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Professional seller vs. specialised seller: what’s in a name?

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On 15 January 2021, the Belgian Supreme Court (Hof van Cassatie / Cour de Cassation) overruled a decision of the Antwerp Court of Appeal of 3 February 2020. The Court of Appeal ruled that sellers may not claim the contractual exoneration for hidden defects given that they should be considered as professional sellers. The Court considered that as professional sellers, they were supposed to know the hidden defects of the goods they sold. Hence, they could not claim any exoneration’s clause for hidden defects. However, the Court of Cassation stated that the Court of Appeal’s decision was not motivated properly since it did not assess whether or not the seller was a specialised seller.

Under Belgian civil law, the seller is liable for the hidden defects of the goods he sells. Nevertheless, the seller may escape from this presumption by inserting an exoneration clause in the sales’ contract. In that case, the buyer will only be able to set aside the exoneration clause if he demonstrates that the seller was aware of the existence of those defects. 

The situation becomes more difficult if the seller is considered as the manufacturer or a specialised seller. In that case, he has an obligation of result: he must deliver goods without defects and take all measures to identify possible defects of the goods. The seller will be able to escape from its liability with an exoneration clause only if he demonstrates that the defect was impossible to detect. In that case, the buyer will not have to demonstrate that the seller was aware of the hidden defects. 

It is up to the court to assess in concreto whether or not the seller can be qualified as a specialised seller in light of two criteria: the degree of specialisation and the technical competence of the seller in question. 

In the case at hand, the Supreme Court points out that this distinction operates independently of whether the seller is classified as a professional or not. It means that it is the criterion of the seller's specialisation and not the question whether the seller is a professional that will determine the conditions to be exonerated from liability for hidden defects.

Consequently: 

  • a professional seller who is not considered as specialised does not bear the burden of proving that the defect was impossible to detect and could escape from its liability with an exoneration clause if the buyer does not demonstrate that he was aware of the defect.
  • a seller who is not considered as professional could be nevertheless qualified as specialised and will be able to limit its liability with an exoneration clause only if he demonstrates that the defect was impossible to detect. 

Companies should be aware of this distinction, given the serious legal consequences in practice. The contractual terms of a contract of sales between businesses or between consumers as well as the use of words on communication’s instruments towards buyers should be correctly chosen and formulated.  

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