Dutch Civil Code

Book 7 Particular agreements

Title 7.1 Sale and exchange

Section 7.1.1 General provisions for sale agreements

Article 7:1 Definition of a 'sale agreement'
Sale is the agreement under which one of the parties engages himself to deliver a thing and the other party to pay a price in money in return.

Article 7:2 Sale of a dwelling house
- 1. The sale of an immovable thing or a component thereof that is intended to be used as a dwelling (residence), has to be concluded in writing if the buyer is a natural person who, when entering into the agreement, does not act in the course of his professional practice or business.
- 2. The private deed, drawn up for this purpose between the parties, or a copy of it must be handed over to the buyer against issuance, if the seller desires so, of a dated receipt. During three days after the deed or its copy has been handed over to the buyer, the buyer has the right to dissolve the sale agreement ('reflection period'). When within six months after the buyer has used this right, the same parties enter again into a new sale agreement related to the same immovable thing or component, then this right of dissolution does not arise again.
- 3. Paragraph 1 and 2 apply accordingly to the sale of participation rights or membership rights granting a right of use of an immovable thing or a component thereof that is intended to be used as a dwelling (residence).
- 4. It is not allowed to derogate to the disadvantage of the buyer from the provisions of paragraph 1 up to and including 3, except by means of a Standard Regulation meant in Article 6:214 the Civil Code*).
- 5. The provisions of paragraph 1 up to and including 4 do not apply to hire-purchase agreements nor to sales that take place at a public auction in front of a notary. They neither apply when the agreement falls as well within the scope of the definition of a contract as referred to in Article 7:50a, under (c) or (f).

*) Such a Standard Regulation has not yet been issued.

Article 7:3 Registration of the buyer's debt-claim for the delivery of bought immovable propery
- 1. The purchase of registered property may be registered in the public registers for registered property, meant in Section 3.1.2 of the Civil Code, unless the seller would not have yet been able, at the moment of registration, to deliver the sold property or component due to the exclusion of Article 3:97 of the Civil Code with respect to the delivery in advance of future registered properties. When selling an immovable thing or a component thereof that is intended to be used as a dwelling (residence), it is not allowed to derogate from the previous sentence to the disadvantage of a buyer who is a natural person and who, when entering into the agreement, does not act in the course of his professional practice or business.
- 2. During the period of reflection, meant in Article 7:2, paragraph 2, the debt-claim of the buyer, derived from the sale agreement, can only be registered in the public registers for registered property if the deed of the sale agreement is drawn up and countersigned by a notary established in the Netherlands.
- 3. The following rights and events cannot be invoked against a buyer whose debt-claim has been registered in the public registers for registered property:
a. an alienation or encumbrance (conveyance) of the concerned property or component by the seller, unless this alienation or encumbrance (conveyance) results from an earlier registered sale agreement or took place by virtue of a right to claim delivery of that property or component, which debt-claim, according to Article 3:298 of the Civil Code, has priority over the registered debt-claim and, at the moment on which this last debt-claim was registered, either the buyer, entitled to that registered debt-claim, already knew that this other debt-claim existed or a writ of a protective provisional seizure, served upon the seller to ensure that he will deliver the concerned property or component, was already registered in the public registers for registered property.
b. an alienation or encumbrance (conveyance) that takes place in continuation of an alienation or encumbrance (conveyance) by the seller as meant under point (a) of the present Article;
c. the placing under fiduciary administration of the concerned property or component, which protective measure has come about after the registration of the buyer's debt-claim or, if it had come about prior to it, which was not yet registered in the public registers for registered property at the time of registration of the buyer's debt-claim, unless the buyer to whom the registered debt-claim belongs already knew at this moment that this fiduciary administration existed;
d. a lease out of the concerned property of component that has come about after the buyer has registered his debt-claim;
e. a qualitative obligation meant in Article 6:252 of the Civil Code that has been registered after the debt-claim of the buyer;
f. a seizure under foreclosure or a protective provisional seizure of which the writ has been registered after the debt-claim of the buyer;
g. a judgment providing the bankruptcy, the suspension of payment under a moratorium or the application of the Debt Repayment Scheme for Natural Persons of or with regard to the seller, registered after the day on which the buyer's debt-claim was registered.
- 4. The legal consequences of the registration of the debt-claim of the buyer, mentioned in paragraph 3, expire with retroactive effect if the sold property or component is not delivered to the buyer within six months from the day on which his debt-claim was registered. Furthermore, in that event the law abandons with retroactive effect the presumption that everyone could have known the existence of the debt-claim of the buyer if he had consulted the public registers for registered property.
- 5. During a time period of six months, starting from the day on which the registration has lost its legal consequences, the same parties cannot register a sale agreement that is related to the same property.
- 6. The registration of the debt-claim of a buyer can only take place if the deed of the sale agreement entails a signed and dated declaration of a notary, expressing his name, forenames, place of office and quality and in which is explained that paragraph 1, 2 and 5 of the present Article do not stand in the way of a registration of the buyer's debt-claim.
- 7. Paragraph 1 up to and including 6 do not apply to hire-purchase agreements.

Article 7:4 Purchase price
Where the sale has been concluded without determination (assessment) of the purchase price, the buyer has to pay a reasonable price. The prices usually charged by the seller at the time of the conclusion of the sale agreement are taken into account in determining (assessing) this price.

Article 7:5 Consumer sale agreements
- 1. By a 'consumer sale' is understood in this Title: the sale agreement related to a good (movable thing), electricity included, concluded by a seller who, when entering into the agreement, acts in the course of his professional practice or business, and a buyer, being a natural person who, when entering into the agreement, does not act in the course of his professional practice or business.
- 2. Where the good (movable thing) is sold by a representative who, when concluding the agreement in the name of his principal, acts in the course of his professional practice or business, the sale is regarded as a consumer sale, unless the buyer knows at the time of conclusion of the agreement that the principal does not act in the course of his professional practice or business.
- 3. The previous paragraphs do not apply if the agreement concerns water that is transported through piping networks to the consumer.
- 4. If the to be delivered good (movable thing) still has to be made (produced) and the agreement under which it has to be delivered meets the description of Article 7:750 of the Civil Code, then the agreement is regarded as a consumer sale if the agreement is concluded by a building contractor who, when entering into this agreement, acts in the course of his professional practice or business, and an opposite party, being a natural person who, when entering into the agreement, does not act in the course of his professional practice or business. The provisions of this Title and that of Section 7.12.1 apply at the same time side by side. Where this leads to a conflict between these provisions, the provisions of this Title shall be applicable.

Article 7:6 Mandatory law
- 1. With regard to a consumer sale agreement it is not possible to derogate to the disadvantage of the buyer from Sections 7.1.1 up to and including 7.1.7 and it is not possible to limit or exclude the rights and remedies that the buyer has pursuant to law in case of a non-performance of the seller.
- 2. Paragraph 1 does not apply to Articles 7:11, 7:12, 7:13, 7:26 and 7:35, yet stipulations in standard terms and conditions that derogate to the disadvantage of the buyer from these Articles are considered to be unreasonably burdensome.
- 3. The applicability to a consumer sale of a right that does not or only partial offers protection as provided for by Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ L 171, p. 12-16), cannot lead to the result that the buyer loses the protection which is offered to him under this Directive by mandatory rules of law of the Member State of the European Union or of the State that is a party to the Agreement on the European Economic Area, where the buyer has his habitual residence.

Article 7:6a Given guarantees
- 1. If, in case of a consumer sale agreement, the seller or producer has promised in a guarantee that the sold good (movable thing) has certain qualities and that the buyer, when the good (movable thing) lacks one or more of these qualities, shall have certain legal rights (actions) or legal remedies, then the buyer may exercise these rights (actions) or remedies without prejudice to all other legal rights (actions) and legal remedies that he may exercise pursuant to law.
- 2. A guarantee must set out in plain and intelligible language which of the legal rights (actions) and legal remedies meant in paragraph 1 are granted to the buyer and it must make clear that the buyer has these legal rights (actions) and legal remedies without prejudice to the legal rights (actions) and legal remedies provided to him by law. Additionally, the guarantee must set out the name and address of the seller or producer who has provided the guarantee, as well as the duration and territorial scope of the guarantee.
- 3. If the buyer desires so, the information (data) meant in paragraph 2 must be made available to him. This must be done in writing or by means of another durable medium available and accessible to him.
- 4. The buyer is also entitled to the legal rights (actions) and legal remedies granted to him by the seller or producer in the guarantee certificate if the sold good (movable thing) does not have the qualities which were promised to be present in advertising by this seller or producer.
- 5. For the purpose of this Article, the next terms will have the following meaning:
'guarantee': a promise as meant in paragraph 1, made in a guarantee certificate or in an advertisement;
'producer': the manufacturer of the sold good, the one who has imported it into the territory of the European Economic Area, as well as any person who presents himself as being its producer by placing his name, trade mark or other distinctive sign on the good (movable thing).

Article 7:7 Unasked for goods and services
- 1. A person who has received a good (movable thing) and reasonably may assume that it was sent to him to persuade him to enter into a sale agreement, is allowed, irrespective of any other statement of the sender, to keep it for free (without consideration), unless it is attributable to him that it was sent to him.
- 2. The sending of an unordered good (movable thing) to a natural person who, when receiving it, did not act in the course of his professional practice of business, with the request to pay a certain price for it, is not permitted. If nevertheless a good (movable thing) has been sent as meant in the first sentence, then the provision of paragraph 1 regarding the right to keep the good (movable thing) for free (without consideration), shall apply accordingly.
- 3. If the recipient, in the situations meant in paragraph 1 or 2, sends back the good, the transmission price shall be for account of the sender.
- 4. Paragraph 2 applies accordingly to an unordered service performed to a natural person who, when receiving it, does not act in the course of his professional practice or business.

Article 7:8 Sale of a newly-built house
Where a newly-built house or a yet to be built new house, existing of an immovable thing or a component thereof, is sold and the buyer is a natural person who, when entering into the sale agreement, does not act in the course of his professional practice or business, Articles 7:767 and 7:768 apply accordingly to the sale agreement. It is not possible to derogate to the disadvantage of the buyer from this provision, except by means of a Standard regulation as meant in Article 6:214 of the Civil Code*).

*) Such a Standard Regulation has not yet been issued.

Section 7.1.2 Legal duties and obligations of the seller

Article 7:9 Main obligations of the seller
- 1. The seller is obliged to transfer and supply the sold object and its accessories. The accessories include the available title deed and other supporting documents; as far as the seller keeps an interest in these documents himself, he only has to hand over, upon the request of the buyer and at the buyer's costs, a duplicate or an abstract thereof.
- 2. The term 'supply' is understood as the act by which the seller puts the buyer in possession of the sold object.
- 3. In case of a sale under retention of title the term 'supply' is understood as the act by which the sold object is placed under control of the buyer.

Article 7:10 Passage of risks
- 1. As of the moment that the sold object has been supplied to the buyer, he bears all risks concerning that object, even when the ownership of it is not yet transferred to him. Therefore he still has to pay the purchase price if the sold object has been destroyed or damaged by a cause that is not attributable to the seller.
- 2. The same applies as of the moment that the buyer is in default with performing an act through which he has to participate in the supply. When the sold object is only determined by its type, then the default of the buyer only makes that the risks passes to him when the seller has pointed out a specific object with which he will perform his obligation derived from the sale agreement and he has informed the buyer about this in advance.
- 3. If the buyer invokes on appropriate grounds his right to rescind the sale agreement or to demand the replacement of the sold object, then the risks related to that object remain with the seller.
- 4. When the object has been supplied to the buyer, but the risks related to it nevertheless remain with the seller, then the destruction or decline of that object through a fault of the buyer shall be for account of the seller as well. From the moment, however, that the buyer reasonably has to take into account the fact that he might have to return the object, he must take care for it as a prudent debtor would and ensure its preservation; Article 6:78 of the Civil Code applies accordingly in that event.

Article 7:11 Passage of risks in the event of a consumer sale agreement
When, in the event of a consumer sale agreement, the seller or a carrier assigned by him, hands over the sold object at the address of the buyer, the buyer only bears the risks related to that object as of the moment that it has been handed over at his address, even if the object already had been supplied in the sense of Article 7:9.

Article 7:12 Costs of supply, taking delivery and legal transfer
- 1. The seller bears the costs of supply, including those of weighing and counting.
- 2. The buyer bears the costs of taking delivery and the costs of a deed of sale and of the transfer.

Article 7:13 Costs of supply in the event of a consumer sale agreement
When, in the event of a consumer sale agreement the seller or a carrier assigned by him, hands over the sold object at the address of the buyer, the seller may only charge costs for this as far as he, at the time of conclusion of the agreement, has reported those costs separately or has provided data on the basis of which he is able to calculate such costs. The same applies to costs chargeable on account of other activities performed by the seller on behalf of the buyer in connection with the sale.

Article 7:14 Fruits (benefits) of the sold object
From the day that the sold object has been supplied to the buyer, the fruits (benefits) of that object belong to the buyer, on the understanding that civil fruits (benefits) shall be calculated from day to day.

Article 7:15 Delivery without not accepted encumbrances and restrictions
- 1. The seller must transfer the ownership of the sold object free from any encumbrances and restrictions, with the exception of those explicitly accepted by the buyer.
- 2. Irrespective of any other contractual provision, the seller guarantees the absence of encumbrances and restrictions that result from facts that can be registered in the public registers, but that were not registered there at the moment on which the sale agreement was concluded.

Article 7:16 Support in legal proceedings
When a right of action (legal claim) is instituted (lodged) against the buyer to foreclose (sell under execution) the acquired object or to acknowledge a right or title of a third party with which this object should not have been encumbered, then the seller is obliged to enter into the legal proceedings in order to defend the interests of the buyer.

Article 7:17 Conformity with the sale agreement
- 1. The supplied object must be in conformity with the sale agreement.
- 2. The object is not in conformity with the agreement if it does not have the qualities that the buyer, given the nature of the object and the statements of the seller about it, could have expected on the basis of the agreement. The buyer may expect that the object has the qualities that are necessary to be able to use it in a normal way and of the presence of which he did not need to doubt as well as the qualities that are necessary to be able to use it in the particular way that the buyer intends to make of it as provided for in the agreement.
- 3. Another object than agreed upon or an object of another kind is not in conformity with the agreement. The same applies if what has been supplied differs in number, weight or measure from what has been agreed upon.
- 4. Where a sample or model has been shown or handed over to the buyer, the qualities of the supplied object must correspond with it, unless it was shown or handed over merely to give an indication without the object needing to be in conformity with it.
- 5. The buyer cannot appeal to the fact that the object is not in conformity with the agreement if he was aware or reasonably should have been aware, at the time of the conclusion of the agreement, of the lack of conformity. Neither can the buyer appeal to the fact that the object is not in conformity with the agreement if this is due to defects in or the unsuitability of raw materials originating from the buyer, unless the seller should have warned him about these defects or this unsuitability.
- 6. At the sale of immovable property the mentioning of the size of the surface area is regarded merely as to be giving an indication without the object needing to be in conformity with that size.

Article 7:18 Conformity with a consumer sale agreement
- 1. In determining whether an object, supplied on the basis of a consumer sale agreement, is in conformity with this agreement, statements about the object made in public by or on behalf of any of its previous sellers in the course of their professional practice or business, shall be regarded as statements of the final seller, except as far as the final seller neither was nor should have been aware of the statement in question, or this statement was repealed already at the time of the conclusion of the sale agreement in a way that was clear to the buyer, or except as far as the sale could not have been influenced by this statement.
- 2. If a deviation from what has been agreed upon reveals itself within a period of six months after the supply of sold object, then it is presumed that this object, at the moment that is was supplied, already was not in conformity with the consumer sale agreement, unless the nature of the object or the nature of the deviation opposes to this presumption.
- 3. Where, in the case of a consumer sale agreement, the seller is also obliged to take care of the installation of the sold object and this installation is performed unsound, this is equated with a lack of conformity of the object with the sale agreement. The same applies if the installation has been carried out unsound by the buyer himself, but due to the installation instructions which were given to him in connection with the delivery of the sold object.

Article 7:19 Foreclosure sale (sale under execution) or a claim of a third party
- 1. A person who buys an object at a foreclosure sale (sale under execution) cannot appeal to the fact that the acquired object is not free from encumbrances or restrictions with which it should not have been burdened or that the acquired object is not in conformity with the agreement, unless the seller was aware of one of these facts.
- 2. The same applies if the sale takes place by way of a foreclosure without recourse to the courts, provided that the buyer was or should have been aware that the sale took place by way of foreclosure. However, if a consumer sale agreement arises from a sale by way of foreclosure without recourse to the courts, then the buyer may appeal to the fact that the object is not in conformity with the agreement.

Section 7.1.3 Particular effects of a non-performance by the seller

Article 7:20 Non-performance because of a not accepted encumbrance or restriction
If the sold object is subject to an encumbrance or restriction with which it should not have been burdened, then the buyer may require that the encumbrance or restriction is raised, provided that the seller is reasonably able to comply with this demand [if not, the buyer only has the right to claim damages].

Article 7:21 Non-performance because of a lack of conformity*)
- 1. If the object is not in conformity with the sale agreement, then the buyer may demand that the seller:
a. supplies what is still missing;
b. repairs the supplied object, provided that the seller is reasonably able to comply with this demand;
c. replaces the supplied object, unless the deviation from what has been agreed upon is too insignificant to justify such a replacement or unless the object, after the moment on which the buyer reasonably should have taken into account that the received performance may have to be undone, has been destroyed or damaged because the buyer has not ensured its preservation as a prudent debtor should have done.
- 2. The costs of compliance with the obligations referred to in paragraph 1 cannot be charged to the buyer.
- 3. The seller must perform the obligations referred to in paragraph 1 within a reasonable time and without any significant inconvenience to the buyer, taking into account, among other facts, the nature of the object and the particular use that the buyer intends to make of it as provided for in the agreement.
- 4. In the event of a consumer sale agreement the buyer may, contrary to paragraph 1, only then not demand the repair or the replacement of the supplied object if such a repair or replacement is impossible or cannot be expected from the seller.
- 5. In the event of a consumer sale agreement, a repair or replacement of the supplied object cannot be expected from the seller if it imposes costs on him which are disproportional in comparison with the costs of exercising an alternative legal right (action) or legal remedy at the disposal of the buyer, taken into account the value of the object if it would be in conformity with the agreement, the significance of the lack of conformity and whether the alternative legal right (action) or legal remedy could be completed without significant inconvenience to the buyer.
- 6. If, in the event of a consumer sale agreement, the seller has not performed his obligation to repair the supplied object within a reasonable time after he has been urged to do so by means of a letter of formal notice to perform from the buyer, then the buyer is entitled to have the object repaired by a third person and to recover the costs thereof from the seller.

*) If no repair or replacement of the sold object can be demanded on the basis of the present Article, the buyer remains fully entitled to claim damages, to withhold payment of the purchase price or to rescind the sale agreement pursuant to law. See Articles 7:22 and 7:24.

Article 7:22 Lack of conformity with a consumer sale agreement
- 1. If, in the event of a consumer sale agreement, the supplied object is not in conformity with that agreement, then the buyer has in addition the right:
a. to rescind the sale agreement, unless the lack of conformity, given its insignificant nature, does not justify such a rescission with its legal effects;
b. to reduce the price in proportion to the significant nature of the lack of conformity.
- 2. The rights meant in paragraph 1 only arise when a repair or replacement of the supplied object is impossible or cannot be expected from the seller or the seller has failed to perform an obligation as meant in Article 7:21, paragraph 3.
- 3. The provisions for the rescission of an agreement of Section 6.5.5 of the Civil Code apply accordingly to the right to reduce the price appropriately as referred to in paragraph 1, under point (b), insofar this Section does not derogate from these provisions.
- 4. The legal rights (actions) and legal remedies mentioned in paragraph 1 and in Articles 7:20 and 7:21 may be exercised by the buyer without prejudice to all other legal rights (actions) and legal remedies at his disposal pursuant to law or contract.

Article 7:23 Duty of the buyer to report a lack of conformity
- 1. The buyer can no longer claim that the supplied object is not in conformity with the sale agreement if he has not reported the lack of conformity to the seller with convenient speed after he has discovered or reasonably should have discovered it. However, if the object appears to be missing a quality that it should have according to the seller or if the lack of conformity concerns facts which the seller knew or ought to have known, but which he did not mention to the buyer, then the lack of conformity must be reported to the seller with convenient speed after it has been discovered. In the event of a consumer sale agreement, the lack of conformity must be reported by the buyer with convenient speed after it has been discovered, on the understanding that a report within a period of two months after that discovery is considered to be made in time.
- 2. Rights of action (legal claims) and defences, grounded on facts which would justify the conception that the supplied object is not in conformity with the agreement, become prescribed on the expiry of two years after the report has been made in accordance with the first paragraph. Yet, the buyer preserves, as a defence against a right of action (legal claim) to obtain payment, the right to appeal to a price reduction or a compensation for damages.
- 3. The prescription period shall not run as long as the buyer cannot exercise his legal rights and legal remedies as a result of a deliberate intent of the seller.

Article 7:24 Compensation for damages in the event of a consumer sale agreement
- 1. If an object has been supplied on the basis of a consumer sale agreement, which object does not posses the qualities that the buyer could expect on the basis of that agreement, then the buyer is towards the seller entitled to a compensation for damages in accordance with Section 6.1.9 and 6.1.10 of the Civil Code.
- 2. Where the failure in performance consists of a defect which causes a safety risk as meant in Section 6.3.3 of the Civil Code (‘Liability for Defective Products), the seller shall not be liable for consequential and personal damages as referred to in that Section, unless:
a. he was aware or ought to have been aware of the defect;
b. he has promised that the sold object would be free of this defect;
c. it concerns damage to, or the destruction of, any item of property other than the defective product itself, to the point of which under Section 6.3.3 of the Civil Code no right of compensation exists on the basis of the threshold as regulated in that Section, without prejudice to his possible defences derived from Section 6.1.9 and 6.1.10 of the Civil Code.
- 3. Where the seller in compliance with paragraph 2 under point (a) or (b) has compensated the damage that the buyer has suffered, the buyer must transfer his rights derived from Section 6.3.3 of the Civil Code to the seller.

Article 7:25 Right of recourse against previous sellers in the distribution chain
- 1. Where the buyer, in case of a failure in performance as referred to in Article 7:24, has exercised against the seller one or more of his (contractual or statutory) legal rights (actions) and legal remedies at his disposal in the event of such a non-performance, the seller is entitled to a compensation for damages towards the one from whom he has bought the defective object, provided that this person, at the moment that he entered into the agreement with the seller, acted as well in the course of his professional practice or business. Expenses made by the seller in defence of the legal claim of the buyer only have to be reimbursed as far as they have been made in reason by the seller.
- 2. It is not possible to derogate to the disadvantage of the seller from paragraph 1.
- 3. The seller is not entitled to a compensation for damages as meant in paragraph 1 if the lack of conformity is related to facts of which he was aware or ought to have been aware or if the lack of conformity finds its cause in circumstances which occurred after the object has been supplied to him.
- 4. If the object misses a quality of which the seller had promised the buyer that it would be present, then the right of the seller to claim a compensation for damages under paragraph 1 is limited to the amount to which he would have been entitled if he had not made this promise.
- 5. The above mentioned paragraphs apply accordingly to the right of recourse under previous sale agreements in the chain of contracts.
- 6. The previous paragraphs do not apply as far as it concerns damage as meant in Article 7:24 paragraph 2.

Section 7.1.4 Obligations of the buyer

Article 7:26 Payment of the purchase price
- 1. The buyer has the obligation to pay the purchase price.
- 2. The payment of the purchase price has to be made at the moment and at the place of the supply of the sold object. In the event of a consumer sale agreement the buyer may only be obliged to pay half of the purchase price in advance.
- 3. Where a notarial deed is required for the transfer of ownership of the sold object, followed by the registration of that deed in the public registers which are kept for this purpose, then the indebted purchase price must have been brought out of the control of the buyer at the latest at the moment on which this notarial deed is signed and it only needs to be brought under control of the seller after this deed has been registered.
- 4. Where it concerns a sale of an immovable thing that is indented to be used as a dwelling (residence) or a sale of a component of such a thing, the buyer, if he is a natural person who, when entering into the agreement, does not act in the course of his professional practice or business, may not be obliged to pay the purchase price in advance, except that it is allowed to stipulate that he has to deposit an amount of at the highest 10 % of the purchase price at a notary as security for his obligation or that he has to provide security to the seller for this amount. It is not possible to derogate to the disadvantage of the buyer from the provision of the first sentence, except by means of a Standard Regulation as meant in Article 6:214 of the Civil Code*). What the buyer has paid or secured more than the allowed maximum of 10 % of the purchase price is considered to be an undue performance.
- 5. Paragraph 4 applies accordingly to the sale of participation rights or membership rights which give the right of use of an immovable thing that is intended to be used as a dwelling (residence) or of a component of such a thing.
- 6. The second full sentence of paragraph 2, and paragraph 4 and 5 do not apply when the agreement falls as well within the scope of the definition of a contract as referred to in Article 7:50a, under (c) and (f).

*) Such a Standard Regulation has not yet been issued.

Article 7:27 Withholding payment of the purchase price
When the buyer gets disturbed or has good reasons to fear that he will be disturbed by a third party who claims to be entitled to foreclose (sell under execution) the sold object or who claims that he has a right or title in that object himself with which it should not have been burdened, then the buyer may withhold payment of the purchase price, unless the seller provides sufficient security to cover the disadvantage that the buyer might suffer as a consequence of that third party’s claim.

Article 7:28 Prescription in the event of a consumer sale agreement
In the event of a consumer sale agreement, the right of action (legal claim) of the seller to demand the payment of the purchase price shall become prescribed two years after the involved debt-claim of the seller has become due and demandable.

Article 7:29 Duty of the buyer who rejects the supplied object to preserve and to take care for it
- 1. When the buyer has received the supplied object, yet with the intention to reject it, he must take care for it as a prudent debtor would and ensure its preservation; he has a right of retention over the object until he has been reimbursed for the costs reasonably made to this end.
- 2. The buyer who intends to reject a sold object that has been sent to him and that is at his disposal at the place of its destination, must receive and preserve it if this does not lead to the payment of the purchase price [according to contract] or to serious inconveniences or unreasonably costs, unless the seller himself is present at the place of destination or someone else is competent at that place to take care for the object for account of the seller.

Article 7:30 Duty to sell perishable or rapidly declining goods
When, in the situations provided for in Article 7:29, the received object will perish or rapidly decline or when its preservation would lead to serious inconveniences or unreasonably costs, the buyer must sell it in an appropriate way.

Section 7.1.5 Particular effects of a default of the buyer

Article 7:31 The buyer is in default of specifying the bought goods
If the agreement grants the buyer the right to specify the sold object by pointing out its measure or form or through another way of identification and he is in default of doing so, then the seller may proceed to make this specification himself, taking into account the needs of the buyer known to him.

Article 7:32 Duty for the creditor to sell perishable or rapidly declining goods that the buyer has wrongfully rejected
In the event that the buyer is in default of taking delivery of the sold object, Article 7:30 shall apply accordingly.

Section 7.1.6 Particular rights of rescission

Article 7:33 Right of rescission when the buyer does not take delivery of the sold object
If it is essential that a movable asset is supplied on a specific day and the buyer does not take delivery of it on that day, this is a ground for rescission as meant in Article 6:265 of the Civil Code.

Article 7:34 Rescission based on an anticipatory breach of contract of the buyer
The seller may rescind the sale agreement if the fact that the buyer does not take delivery of the sold object gives him good reason to fear that the price will not be paid.

Article 7:35 Increasing the purchase price in the event of a consumer sale agreement
- 1. If, in the event of a consumer sale agreement, the seller increases the purchase price after the conclusion of the sale by virtue of a contractual provision in that agreement, then the buyer is entitled to rescind the sale agreement by means of a written declaration made for this purpose, unless it has been agreed upon that the sold object is to be supplied more than three months after the conclusion of the sale.
- 2. For the purpose of paragraph 1, by a purchase price is understood the amount that has been pointed out provisionally at the conclusion of the agreement as being the indebted purchase price with reservation of the seller's right to make price modifications.

Section 7.1.7 Damages

Article 7:36 Assets with a current value
- 1. Where the sale agreement has been rescinded and the sold object has a current value, the compensation for damages equals the difference between the purchase price as agreed upon in the sale agreement and the current value at the day of non-performance.
- 2. For the purpose of calculating this compensation for damages the current value that has to be taken into account is that of the market where the sale took place or, if there is no such current value or if the participation of that market would be difficult, the price of a reasonable alternative market; differences in the costs of transport of the object shall be taken into account as well.

Article 7:37 Covering purchase
Where the buyer or seller has purchased goods of a third party to replace those to which the original sale agreement with the seller or buyer, respectively, relates ('covering purchase' or 'hedging contract') and he has acted reasonably in doing so, he is entitled towards the opposite party to a compensation equal to the difference between the agreed purchase price under the non-performed sale agreement and the price of the covering purchase.

Article 7:38 The right to a possibly higher compensation for damages
The provisions of the two previous Articles do not exclude the right to a higher compensation for damages if more damage has been suffered.

Section 7.1.8 Right of Reclamation

Article 7:39 Seller's right of reclamation
- 1. The seller who has transferred a movable thing, not being registered property, to the buyer, may reclaim it as his own property by means of a written declaration addressed to buyer for this purpose, if the buyer has failed to pay the purchase price and, in connection with this, the requirements for a rescission as referred to in Article 6:265 of the Civil Code are met. Through this declaration the sale agreement is rescinded and the right of ownership of the buyer and possible real property rights derived from it of other proprietors are lost; Articles 6:271, 6:273, 6:275 and 6:276 of the Civil Code apply accordingly.
- 2. Where only the price of a certain part of what has been transferred to the buyer, has not been paid, the seller may only reclaim this part as his own property. If with respect of the whole performance just a part of the price has not been paid, then the seller may reclaim a proportional part of what has been transferred to the buyer as his own property. In both cases the sale agreement is only rescinded for the reclaimed part of what has been transferred to the buyer.
- 3. In all other cases of a partial payment of the purchase price the seller may only reclaim as his own property all that has been transferred to the buyer (the entire performance) if this is done against reimbursement of what already was paid to him.

Article 7:40 Bankruptcy of the buyer or a judicial suspension of payment under a moratorium
- 1. Where the buyer has been declared bankrupt or where a judicial suspension of payment under a moratorium has been granted to him, a rightful reclamation by the seller of what has been transferred to the buyer has no effect, if the curator or, in case of a judicial suspension of payment under a moratorium, the buyer and the legal administrator jointly pay the full purchase price or give security for that payment within a reasonable period of time to be set by the seller in his declaration.
- 2. Paragraph 1 applies accordingly if the buyer falls under the Debt Repayment Scheme for Natural Persons, unless the sale agreement has been concluded after the court order which made the Debt Repayment Scheme applicable.

Article 7:41 The transferred thing(s) must still be in the same condition
The right of reclamation may be exercised only as far as what has been transferred to the buyer is still in the same condition as it was when it was supplied to him.

Article 7:42 Protection of third parties
- 1. Unless the transferred thing has remained in the hands of the buyer, the seller has lost his right of reclamation when the buyer has transferred the thing non-gratuitously in accordance with Article 3:90, paragraph 1, or Article 3:91 of the Civil Code to a third party who reasonably could not have expected that such a right of reclamation would be exercised.
- 2. Where the thing, after it has been transferred to the buyer, has been encumbered non-gratuitously with a usufruct or a pledge, paragraph 1 applies accordingly.

Article 7:43 The buyer has accepted a negotiable paper
The seller cannot exercise his right of reclamation, granted to him under Article 7:39, if the buyer has accepted a negotiable paper (commercial instrument) for the full purchase price. Where a negotiable paper has been accepted for a part of the purchase price, the seller may only exercise his right of reclamation if he provides security on behalf of the buyer as compensation for the buyer for what is due to him on account of his acceptance.

Article 7:44 Expiration of the right of reclamation
The possibility for the seller to exercise his right of reclamation, granted to him under Article 7:39, ceases to exist when both, six weeks have passed since his debt-claim to demand payment of the purchase price has become due and demandable, and sixty days have passed since the day that the thing has been stored by the buyer or by someone who has been appointed by him for this purpose.

Section 7.1.9 Sale on trial

Article 7:45 Trial sale is a sale under a condition precedent
- 1. A trial sale is considered to be concluded under the condition precedent that the sold object is to the satisfaction of the buyer.
- 2. Where the buyer has not informed the seller about his decision before the expiry of a period sufficient to try out the object, he may no longer reject it.

Article 7:46 Passage of risk at a trial sale
As long as the sale agreement is not definitive, the seller still bears the risk of the object.

Section 7.1.9A Distance contracts

Article 7:46a Definitions
In this Section is understood by:
a. a 'distance contract': the agreement under which a seller or service provider, within the framework of a system for distance sales or distance provisions of services, as organized by him, exclusively makes use of one or more means of distance communication up to and including the moment on which the contract is entered into;
b. a 'distance sale': the distance contract that is a consumer sale agreement;
c. a 'distance contract for performing services': the agreement which necessarily implicates the performance of services from a distance between a service provider who, when entering into the agreement, acts in the course of his professional practice or business and a counterpart, being a natural person who, when entering into the agreement, does not act in the course of his processional practice or business;
d. a 'financial service': every service of a banking nature or in the field of credit supply, insurance, individual pensions, placements, investments and payments;
e. 'means of distance communication': any means which, without the simultaneous physical presence of parties, may be used for the conclusion of a distance contract between those parties;
f. an 'operator of a means of communication': a natural person or legal person whose trade, business or professional practice it is to make one or more means of distance communication available to sellers or service providers.
g. 'directive': directive 97/7/EC of the European Parliament and of the Council of the European Union of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ L 144);
h. 'directive no. 2002/65/EG': directive no. 2002/65/EG of the European Parliament and the Council of the European Union of 23 September 2002 concerning the distance marketing of consumer financial services (OJ L 271).

Article 7:46b Exemptions to applicability
- 1. Article 7:5, paragraph 3, does not apply to a distance sale.
- 2. This Section (Section 7.1.9A) does not apply to a distance sale:
a. concluded by means of automatic vending machines or automated commercial premises;
b. concluded at an auction.
- 3. Articles 7:46c up to and including 7:46e and 7:46f, paragraph 1, do not apply to distance sales that mainly concern foodstuffs, beverages or other goods intended for everyday consumption supplied to the home of the buyer, to his residence or to his workplace by regular roundsmen.

Article 7:46c Information to be provided in advance
- 1. In good time prior to the conclusion of a distance sale, the buyer must be provided in a clear and comprehensible manner, in any way appropriate to the means of distance communication used, with the following information of which the commercial purpose must be made clear:
a. the identity of the seller and, if the distance sale requires the payment in advance of the price or a part of it, his address;
b. the most important characteristics of the sold object;
c. the price of the sold object including all taxes;
d. the costs of supply, where appropriate;
e. the arrangements for payment, supply or performance of the distance sale;
f. whether or not a right of dissolution exists in regard of the agreement in accordance with Article 7:46d, paragraph 1, and 7:46e;
g. if the costs of using the means of distance communication are calculated on another basis than the basic rate: the height of the applying rate;
h. the period for which the offer or the price remains valid;
i. where appropriate, in the case of a distance sale which tends to supply products permanently or recurrently: the minimum duration of the contract.
- 2. In good time during the performance of the distance sale and, as far as it does not concern goods that have to be supplied to third parties, at the latest at the time of supply, the buyer must in a clear and comprehensible manner be provided in writing or, as far as it concerns the data meant under point (a) and (c)-(e), in another durable medium available and accessible to him, with the following information, unless this information has already been given to the buyer prior to the conclusion of the distance sale:
a. the data meant in point (a) up to and including (f) of paragraph 1;
b. the requirements for exercising the right of dissolution in accordance with Article 7:46d, paragraph 1, and 7:46e, paragraph 2;
c. the visiting address of the place of business of the seller to which the buyer may address any complaints;
d. where appropriate: data about the guarantee and about services to be provided within the framework of the distance sale;
e. where the distance sale is of unspecified duration or of a duration exceeding one year: the requirements for termination of the agreement .

Article 7:46d Consideration time and right of dissolution
- 1. During a period of seven working days, starting from the day of receipt of the sold object, the buyer has the right to dissolve the distance sale without giving any reason. If not all requirements of Article 7:46c, paragraph 2, have been met, this period is three months. The first sentence shall apply accordingly as of the moment on which all requirements of Article 7:46c, paragraph 2, have been met within the period meant in the second sentence.
- 2. In the event of a dissolution pursuant to paragraph 1, the seller may charge no compensation to the buyer, except for the direct costs of returning the object.
- 3. In the event of a dissolution pursuant to paragraph 1, the buyer is entitled to
reimbursement of what he has paid to the seller, which right may be exercised free of charge. The reimbursement must be carried out as soon as possible and in any case within 30 days after the dissolution.
- 4. Paragraphs 1-3 do not apply to a distance sale contract:
a. of an object of which the price depends on fluctuations in the financial market that cannot be controlled by the seller;
b. of an object which:
1°. has been manufactured to the buyer's specifications;
2°. is clearly personalized;
3°. by reason of its nature, cannot be returned;
4°. or declines or expires rapidly;
c. of audio or video recordings or computer software if the buyer has broken their sealing;
d. of newspapers and illustrated magazines.

Article 7:46e Dissolution of an accompanying loan agreement
- 1. A dissolution of the distance sale contract pursuant to Article 7:46d, paragraph 1, leads by operation of law and without any penalty for the buyer to the dissolution of an agreement under which the seller has lend a sum of money to the buyer with the intention that de buyer uses this loan to pay off the purchase price.
- 2. In the event of a dissolution of the distance sale contract pursuant to Article 7:46d, paragraph 1, the buyer also has the right to dissolve, without any penalty, an agreement concluded between him and a third party under which this third party has lend a sum of money to the buyer for the payment of the purchase price to the seller, if this agreement has been concluded because of an agreement between the seller and that third party.

Article 7:46f Non-performance by the seller
- 1. Without a letter of formal notice to perform being necessary, the seller defaults (enters into default) when he has not performed his side of the distance sale contract within a maximum of thirty days from the day on which the buyer has placed his order at the seller, except as far as the delay in performance is not attributable to the seller or performing has become permanently impossible within this period.
- 2. If performing is impossible because the bought object is not available, then the buyer must be informed of this situation as soon as possible and he has the right to obtain, free of charge, a refund of any sums he has paid to the seller. The refund must be paid as soon as possible and in any case within thirty days after the seller has notified the buyer that the bought object is not available.
- 3. If, in the situation referred to in paragraph 2, the seller, by virtue of a contractual provision stipulated prior to or at the conclusion of the distance sale contract, has the right to provide the buyer with an object of equivalent quality and price, then the costs of returning this object shall, after the right to dissolve the distance sale has been exercised, be borne by the seller in accordance with to Article 7:46d, paragraph 1. The buyer must be informed of this possibility in a clear and comprehensible manner.

Article 7:46g Fraudulent use of payment cards
A natural person who, when entering into the agreement, does not act in the course of his professional practice or business, of whom a payment card has been used fraudulently in connection with a distance sale, cannot be obliged to pay any amount charged to him as a result of that fraudulent use, except insofar this fraudulent use is a consequence of a circumstance which is attributable to him. What already has been paid by him to this point, is considered to be an undue performance.

Article 7:46h Unasked for commercial communication
- 1. When unasked calls are made by telephone to a natural person who does not act in the course of his professional practice or business when receiving the call, with the intention to persuade this person to enter into a distance sale contract, then the identity of the seller and the commercial purpose of the call must be told clearly at the beginning of each conversation.
- 2. The use of automatic calling systems without human intervention, the use of facsimile machines (faxes) and the use of electronic messages for transmitting unasked communication to a natural person who does not act in the course of his professional practice or business when receiving it, with the intention to persuade him to enter into a distance sale contract, is only permitted if the person concerned has in advance given his consent to it, without prejudice to what is provided for in paragraph 3.
- 3. Every person who has obtained electronic contact data for electronic messages in connection with the sale of an object, may use these data for transmitting communication for the promotion of the conclusion of distance sale contracts relating to similar objects of his own, provided that, at the moment of obtaining these contact data, the customer has been clearly and explicitly given the opportunity, free of charge and in an easy way, to object against the use of those electronic contact data, and, if the customer has not made use of this opportunity, that in future this opportunity shall be given to him again under the same conditions at each transmitted communication. Article 41, second paragraph, of the Personal Data Protection Act applies accordingly.
- 4. In using electronic messages for the promotion of the conclusion of distance sale contracts the following data must be mentioned at all times:
a. the real identity of the one on behalf of whom the communication is transmitted, and
b. a valid mail address or number to which the recipient may address a request to make an end to such communication.
- 5. The use of means for distance communication other than those mentioned in paragraph 2 for transmitting unasked communication or making unasked announcements for the promotion of the conclusion of distance sale contracts to a natural person who is not acting in the course of his professional practice or business, is permitted, unless the person concerned has made known that he does not want to receive communication or statements where these means of distance communication are used.
- 6. A person who transmits unasked communication or makes unasked announcements in order to promote the closing of distance sale agreements, has to take appropriate measures to give notice at least once a year to the persons meant in paragraph 5 of the possibility to declare that they do not want to receive communication or statements in the way as meant in paragraph 5. These persons may be given notice of this possibility by means of an announcement in one or more newspapers or in any other appropriate way.
- 7. No costs may be charged to the persons meant in paragraph 2 and 5 for the measures meant in those paragraphs.

Article 7:46i Provision of services
- 1. Articles 7:46b, paragraph 2, 7:46c, 7:46d, paragraph 1-3 and 4, point (a), 7:46e and 7:46f, paragraphs 1 and 2, apply accordingly to a distance contract for performing services not being a financial service. Articles 7:46g and 7:46h apply accordingly to a distance contract for performing services.
- 2. Contrary to paragraph 1, the Articles mentioned in paragraph 1 do not apply to a distance contract:
a. to perform services, if this contract is concluded with a telecommunication operator through the use of public payphones;
b. to build a work or construction, if this contract necessarily implicates the construction of immovable property.
- 3. Contrary to paragraph 1, the Articles 7:46c up to and including 7:46e and 7:46f, paragraph 1, do not apply to a distance contract for performing services related to the provision of accommodation, transport, catering or leisure services, where the service provider commits himself, at the moment that the contract is concluded, to provide these services on a specific date or within a specific period;
- 4. Contrary to paragraph 1, Article 46c, paragraph 2, does not apply to a distance contract for performing services where the service is performed on only one occasion through the use of a means of distance communication and which is invoiced by the operator of the means of distance communication. Nevertheless the visiting address of the place of business of the service provider to which his counterpart may address any complaints, must be provided always to that counterparty.
- 5. Contrary to paragraph 1, Article 7:46d does not apply to a distance contract for performing services:
a. if the performance of the service has begun with the counterparty's consent before the end of the seven working day period referred to in Article 7:46d ,paragraph 1, first and third sentence;
b. concerning gaming and lottery services.
- 6. In the event of a distance contract for performing services the periods referred to in Article 7:46d, paragraph 1, first and second sentence, start to run as of the conclusion of the contract.
- 7. Any contractual term or condition implying that the counterparty has to prove that the service provider has not fully or partially complied with his obligations, incumbent upon him pursuant to Directive 2002/65/EC, is voidable.

Article 7:46j Mandatory law
- 1. It is not possible to derogate from the provisions in this Section to the disadvantage of the buyer or the counterparty of the service provider.
- 2. Paragraph 1 does not apply to Article 7:46f, paragraph 1.
- 3. The applicability to a contract of a right that does not offer the protection provided for by Directive no. 97/7/EC or Directive no. 2002/65/EC, respectively, or that only offers this protection partially, cannot have the effect that the buyer or the counterparty of the service provider is deprived from the protection which by virtue of Directive no. 97/7/EC or Directive no. 2002/65/EC, respectively, is offered to him by mandatory rules of law of a Member State of the European Union or of another State that is a party to the Agreement on the European Economic Area, where this buyer or counterparty has his domicile (habitual residence).

Section 7.1.10 Sale of valuable rights

Article 7:47 Corresponding applicability of Title 7.1 to the sale of valuable rights
A sale agreement may also be related to a valuable right. In that case the provisions of the previous Sections of this Title apply accordingly to the sale agreement as far as this is in line with the nature of that valuable right.

Article 7:48 Sale of a share in a deceased's estate
- 1. A person who sells a share in the estate of a deceased person, without naming the assets of that estate piece by piece, is only obliged to vouch for his quality as heir.
- 2. Where the seller already has enjoyed any fruits (benefits) of the deceased's estate, where he already has collected a debt-claim belonging to the deceased's estate or where he already has alienated an asset from that estate, he must compensate the buyer proportionally.
- 3. The buyer must compensate the seller for what the seller has paid with regard to debts and charges of the deceased's estate and he must pay to the seller what the seller could claim himself as creditor of that estate.

Section 7.1.10A Sale contracts for purchasing a right to use immovable properties on a timeshare basis

Article 7:48a [repealed on 23-02-2011]

Article 7:48b [repealed on 23-02-2011]

Article 7:48c [repealed on 23-02-2011]

Article 7:48d [repealed on 23-02-2011]

Article 7:48e [repealed on 23-02-2011]

Article 7:48f [repealed on 23-02-2011]

Article 7:48g [repealed on 23-02-2011]

Section 7.1.12 Exchange

Article 7:49 Definition
An exchange agreement is an agreement under which both parties have engaged themselves to transfer a thing to the other party in return for another thing that has to be transferred by the other party.

Article 7:50 Corresponding applicability of the provisions of Title 7.1 to exchange agreements
The statutory provisions which apply to a sale agreement apply accordingly to an exchange agreement, on the understanding that each party is considered to be on the one side a seller with regard to the obligation incumbent upon him and on the other side a buyer who is entitled to the performance that has to be carried out by the other party.