Influence of notification duties. Notification duties directly influence the hierarchy of remedies. Remedies are easier to invoke if they are not subject to a duty of notification. Consequently, stringent notification duties will oft en limit the ability of consumers to invoke their remedies. On the other hand, the stricter the notification and examination duties, the more the stability of the contract is promoted.

Different kinds of notification duties. A first category of notification duties deals with warning the debtor of the fact that there is a shortcoming. Some systems require that the creditor ‘puts his debtor in default’ (‘mise en demeure/ingebrekestelling’, see infra, para. 139). Other systems introduce a ‘notification duty’ of the creditor, obliging the latter to inform his debtor that there is a shortcoming in the contract. A second category is the notification duties that deal with the remedies themselves. Certain remedies (especially extrajudicial remedies) require that the creditor must warn the debtor of his intention to invoke the remedy.

EU CONSUMER SALES ACQUIS

CONSUMER SALES DIRECTIVE

Optional Duty to Notify of Shortcomings

Facultative notification duty. In its 19th recital, the Consumer Sales Directive mentions a possibility for Member States to set a period within which the consumer must inform the seller of any lack of conformity, which may not be less than two months aft er the consumer has detected (or discovered) it (see also Article 5.2 CSD). The notification duty only runs after the actual discovery of the non-conformity, implying that the buyer is not under a duty to examine the delivered goods. It also allows Member States to ensure a higher level of protection for the consumer by not introducing such an obligation. Member States have currently regulated this possibility of a notification duty in various ways.

The Belgian law maker has decided that parties may agree to set a period within which the consumer must inform the seller of any lack of conformity, which may not be less than two months as from the day the consumer has discovered the defect. The Belgian implementation of the Consumer Sales Directive does not mention any sanction if (the agreed period for) the duty to notify has not been respected.