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The statutory duty to complain requires you to complain about a defect “within a reasonable time,” but what exactly constitutes this remains vague and often leads to disputes. By agreeing on a clear (expiration) period and format for complaints in your contract or general terms and conditions—for example, that complaints must be submitted in writing and within a fixed number of days—you prevent uncertainty for both parties.
Anyone entering into an agreement must honor the terms. If a party fails to do so, the other party may complain. In the case of contracts for work, the contractor must deliver sound workmanship; otherwise, the client may complain and, for example, demand rectification. If the client complains immediately, the fault is clear and there is often a simple solution. If complaints only arise months later, unpleasant disputes ensue — which you can prevent with a contractual complaint procedure.
The statutory duty to complain is vague
There is a statutory duty to complain: you must complain if you believe that the other party failed to fulfill their obligations, and this must be done in a timely manner — within a reasonable time after discovery of the defect or after you could have discovered it. If you complain too late, your rights lapse and you can no longer demand redress.
The problem: “within a reasonable time” is formulated broadly, and case law offers little guidance either. In doing so, the legislator grants the judge the freedom to take all circumstances into account. Long time limits are not uncommon in the construction industry, because investigations by independent experts take time; if there is clarity regarding a defect sooner, a complaint must be filed sooner.
A contractual complaint period provides clarity
Because the statutory duty to complain offers little certainty, you can deviate from it — in the contract or the general terms and conditions. You can agree on a clear limitation period and limit or extend the statutory complaint period. You can also stipulate that complaints must always be submitted in writing, which prevents disputes regarding reports made by telephone.
Pay attention to good phrasing
When drafting your agreement or general terms and conditions, you should consider the duty to complain. Important questions: when does the time limit begin to run, and when is a complaint deemed to have been made — upon dispatch or upon receipt? Good terms and conditions provide clarity on this.
Frequently Asked Questions
How long do I have to complain about a defect?
Legally “within a reasonable time” after discovery, but that period is not clearly defined and depends on the circumstances. A contractual period provides more certainty.
Am I allowed to include the complaint period in my terms and conditions?
Yes. You can agree on a clear limitation period and limit or extend the statutory period, and, for example, require that complaints be submitted in writing.
What if a customer complains too late?
If the customer fails to complain in a timely manner, his rights may lapse and he can no longer enforce repair or other remedy. A clear time limit makes this clear in advance.
Establishing a comprehensive complaints procedure
The legal experts at MKB Juristen establish a clear duty to complain and limitation period in your contract or terms and conditions. View our expertise in contract law or schedule a no-obligation intake meeting .
