Liability of a gardener: what to do?

Questioner

Good day, In August-September 2013, a new garden was created by a gardener. In our garden, a central role was given to the boxwood. However, the boxwood supplied (or the soil supplied by the gardener) contained a fungal disease, so that the boxwood is now dead. We informed the gardener in December 2013 that the boxwood was showing problems, but he only came to look at the boxwood in May 2014 and suggested spraying a pesticide. Although we indicated that we did not expect much from this, we agreed to a rescue attempt. Ultimately, the control was to no avail and the gardener is also convinced that it should be replaced by another (more expensive) plant species that resembles the boxwood. The gardener acknowledged that the boxwood contained mold. We approached the gardener in December about the problems and immediately indicated that we held him liable. In July 2014, to be on the safe side, I once again held the gardener liable by email. The gardener now proposes that we purchase the new plants at cost price and have them plant the plants at a reduced rate. I believe I have already paid for the planting (the boxwood), the delivery costs and the planting, so the gardener has to pay for the planting and the planting. However, I can imagine that I have to pay the additional costs of the purchase price of the new planting above the purchase costs of the boxwood. What costs do I have to pay and what costs does the gardener have to pay? Thanks in advance for your help.

Lawyer

What I find a pity is that you did not put the gardener in default in writing and what I also think is that you did not take any damage-limiting measures immediately after you discovered the fungus. You should also have summoned the gardener in the aforementioned letter to treat the bushes with an adequate agent as soon as possible or to come up with another solution. If he had not done so within two weeks, you could have threatened to have a third party carry out this assignment at his expense. This is all hindsight and we do not know whether the bushes would have survived in December. Do you not have an earlier email in which you state your complaints, because otherwise it will be difficult to recover the damages, to which you would in principle be entitled.

Questioner

Good day, In December, 1 box tree started having problems. We immediately indicated by email that there were problems. In this email, we also asked whether the other plants were at risk. This was indicated that this was not the case. A number of emails were written between December and May asking for an appointment to view the plants in our garden and for a solution because the situation was getting worse and the other boxwood was also being affected. The gardener indicated that control could only take place in April (this also appears on the internet). When asked, Consuwijzer indicated that we had to give the gardener the opportunity to rectify the situation through pest control, which is why we agreed to the pest control. Control should be done twice with an interval of 2-3 weeks. From the beginning we indicated that we wanted to replace the plants, but the gardener indicated that this was pointless as the fungus is now in the soil. Between December 2013 and now, photos have also been sent to the gardener several times indicating the deterioration and condition of the boxwood. Does this information make any difference in your assessment?

Lawyer

Yes, that makes a difference. What is at least the case is that the gardener sold you plants with a hidden defect that also led to consequential damage. What is reasonable now after the fruitless attempt at repair? The gardener must offer you new planting free of charge and compensate for the consequential damage, for example the replacement of the contaminated soil. A letter is required in which you put the gardener in default, give him time to repair, (this is possible with a date in the past) the statement that the default has occurred, a summons for the free replacement of the plants and the soil including working hours.