Almost everyone has bought something on Marktplaats at some point. It is an accessible way to purchase second-hand items at an attractive price. Yet for some products, it is not the most suitable platform. Luxury goods are frequently counterfeited, and disputes about authenticity can arise after the fact. Who bears the burden of proof in such cases? The Amsterdam subdistrict court addressed this question in a case concerning an allegedly authentic Hermès bag.

What is the case about?

A private buyer purchases a Hermès Birkin from a private seller via Marktplaats. The seller confirms the bag's authenticity. They agree on a resolutive condition: if an authenticity check reveals that the bag is not genuine, the buyer will receive a refund. Two specialists in Indonesia conclude, after examining the bag, that it is a counterfeit. The buyer dissolves the purchase agreement.

Before the subdistrict court, the buyer claims repayment of the purchase price. However, the seller argues that the bag presented at the hearing is not the same as the one that was delivered.

Who must prove what?

The subdistrict court finds that this does not constitute a consumer sale. The seller is not acting in the course of a profession or business. The buyer's argument regarding a reversal of the burden of proof therefore does not hold, and the buyer must prove that the bag delivered was not a genuine Hermès. The inspection reports are insufficient: they provide no explanation of the examination process, the methods used, or the qualifications of the experts. The court therefore gives the buyer the opportunity to substantiate this further. The court offers practical guidance, pointing to unique serial codes, recognizable signs of wear, and objectively verifiable material such as photographs taken at the time of viewing and delivery, the Marktplaats listing, and the message history.

Contracting is not the same as proving

This interim judgment serves as a reminder that a resolutive condition concerning authenticity is useful, but not sufficient on its own. A purchase agreement is not dissolved as a matter of course. Particularly when an item is sent abroad after delivery, disputes may arise about the identity of the object, and therefore about whether the resolutive condition has been fulfilled.

To avoid ending up on the losing side, start building an "evidence file" from the outset. It is also advisable to agree in advance on which expert and which method will be used for authentication, who will bear the associated costs, and how to handle shipping and storage of the item. For greater certainty, buying through a professional reseller remains the safest option.