Example
First, we look at an example:
Mr. A (consumer) decides in 2021 to insulate his attic and goes to a hardware store to do so. There his eyes fall on PIR insulation boards. The product description reads as follows: "The core of the board is made of PIR foam, a hard plastic known for its high insulation value. Thanks to the gas-tight aluminum layers on both sides of the insulation board, no additional vapor barrier is required. In short: with these PIR insulation boards, you won't get cold in your home." The fact that no additional vapor barrier is needed and the high insulation value convince A. So he buys the boards to insulate his attic.
In mid-2024, A discovers mold in the attic. Further investigation reveals that the insulation boards are damp inside. A is surprised; he had specifically chosen these boards because they were vapor tight and an additional vapor barrier would not be necessary.
A returns to the hardware store with his complaint. Now, after three years, should the hardware store offer some form of warranty?
The non-conformity rule
When a product is defective, "warranty" is often invoked. This usually refers to the contractual warranty that a hardware store or manufacturer offers on the product, often with a fixed duration of, say, two years. After this period, it is often thought that no warranty applies to the purchased product. This is only partially true: the contractual (or: additional) warranty does indeed lapse, but in addition there is also a legal "conformity regulation" (popularly called: the "legal warranty").
This regulation is actually not a warranty, but an explanation of the requirements that the purchased product must meet according to the agreement. If a product does not meet these requirements, we speak of a defect.
Under nonconformity law, a delivered product, in this case the insulation boards, must comply with the agreement. The law states that the insulation boards do not comply with the agreement if they "do not possess the properties that the buyer was entitled to expect based on the agreement. These expectations are determined, among other things, by the nature of the product and the information provided by the seller.
In this particular situation, this means that A can expect the insulation boards to be vapor-tight and have a high insulation value. If the product does not meet these requirements, then in principle there is a deficiency.
Burden of proof of defects
When a consumer knocks on the door of the hardware store complaining about a product that does not have the expected features, the first question in a discussion is: who is responsible for providing proof that the product does not comply?
For consumers in that case, there is a two-tier arrangement.
- If the problem occurs within one year of purchase, the consumer enjoys a presumption of proof. This implies a presumption that the product was already defective at the time of purchase. In other words, that there is non-conformity. In this case, the hardware store cannot simply claim that there is no defect, it will have to refute this well-substantiated.
- If the problem does not manifest itself until after one year, this presumption of proof does not apply. The consumer then bears the full burden of proving that the product is defective.
In the example situation described above, this means that A must allege and, if contested, prove that the insulation material was already defective at the time of purchase. This is the case, for example, if there is a manufacturing defect.
There is non-conformity, then what?
Suppose A can prove that the insulation boards are defective due to a manufacturing defect. What then are the obligations of the hardware store?
The law states that consumers are entitled to repair or replacement of the product and compensation for damages. This means that the hardware store must not only replace the insulation boards, but can also be sued for additional costs, such as the cost of removing the defective insulation boards and installing the new insulation boards.
If the hardware store refuses to cooperate, the consumer can rescind the agreement. This means that the consumer must return the insulation boards and the hardware store must refund the purchase price. In addition, the hardware store is liable for any damages suffered by the consumer, such as the cost of removing the old boards and installing new boards.
Referring to the producer, is it possible?
The hardware store cannot simply shift responsibility to the manufacturer, even if the defects are the result of a manufacturing defect. By law, the selling party is the point of contact for the non-conformity of the product, regardless of whether the seller knew about the defect. The consumer has an agreement with the hardware store and is entitled to a product that complies with this agreement. The relationship between the hardware store and the manufacturer is irrelevant to the consumer.
Solution case
A can (most likely) invoke the non-conformity rule. Since three years have elapsed since the purchase, the burden of proof of non-conformity lies with A. If he can prove that the insulation boards are defective, e.g. due to a manufacturing defect, the construction market must replace the boards and reimburse the associated costs. If the construction market refuses to do so, A can (among other things) rescind the agreement and claim damages.
Opinion
Engage (as a hardware store operator) with the customer and carefully evaluate each individual complaint. Do not simply dismiss liability, but give well-reasoned reasons if you believe there is no defect. Inquire about how a product has been processed (and assess whether this is correct). Also ask whether maintenance (if any) has been performed.
By handling complaints carefully, lengthy and costly disputes can be avoided and the relationship with the customer remains good.
