Remedies for breach of contract: what, when and how?

Dutch contract law provides three supplementary remedies for breach of contract: specific performance, damages as an alternative to performance, and termination of the contract. While these general remedies provide relief, the various criteria may be difficult to navigate. Our abstract flow charts guide an injured party through the process of invoking one of these remedies. Introduction Enforceable obligations are an … Read more

Usufruct on rent payments: Dutch Supreme Court limits freedom of contract within property law

A right of usufruct on a claim cannot be used to appropriate what is received through collection of that claim, as the Dutch Supreme Court ruled in its decision of 30 September 2022 (ECLI:NL:HR:2022:1331), in a case between KPN and Telecom Vastgoed about an alleged right of usufruct on rent payments. Background: telephone antennas KPN is a provider of mobile … Read more

Dutch Supreme Court decides against the pledgeability of non-transferable claims

Lawyers occasionally wonder how the law ended up as it is. We had that experience after the Dutch Supreme Court’s decision of 1 July 2022 (Rabobank/Ten Berge q.q.; ECLI:NL:HR:2022:984), regarding the possibility or impossibility of pledging a claim. The Supreme Court decided that claims that have been made non-transferable under property law in a contractual agreement between a creditor and … Read more

Courts take lenient approach to standing of ‘idealistic’ claim foundations under Dutch class action regime

Recent case law on the standing of ‘idealistic’ claim foundations shows courts’ lenient approach. Under the class action regime that entered into force in January 2020, claim foundations face stricter admissibility requirements as a counterbalance to their newly gained power to institute an opt-out damages claim. The legislator however also implemented an exemption to the requirements for ‘idealistic’ claim foundations, … Read more

Public Dutch Scheme automatically recognized in the EU from 9 January 2022

Since 9 January 2022, the public type of the Dutch Scheme is automatically recognized in the EU under the European Insolvency Regulation. This will be further discussed in this blog. Last year saw the introduction of the Dutch Scheme (we refer to our previous blogs for further details on the Dutch Scheme). The Dutch Scheme provides for two types of … Read more

Don’t get scammed, and don’t let scammers scam: the legal framework for mistaken payments clarified

“ mistakes scammers for Brabantia and pays €750,000’’ read headlines in The Netherlands in May 2021. After receiving an e-mail written in flawed Dutch (with some English in between), paid €750,493.09 to what it thought was a new bank account in Spain of an existing Dutch/Belgian supplier, Brabantia. The court ruled that could not rely on the fact … Read more

Unauthorized representation: liability of the intermediary

Introduction In Dutch commercial legal practice, intermediaries (authorized persons) frequently conclude agreements with a third party in the name of the principal. In doing so, agreements are concluded between the third party and the principal: the intermediary is not bound (article 3:66 (1) DCC). This is called authorized representation of the principal. If an intermediary exceeds his authority or acts … Read more

Draft bill on Expedited Liquidation Transparency presented

On 28 June 2021, the Minister of Justice presented a draft temporary bill on transparency of expedited liquidations (de tijdelijke wet transparantie turboliquidatie). As a result of the COVID-19 pandemic, the Minister expects that there will be an increase in the number of businesses that will need to be liquidated. Under Dutch law, the most efficient way to do this … Read more

Breaking off negotiations: obligation to renegotiate

Introduction As long as a contract has not yet been concluded, the parties’ freedom of contract is paramount.  In principle, the parties are free to decide whether to continue or break off negotiations. Nevertheless, circumstances may arise under which breaking off negotiations is unacceptable. One of the remedies available to the injured party in such a case is to seek … Read more

Unauthorized representation: commitment of the principal to the agreement

Introduction In Dutch commercial legal practice, contracting parties frequently act as representatives of a company. Generally, this representation is unproblematic, but intermediaries sometimes exceed their authority or act as representatives without the required authorization. The general principle in Dutch law is that unauthorized representatives cannot bind parties. However, this can vary under certain circumstances. Legal proceedings on the merits of … Read more