On 30 June 2025, a judgment of the Midden-Nederland District Court was published in a dispute over defects found after the delivery of a yacht (ECLI:NL:RBMNE:2025:2865).
Facts presented
In 2021, a buyer purchased a sloop from a shipyard. An email exchange containing detailed arrangements was attached to the contract between the buyer and the shipyard, on which the buyer made handwritten comments about, among other things, a CE type B certification for the sloop. The shipyard did not object to these comments.
After delivery, the buyer notified the shipyard of problems with the rudder, the batteries, the bilge pump and the engine. After some correspondence with the shipyard, the buyer commissioned the repair work himself. The repair company drew up a damage report on the defects in the sloop. The buyer sent the damage report to the shipyard.
With regard to the failure to comply with CE type B certification, the buyer claims a purchase price reduction of more than €27,000 because the shipyard would offer a successor model of the sloop for sale at a correspondingly lower price. The buyer also claims compensation for the repair costs incurred of more than €18,000 due to the other defects in the sloop, compensation for loss of use of more than €21,000 and the provision of the CE marking, owner’s manual and CE declaration of conformity for the sloop, on pain of a penalty. The shipyard argues that the successor model is a hull sloop without an engine and options and that the price is therefore much lower, and also puts forward other defences.
Court considerations
The court considers that, due to the detailed agreements and the shipyard’s failure to protest against the buyer’s handwritten comments, the buyer was justified in relying on the fact that the sloop would have CE type B certification and would therefore be suitable for sailing at sea. It is not disputed that the sloop does not have that certification and is not suitable for sailing at sea.
The court rejects a reduction in the purchase price on the grounds of misrepresentation because the shipyard did not have to understand that CE type B certification was of decisive importance to the buyer. Although the buyer did ask what type of certification the sloop had, it had the sloop repaired at considerable expense after it knew that the sloop was not suitable for sailing at sea. According to the court there is, however, a failure to perform the contract. Because the sloop is not suitable for sailing at sea, performance is permanently impossible and the buyer is therefore entitled to partially terminate the contract. The court considers that the reduction in the purchase price must be estimated proportionally on the basis of the extent to which the buyer is restricted in his intended use of the sloop, not on the basis of a successor model of the sloop. Because the extent to which the buyer is restricted in his intended use of the sloop due to the lack of CE type B certification is very minor, the court estimates the reduction in the purchase price at only €1,000.
With regard to the claimed repair costs, the court considers that it has been sufficiently established that the other defects in the sloop were already present at the time of delivery, either because of the short period between delivery and the occurrence of the defects, or because the damage report concludes that the defects were not caused by the use of the sloop but concern installation errors, and these detailed conclusions have not been sufficiently refuted by the shipyard. The court considers that the buyer did not have to expect these defects in a second-hand sloop that had sailed for no more than 140 hours. Moreover, the shipyard was in default without notice of default due to its inactivity, despite that the buyer had given the shipyard the opportunity to remedy the defects. The claimed repair costs are awarded insofar as they were incurred after the shipyard was in default and up to an amount of more than €12,000.
The claim for compensation for loss of use is rejected because the buyer did not rent a replacement vessel for the period during which he was unable to use the sloop, and because the high threshold for the award of non-material damages has not been met. The court did order the shipyard to provide the CE marking, owner’s manual and CE declaration of conformity for the sloop, on pain of a maximum penalty.
Lessons learned
This case shows that arrangements can also become legally binding if one party unilaterally makes comments and the other party does not object to them. Such comments do not usually qualify as acceptance of an offer, but as a counter-offer. However, under certain circumstances, that counter-offer may be deemed to have been tacitly accepted by the other party. In this case, those comments led to the shipyard being held liable for the absence of CE type B certification for the sloop, although the court severely limited the shipyard’s duty to compensate in this regard.
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