Update Volume 2020/20 General conditions of Metaalunie 2019
In the Dutch market we regularly receive requests to assist in disputes relating to non-conformity relating to deliveries or services. These deliveries and services are often subject to the Metaalunie general terms and conditions there are a number of general considerations we would like to bring to your attention.
When we receive a request to assist in a dispute which is subject to the Metaalunie general terms and conditions, we will firstly examine whether these general terms and conditions have in fact been validly incorporated into the contract. In the event that the necessary formalities have not been fulfilled, there may be a successful defence against their application. We will also check whether they apply to you as a consumer or as a business given that this may affect the scope of application. For example, a claim for consequential damage will likely be excluded if you are trading as a business. In the case of the Metaalunie general terms and conditions being applicable, we often see that an appeal is made to the fact that the insured has not formally raised the allegation of non-conformity within the specified time period or that the supplier has not been given the opportunity to rectify the problem, more specifically:
- Duty to report: According to the Metaalunie terms and conditions there is an obligation to report the defect within 14 days after an alleged non-conformity has been found. If this is not done, the customer will in principle lose their right to raise the matter at a later stage.
- Liability: If a non-conformity has been reported within the period and there is actual non-conformity the supplier must then be given the opportunity to rectify. We sometimes see that this is overlooked and that the insured has already arranged repairs through another party. Where this opportunity has not been given the supplier may be able avoid liability. Incidentally, it is also possible that the parties agree that another party will perform the repairs at the suppliers expense.
With this in mind, we advise you to:
- Ensure that a written complaint is filed as soon as possible but no later than 14 days after the non-conformity has been found. The complaint should be filed in writing and in the manner agreed in the contract; and
To give the supplier the opportunity to repair the non-conformity within a reasonable period of time, or to expressly agree that the repairs will be performed by a third party. In light of the fact that the use of the Metaalunie Voorwaarden are so prevalent in the Dutch market and have far reaching implications for the rights of the parties to a contract, we strongly recommend contacting us in the event of non-conformity or any other dispute as soon as possible.