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A preamble is the introduction to an agreement in which you describe who the parties are, what they wish to achieve, and how the agreement came into being. The preamble itself does not contain enforceable provisions, but helps the judge and the parties to interpret the agreement correctly. For important contracts, it is therefore not a superfluous luxury.
What is a preamble?
The preamble — also known as the considerations or 'whereas' clauses — appears at the beginning of an agreement, often recognizable by phrases such as 'taking into account that'. It describes the background: the objectives of the parties, their expectations regarding the cooperation, and what preceded the agreement. The actual arrangements are not contained in the preamble, but in the articles that follow.
Is a preamble legally binding?
In principle, the preamble contains no independently enforceable obligations. Nevertheless, it is legally relevant: it plays a role in the interpretation of the contract. In the Netherlands, the court does not interpret agreements purely linguistically, but considers what the parties could reasonably expect from each other (the Haviltex standard). The preamble demonstrates that intention.
Why include a preamble?
In the event of a dispute regarding the meaning of a provision, a well-drafted preamble provides direction: it clarifies the objective the parties had in mind. This prevents discussion and helps to reasonably fill gaps in the contract. This is particularly valuable in complex or long-term collaborations.
What should you look out for?
Keep the preamble factual and in line with the content of the contract. Contradictions between the preamble and the actual provisions work against you. If you want something to be binding, do not put it in the preamble, but in an article.
Frequently Asked Questions
Does every agreement need to have a preamble?
No. For simple agreements, a preamble can be omitted. For important, complex, or long-term contracts, it is advisable because it supports the interpretation.
Can a preamble work against me?
Yes, if he suggests something other than the actual provisions. Therefore, ensure that the considerations are consistent with and do not conflict with the content of the contract.
What is the difference compared to the definitions?
The preamble outlines the background and intent; the definitions provide the exact meaning of the terms used. Both contribute to a clear explanation, but fulfill different roles.
Want to have a strong contract drawn up?
Our legal experts draft agreements that are correct down to the preamble and definitions. Want to know more about your legal position? View our contract lawteam or schedule a free consultation.
