Buyer’s obligation to investigate
Does the bought item conform to the agreement?
In case of a purchase agreement, the bought item must confirm to the agreement. This means that the sold item must have the characteristics that the buyer may expect on the basis of the agreement. In any case, the item must have the characteristics that are required for normal use and the presence of which the buyer should not have to doubt. If this is not the case, there is non-conformity.
Non-conformity: delivered item does not conform to the agreement
In the event of non-conformity, the buyer may require the seller to repair the delivered item or supply another sound item. If this is not possible, the buyer may terminate the agreement and will be entitled to a refund of the purchase price already paid.
Violation of the buyer’s obligation to investigate
However, a buyer is not entitled to rely on non-conformity if he has failed to meet his own obligation to investigate. A buyer will not be able to complain about a hidden defect of the delivered item if he has not investigated it to a reasonable extent. This is not only about what the buyer actually expected, but also about what he could have expected, taking into account all circumstances.
Asking questions to the seller in case of doubt
The buyer may not only expect those characteristics of which he does not have to doubt the presence. If he is or should be in doubt about something, he should ask questions to the seller or investigate the matter himself. Sometimes the obligation to investigate means that the buyer will have to engage an expert. Here you can think of, for example, a structural investigation assigned by the buyer when buying a home.
Reinforced obligation to investigate for second-hand items
Whether and to what extent the buyer has an obligation to investigate depends on the circumstances. For example, a buyer’s obligation to investigate will be significantly greater when buying a second-hand car than when buying a new car. A second-hand car is and may not be expected to meet the same requirements as a new car.
Seller’s obligation to notify prevails
Of course, the buyer may rely to a certain extent on the information provided by the seller. When the seller provides information about a characteristic of the purchased item, the buyer will in principle no longer be obliged to investigate this himself. The same applies to guarantees given by the seller. The seller’s obligation to notify prevails over the buyer’s obligation to investigate. A seller is obliged to inform a buyer if he knows that the purchased item is not suitable to the use intended by the buyer. If the seller violates his obligation to notify, he will generally speaking not be able to argue against the buyer that the latter has not made sufficient investigations.
In addition, a professional buyer has a greater obligation to investigate than a private buyer. Even if it concerns agreements other than purchase agreements, the contracting parties may have an obligation to investigate. In case of an agreement for services, certain clients such as banks and civil-law notaries may be obliged to conduct an investigation into (the accuracy of) information provided by their non-professional contracting parties. This obligation to investigate follows from the professional duty of care.