Dear Weekender,
Let’s pretend you purchased a new television, and after four months it suddenly stopped working. You decide to go back to the seller, but the seller just refers you to the manufacturer. Unfortunately, many people experience similar situations. What are your options? Should you accept the loss, attempt repairs yourself, or contact the manufacturer?
In Sint Maarten, the law offers specific protection to individuals who purchase goods for personal use. This is known as consumer sale law (in Dutch: ‘consumentenkoop’). The rules in our Civil Code are specifically designed to protect the consumer, because the consumer is generally considered the weaker party in transactions with professional sellers. Knowing your rights when it comes to consumer purchases is essential, because it gives you the tools to take effective action when problems arise.
First things first: What exactly is a consumer sale?
A consumer sale is a purchase agreement between a private individual and a professional seller. The buyer should be acting in a personal capacity. If you purchase a television for your business, you are not considered a consumer. Similarly, if you purchase a product from another private individual (for example, through a classified advertisement in The Daily Herald), the transaction does not qualify as a consumer sale, because there is no professional seller in this case. Finally, the product must be a movable item (in Dutch: ‘roerende zaak’), such as furniture, electronics, or clothing. If the transaction does not meet the criteria, the regular rules for sales and purchase apply, and both parties are generally considered to be on equal footing. That means that other transactions fall outside the scope of consumer sale law. Examples of excluded transactions are the sale of real estate, the provision of services, transactions between private individuals (for example through the classifieds of The Daily Herald).
Second: What are your rights?
The principal protection under consumer sale law is the right to receive a product that conforms to the agreement. A product must meet the reasonable expectations based on the seller’s information and the nature of the product. So, when does a product not conform?
- The product must match the description given by the seller and must possess the qualities that were promised. For example, you buy a laptop advertised as having 512 GB of storage. When you get home, you discover it only has 256 GB. The product does not match the description and is not in conformity with the agreement.
- The product must be fit for the purposes for which similar goods are ordinarily used. For example, you purchase a blender to make smoothies. After using it twice, the motor burns out even though you followed instructions and only blended soft fruits. Since a blender is expected to handle a task like this, the product is not fit for normal use and, therefore, not in conformity with the agreement.
- If the product is defective within six months after delivery, the law presumes the defect existed at the time of delivery, unless the seller proves otherwise. For example, you buy a refrigerator and after four months, it no longer cools properly. The law assumes that the refrigerator was already faulty when sold, even if the problem only appeared later. It is up to the seller to prove that you caused the defect or that it developed after the sale due to other reasons.
It is important to note that these rights apply regardless of any general terms and conditions that the seller may try to impose on you. That is because most consumer protection rules are binding; even in a contract, these rules cannot be set aside. For example, a clause stating that repairs during the first six months are always at the buyer’s expense is in principle unenforceable, despite what the seller may tell you!
That being said; you also have certain obligations as a consumer:
- You should read the product description carefully and ask the seller questions if you are uncertain about the product’s suitability.
- You must treat the product with care and follow any instructions provided. If the product is damaged due to misuse, the seller is not liable.
Third: What if the seller doesn’t cooperate?
If there is a problem with the product, you should always first contact the seller and attempt to reach a solution. This may include repair, replacement, or a refund. If the seller does not cooperate or the proposed solution is unsatisfactory, you can try to see if mediation can help. In that case, a neutral third party may help facilitate the discussion and help parties reach an agreement. You can also consider approaching the manufacturer – although this is the seller’s obligation – it might help to take matters into your own hands. Generally, this is a difficult process as the manufacturers are not situated on Sint Maarten, and it is even possible that they refer you back to the seller.
Last resort
If that doesn’t work, then you can initiate proceedings in court. For claims involving items valued at less than XCG 10,000 (approximately US $5,600), the small claims court is the appropriate forum. Please visit the website of the Joint Court of Justice (http://www.gemhofvanjustitie.org) and download the request form.
Wishing you a joyful and safe Carnival season.
Yours sincerely,
Caroline van Hees |
HBN Law & Tax
