Defective goods in an international sale require prompt preservation of evidence and a clear notice identifying the specific defect. Check the contract, the applicable law and whether the United Nations Convention on Contracts for the International Sale of Goods (CISG) applies. Before returning goods, withholding payment or claiming damages, establish what was agreed and which legal and practical solution fits the delivery.
Defective goods are goods that, according to the buyer, do not meet the agreed requirements. The issue may concern quantity, specifications, packaging or an agreed use. Disappointing business results do not in themselves prove that a delivery was defective. Compare the goods with the requirements actually agreed and describe the non-conformity before choosing a measure.
Distinguish between a product defect, damage in transit, incorrect installation and unsuitable storage. Different parties and obligations may be involved. The seller issuing the invoice is not necessarily the manufacturer or carrier. Nor is a Dutch representative automatically liable for a foreign manufacturer. First identify the contracting party and its role in the delivery.
In an international sale, the applicable law, the competent court and any arbitration clause must be checked separately. The CISG may govern the sale. Choosing Dutch law does not necessarily exclude the Convention. Read the contract and terms before applying a rule for a domestic sale to an international dispute.
UNCITRAL’s explanation of the CISG describes the Convention’s role in international sales of goods. Its applicability requires assessment of the transaction and relevant terms. Mixed arrangements involving goods and substantial services need particular attention. It is incorrect to place every international supply agreement under the same legal regime.
The Rome I Regulation concerns the law applicable to contractual obligations. Brussels I bis deals, among other things, with jurisdiction. Keep those questions separate. The involvement of a Turkish business does not, in itself, exclude European jurisdiction rules where a defendant is based in the Netherlands.
Document the condition of the goods, the delivery records and the sequence of examination and notice. Record who examined which products, the method used and the results. Assessment may become more difficult after repairs, processing or destruction. Where possible, keep representative samples without creating a safety risk or omitting necessary protective measures.
Do not continue using potentially unsafe products merely to support a claim. If necessary, ask a technical expert how to handle them safely. If examination, repair or disposal is necessary, record why. Discuss how the other party can investigate the problem without important evidence being lost.
An effective notice identifies the order and describes the specific non-conformity using the information available. Record what was discovered, when it was discovered and which products are affected. Keep evidence of sending and receipt. Merely stating that the shipment is unsatisfactory may leave the seller unclear about the particular defect you are alleging.
The duty to examine goods and the requirement to give timely notice need immediate attention. The UNCITRAL Digest of CISG Case Law discusses these matters. Do not wait until all losses have been calculated without first assessing the position. A notice deadline and a limitation period are different issues; neither should be replaced with a single standard period of your own choosing.
Do not use a domestic template for a notice of default without checking whether it fits the international sale. Nor should you assume that a fixed number of days is always sufficient. Content, recipient and timing depend on the contract and the facts. Keep responses, inspection proposals and offered solutions in the same chronology.
Possible commercial solutions include repair, replacement, a price adjustment, an agreed return or compensation for loss. Whether you are legally entitled to a particular remedy depends on the applicable rules and circumstances. Weigh the desired outcome against operational disruption, evidence and costs. A workable solution also addresses transport, access, scheduling and treatment of the affected stock.
| Possible solution | Practical question |
|---|---|
| Repair or replacement | Who will carry it out, where and against which inspection criteria? |
| Price adjustment | Which products and defects does the settlement cover? |
| Return and refund | Who will arrange transport and storage? |
| Damages | Which losses are supported by evidence and linked to the defect? |
| Continuation under new arrangements | How will inspections and future deliveries be organised? |
Record the defect and its financial consequences in separate parts of the file. Evidence of a product problem does not establish the amount of loss. For each cost item, specify the amount, supporting document and connection with the delivery. Record the steps taken to limit further loss and the alternatives you considered.
For illustration, a buyer receives components that fail an agreed test. The buyer separates the affected batch, records the test method and requests a specific proposal for remedying the problem. The next step compares replacement, delay and demonstrable costs. This example explains the approach; it is not a description of a case handled by the firm.
Obtain an assessment promptly if a deadline is approaching, evidence may disappear or a proposed measure would change your contractual position. The assessment should also address the international aspects and possible proceedings. If a foreign lawyer is already involved, agree who will address each issue and how confidential documents will be transferred.
Our page on business law for entrepreneurs (Dutch page) provides a broader starting point. For payment disputes, see business debt recovery (Dutch page). If the main issue is missing or delayed delivery, consult the existing explanation about a supplier that does not deliver or delivers late (Dutch page).
Many problems arise from lost evidence or premature decisions about payment and ending the contract. Keep the products identifiable, describe the actual defect and assess the consequences of a measure before taking it. Your own obligations also matter. A useful approach considers the entire contract and the other party’s response.
This depends on jurisdiction rules, contractual clauses and the dispute. A defendant based in the Netherlands can provide an important connection with a Dutch court, but this is not the only relevant factor. Check any choice-of-court or arbitration clause before choosing proceedings. The buyer’s place of business alone does not provide a complete answer.
Preserve the goods or reliable evidence of their condition as far as this is practical and safe. Storage issues, deterioration or safety concerns may require action. Record the reasons for destruction, repair or return, and discuss opportunities for inspection. Do not assume either an unlimited duty to store goods or that discarding them without evidence is risk-free.
Not to conclude automatically that the CISG has been excluded. Choice of law and exclusion of the Convention are separate questions. The agreement, transaction type and applicable rules must be assessed together. In future contracts, expressly identify the regime intended so that a general choice-of-law clause does not create an unintended expectation about the applicable sales law.
A request for examination may be important to assessing the complaint and a possible solution. Discuss access, technical conditions and preservation of evidence before making arrangements. Record what will be examined and by whom. The consequences of permitting or refusing inspection depend on the contract, the rules and the specific circumstances.
Do not assume so. Discussions, technical investigations and proposals for remedying defects may take place while notice, contractual and procedural deadlines continue to run. Identify those deadlines separately and clearly record any valid agreement extending them. If time is short, obtain an assessment of what is required before waiting for the next meeting or a full calculation of loss.
Arslan Advocaten has an office in Rotterdam, among other locations, and handles business disputes. Where evidence and payment are at risk, the explanation of prejudgment attachment (Dutch page) may also be relevant. Submit your international supply dispute, stating the parties’ names and the next deadline.
CISG — United Nations Treaty Series, Articles 1–6, 38–39, 45–50 and 74–77
