In this context, ordinary trade means that the intermediary has purchased the goods for himself and subsequently resold them.
The Danish Sales Act applies to such transactions. The Danish Sales Act stipulates that the intermediary is obliged to examine the goods when they are received, and the intermediary is obliged to immediately complain to the manufacturer/importer if the goods suffer from a defect.
If the defect could have been discovered during a normal inspection of the goods upon receipt, the intermediary cannot later make a claim for defects against the manufacturer/importer. The intermediary cannot in good conscience simply store the goods without examining them in more detail. If the goods are packaged and are to be sold to the end customer in packaging, however, the intermediary is not expected to remove the packaging to examine the goods.
If, on the other hand, the defect is considered hidden, so that it would not have been discovered during a normal inspection, then the intermediary's right of complaint will in any case lapse as a general rule after two years. The first exception to this is if the manufacturer/importer has granted the intermediary an extended right of complaint that is valid for a longer period, and the second exception is that if the manufacturer/importer does not immediately object to the late complaint and instead initiates substantive negotiations with the intermediary, then the deadline for timely complaints may be suspended.
As a seller, you should therefore always immediately protest in writing against late complaints if you suspect that the complaint is too late.
The problem for the intermediary is obvious. The intermediary can exercise the right of complaint against the manufacturer/importer for a maximum of two years, but from the day the intermediary sells the goods to the end user, the end user can exercise his right of complaint for two years, and thus also at a time when it is too late for the intermediary to continue the claim against the manufacturer/importer. The intermediary risks being caught, regardless of whether the intermediary should have discovered the defect at the time of purchase.
This article deals with sales on commission and thus deals with cases where a manufacturer/importer sells to an intermediary, who subsequently sells to the end user. In such cases, it is not inconceivable that the intermediary simply stores the goods until they can be resold, and the intermediary rarely carries out a thorough examination of the purchased goods. But what if several years pass before the goods are resold to the end user, and only the end user discovers defects in the goods?
If, on the other hand, the goods are sold on commission, the situation is different.
The intermediary is now instead a commission agent, which means that the commission agent acts in his own name but on behalf of the manufacturer/importer. The commission agent is thus, as in ordinary trade, liable to the end user. The end user cannot make a claim directly against the manufacturer/importer when trading on commission.
However, until the commission agent sells the goods, they remain the property of the manufacturer/importer. The ownership has never been with the commission agent, and the commission agent has not purchased the goods within the meaning of the Danish Sale of Goods Act.
This means that the 2-year complaint period against the manufacturer/importer only runs from the time the end user purchases the goods. The end user must complain to the commission agent, but the latter can forward the complaint to the manufacturer/importer to the same extent. The commission agent therefore does not risk that his right to complain has lapsed at an earlier time than the end user's.
For the end user, it is therefore irrelevant whether the goods are purchased in general trade or as part of a commission agreement. For the intermediary, however, the commission agreement results in an improvement in relation to the right to make a complaint against the manufacturer/importer. However, other provisions in the commission agreement may be less advantageous for the intermediary, which is why the intermediary, if he has the choice, must assess in each individual case whether it is most advantageous to purchase goods for resale in general trade or as part of a commission agreement.
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