Officiële Toelichting

A defectively performs a construction contract with B and B informs A of the non-conformities in October without receiving any response from A. Two years later B again approaches A, threatening to bring an action for damages. This time A responds and acknowledges the non-conformity of its performance and promises to cure the non-conformity. On the following day a new general limitation period starts to run for B's right to damages.

B discovers defects in the construction work of A only nine years after completion of the work. The defects could not have been discovered earlier. B threatens to initiate legal action, and A acknowledges the defects. A new general limitation period begins to run on acknowledgement, so that altogether the limitation period amounts to twelve years.

The facts are the same as in Illustration 2, except that B knows or ought to know of A's defective construction at the time of completion. B approaches A only 7 years later, and A acknowledges the defective performance. B's claim is nevertheless already barred under Article 10.2(1)and is not revived by A's acknowledgement.

The facts are the same as in Illustration 3, except that A, in order to maintain a profitable business relation, not only acknowledges the defective performance, but promises to cure the defects regardless of any question of A's liability. This agreement creates a new obligation for A, which is barred only three years later.

Nine years after completion B discovers defects in A's construction work which could not have been discovered earlier. On notice to A, A responds that it will investigate the causes of the defects and will therefore not invoke the limitation period until six months after the experts investigating the defects submit their report. The report is submitted twelve months later, confirming B's notice of defects. When B asks A to cure the defects, A argues that the maximum period of Article 10.2(2)has expired with the consequence that no claim for damages can be made by B. A's argument is incorrect if B abstained from initiating judicial proceedings on account of A's waiver.

A and B have agreed to shorten the limitation period for claims arising from the non-conformity of A's performance to two years. After nine and a half years B discovers defects in A's performance, and A acknowledges its obligation to cure. B has another two years to pursue its claim before it is barred under Article 10.2(1).

A delivers non-conforming goods to B in November. B suffers loss resulting from the non-conformity because its customers complain and return the goods. Since two years later the total amount of loss is not yet clear, B pressures A to acknowledge its liability and in December of that year A complies with B's request. Two years later, there are still uncertainties regarding the exact extent of B's obligations towards its customers, some of whom have sued for compensation for consequential damages allegedly caused by the goods. B therefore turns to A again, who acknowledges its obligation to compensate B should the claims of B's customers be well-founded. B has three more years before its claims against A are barred.