrijwaring voor uitwinning” (i.e. guarantee of rightful title) obliges the seller, even in the absence of any warranty stipulated under the agreement, to guarantee the purchaser against partial or complete revocation of the right to use the goods sold or against alleged encumbrances on those goods which were not declared at the time of the sale. 

Rights and Remedies of Purchaser

  1. Remedy for non-conformity with delivery obligation: the Purchaser may request the rescission or the performance of the contract. The Purchaser may also can claim compensation if damages arose due to the failure to deliver.
  2. Remedy for hidden defect: In B2B contracts, the purchaser may request the rescission of the contract (return of goods and reimbursement of the purchase price) or choose to keep the goods but receive part of the price reimbursed. If the seller was aware of the defects (see legal presumption above) it will in addition be liable for all damage caused by the defective goods.

Subsequent Performance

Subsequent performance is the removal of defects (repair, provision of missing goods or provision of new goods). 

Right to Choose Subsequent Performance

  1. In the event of non-conform delivery: the purchaser may require repair or replacement of the goods at the seller’s expense, except if the repair or replacement is impossible or disproportionate.
  2. In the event of hidden defect: In B2B contracts, the purchaser may not require that the defect be remedied or goods free of defects be supplied.  In sales contracts vis-à-vis consumers, the consumer is entitled to repair or replacement of the goods at the seller’s expense, except if the repair or replacement is impossible or disproportionate.

Costs of Subsequent Performance

In B2B contracts, the purchaser may not require that the defect be remedied or goods free of defects be supplied. 

Conditions for Claims for Damages

  1. In B2B contracts, the seller is presumed by law to be aware of the existence of any hidden defects of the goods it sells, and is accordingly liable for all damages caused by the defective goods unless it proves the “undetectable nature” of the defect.
  2. The consumer is always entitled to obtain compensation for the damage sustained.

Extent of Claims for Damages/Limitation of Liability

  1. The injuring party must provide compensation for all direct and indirect losses it has caused owing to its breach of obligation.
  2. The extent of liability may not be restricted to the detriment of the consumer in contracts vis-à-vis consumers.
  3. In GTCs vis-à-vis companies, the seller may contractually limit the extent of its liability. However such provision is only legally valid if the seller is of “good faith” and did not know the hidden defect on the day of the sale. A professional seller will however be deemed “aware” of the defect and cannot limit its liability, unless it proves the undetectable nature of the defect.

Withdrawal from Sales Contract

  1. In B2B contracts, the purchaser may request the rescission of the contract or choose to keep the goods, but receive part of the price reimbursed.
  2. In sales contracts vis-à-vis consumers, the consumer is only entitled to have the contract rescinded, if repair or replacement of the goods fails, is refused or is considered unreasonable. The consumer is not entitled to have the contract rescinded if the lack of conformity is minor.

Limitation Period for Claims for Defects

  1. Limitation period for conform delivery obligation: The purchaser has 10 years as of the delivery to introduce judicial proceedings. However, the purchaser must inspect the goods without undue delay and report any detected defects to the seller without undue delay.
  2. Limitation period for hidden defect warranty: The purchaser of any goods has a guarantee for defects that existed prior to the delivery. There is no limitation period where the seller remains liable for hidden defects.  In B2B contracts, the purchaser must bring its action for hidden defects against the seller within a “brief period” after discovery of the defect. The law does not prescribe the exact length of this period, so this is determined on a case by case basis. In sales contracts vis-à-vis consumers, this period cannot be shorter than 2 months.

Purchaser’s Obligation to Inspect Goods and Report Defects in B2B Contracts

  1. The purchaser must inspect the goods without undue delay and report any detected defects to the seller without undue delay.
  2. If the purchaser breaches its obligation to inspect the goods or to report any defects, the goods will be deemed to have been accepted. Presumed acceptance does not apply if the defect could not be discovered by a normal inspection of the goods or if seller has maliciously concealed the defect.