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

“Bol.com 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), Bol.com 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 Bol.com could not rely on the fact … 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

The capacity of contracting parties and (commercial) contracts

Introduction Under Dutch law, a general principle is that contracting parties conclude agreements in their own name, i.e. they conclude agreements for themselves. However, in Dutch commercial legal practice, contracting parties frequently act as representatives of a company. In the latter situation, confusion often arises as to whether a party has acted in his/her own name, or alternatively in his/her … Read more

Brexit and Private International Law (Part 2 of 2)

Since 1 January 2021, EU regulations simplifying cross-border litigation no longer apply in relation to the UK and – in most cases – to parties based in the UK. While some may have expected the way ahead to have cleared by now, the opposite is in fact true: at the time of writing this blog, neither the EU and UK … Read more

The qualification of a (commercial) contract

Introduction The Dutch Civil Code provides for several nominate contracts, for example: contractor agreements, purchase agreements, lease contracts, agency agreements and employment contracts. For these nominate contracts, the Dutch legislator has formulated specific legal rules in the Dutch Civil Code. In some cases, these legal rules are mandatory; i.e. the contracting parties cannot derogate from these legal rules. The purpose … Read more

Brexit and Private International Law (Part 1 of 2)

Since 1 January 2021, EU regulations simplifying cross-border litigation no longer apply in relation to the UK and – in most cases – to parties based in the UK. While some may have expected the way ahead to have cleared by now, the opposite is in fact true: at the time of writing this blog, the EU and UK (or … Read more

The Dutch Scheme – tax aspects

On 1 January 2021, the Act on confirmation of private restructuring plans (Wet homologatie onderhands akkoord, also known as the “WHOA”, hereinafter: the “Dutch Scheme”) came into effect. We discussed several aspects of the Dutch Scheme in our previous blogs. In order to come to a successful scheme, it is important to consider tax aspects at an early stage of … Read more

Exoneration clauses in commercial contracts: excluding indirect damage

Introduction In Dutch legal practice, contracting parties often agree on exoneration clauses in commercial contracts in which liability for indirect damage is excluded. However, the term indirect damage does not exist in the Dutch Civil Code, and in the Dutch language there is no generally accepted meaning for indirect damage. Conflicts therefore quite frequently arise between contracting parties in relation … Read more

Third-party effect of exoneration clauses in commercial contracts

Introduction Under Dutch law, the general principle is that contracts only have legal effects for the contracting parties themselves. In principle, contracts have no legal effects for third parties. If contracting parties agree on exoneration clauses in commercial contracts, the exoneration clauses will thus only have legal effects between those parties. Based on settled case law and pursuant to Dutch … Read more