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If a counterparty fails to deliver or delivers defectively, you must lodge a complaint in a timely manner. The statutory duty to complain (Article 6:89 of the Dutch Civil Code, and in the case of a sale, Article 7:23 of the Dutch Civil Code) stipulates that you must protest within a reasonable time after discovery — if you fail to do so, you lose your rights to repair, replacement, or compensation.
What is the duty to complain?
If your contractual party fails to perform as agreed, you must complain about this within a reasonable time after you discovered the defect or should reasonably have discovered it (Article 6:89 of the Dutch Civil Code; in the case of a sale, Article 7:23 of the Dutch Civil Code). The underlying principle is that the other party must be able to rely on you checking the performance in a timely manner and reporting any defects.
What happens if you complain too late?
If you complain too late, you may forfeit your rights: you will no longer be able to enforce performance, repair, replacement, dissolution, or compensation for that defect. A late protest can therefore completely undermine an otherwise legitimate claim.
What is 'reasonable time'?
There is no fixed time limit; what constitutes 'reasonable time' depends on the circumstances, such as the nature of the performance and whether an investigation was required. In case of doubt, the sooner you complain, the better. Do not wait in the hope that it will resolve itself.
File a written and clear complaint
Report the defect in writing, specifically and with proof of dispatch. Describe what is wrong and what you require. This prevents disputes regarding whether and when you complained, and preserves your rights.
Frequently Asked Questions
Should I complain if the other party doesn't deliver?
Yes. Pursuant to the duty to complain (Article 6:89 of the Dutch Civil Code), you must protest within a reasonable time, otherwise you lose your rights regarding that defect.
Within what timeframe must I file a complaint?
Within a reasonable time after discovery; there is no fixed time limit. The sooner, the safer.
What is the best way to complain?
In writing, specific, and with proof of dispatch, stating the defect and what you require.
A dispute regarding breach of contract?
Our legal experts draft a notice of complaint or default and advise on your rights. View our contract lawteam or schedule a free consultation.
