There is a lot involved in the (re)purchase of a house. Sometimes, for example, there are defects in a property that people want to see fixed before completion. In such cases, it is wise to include a resolutive condition in the purchase agreement. This way, the seller can be obliged to repair these defects (or have them repaired). If he does not, the buyer has the right to dissolve the purchase agreement.
Such a resolutive condition was at the centre of a dispute between buyer and seller which was submitted to the 's-Hertogenbosch Court of Appeal. The purchase agreement contained the following article:
"This sale can be rescinded if the buyer concludes before the notarial transfer that the repair works to the kitchen, study and bathroom have not been restored aesthetically or to soundness.
Seller has a best-efforts obligation to restore the mutually known damage to kitchen, study and bathroom (water damage) to original condition."
The Court was asked how this article should be interpreted: is there an obligation of effort or an obligation of result? According to the Court, the point to be considered is the meaning that the parties were reasonably entitled to assign to the article in the given circumstances, and what they were reasonably entitled to expect from each other in that context.
The seller argued that it had only agreed that it would endeavour to rectify the problems known to both parties. On the contrary, the buyer argued that there was an obligation of result, as the article would be a firm commitment that the defects in the house would be remedied by the seller before surrender.
The Court of Appeal considered that there could be no question of an obligation of result based on the Article alone; that provision explicitly speaks of an "obligation of effort" and not of a guarantee about the repair. It also weighed in that the parties arrived at the creation of the article in joint consultation. The court decided to give the buyer a burden of proof: the buyer must better substantiate its claim in order to reach a conclusion.
The fact that the contract explicitly talks about an obligation of best efforts is apparently not enough to argue that there cannot be an obligation of result. This means that it is all the more important to have a clear idea of what one is aiming for when (selling) a house: parties must have the same idea when including a certain obligation in order to avoid disputes like the one in this case.
ECLI:NL:GHSHE:2019:4540