Agreements

Agreements

Examples of obligations in law are: a cooperation agreement, a purchase agreement, a franchise agreement, or a loan agreement, etc.

There are no formal requirements for drawing up an agreement. Parties may choose for themselves whether to agree on an agreement orally or establish it in writing. Parties may also choose for themselves what is included in an agreement.

When an agreement exists, one party must perform a service and the other party is entitled to a service. An example is that you have agreed that one party will supply a sofa and the other party will pay for the sofa.

When a party fails to adhere to the agreements set out in a contract, this constitutes a 'breach of contract'.
A breach of contract is also known as non-performance. In the event of non-performance, one party suffers damage and the other party is liable for that damage. The party suffering the damage is also referred to as the injured party.

We have extensive experience in contractual and non-contractual dispute resolution through providing advice, conducting negotiations, or litigation. We have an experienced team of lawyers and legal experts in the field of contract law. Please contact us to discuss the possibilities.

How is an agreement formed?

An agreement arises through offer and acceptance (Article 6:217 of the Dutch Civil Code). The offer made by one party and its acceptance by the other party must align: there must be a meeting of minds. In this regard, the intention to enter into the agreement and the declaration regarding it must be in agreement (Article 3:33 of the Dutch Civil Code), while the counterparty may also rely on what it could reasonably infer from the declaration or conduct (Article 3:35 of the Dutch Civil Code).

In the phase before an agreement is finalized – the pre-contractual phase – parties may already become bound by the requirements of reasonableness and fairness. Breaking off advanced negotiations can, under certain circumstances, be unlawful. Whether you are an international group setting up a complex consortium or the baker on the corner signing a lease for new premises: our lawyers and in-house counsel assess whether you are already bound and what room for maneuver you still have.

Interpretation of agreements: the Haviltex criterion

If parties disagree on exactly what they agreed upon, it comes down to the interpretation of the agreement. Since the Haviltex judgment (Supreme Court, March 13, 1981), such interpretation depends not only on the linguistic meaning of the text, but also on the meaning that the parties could reasonably attribute to the provisions in the given circumstances, and on what they could reasonably expect from one another.

Factors to which the parties belong and the legal knowledge that could reasonably be expected of them play a role in this. A contract between two professional parties is interpreted differently than an agreement with a consumer or a small business owner. Our legal experts anticipate this when drafting your contracts, ensuring that the intent is clearly established and subsequent disputes are avoided.

What if the agreement is not fulfilled?

If a party fails to fulfill its obligations, or does so late or properly, this constitutes a breach of contract. The injured party then has various options. It can demand performance, claim damages (Article 6:74 of the Dutch Civil Code), or dissolve the agreement (Article 6:265 of the Dutch Civil Code). These remedies can often be combined.

Default is usually required for compensation and dissolution. Default generally only occurs after the debtor has been put in default: a written demand in which a reasonable period for performance is granted (Article 6:81 and Article 6:82 of the Dutch Civil Code). In some cases, for example in the case of a fixed deadline, default occurs by operation of law. An incorrect or insufficient notice of default can undermine your position. Read more about failure to perform, the right to compensation , and the dissolution of the agreement.

Defects of will: error, fraud, coercion, and abuse of circumstances

An agreement is binding in principle, but not under all circumstances. If a contract was concluded under the influence of a defect of will—error, fraud, coercion, or abuse of circumstances—it can be annulled. Conflict with the law, good morals, or public order can also affect the validity of an agreement. Whether you are dealing with a supplier who withheld essential information or with a counterparty who abused your dependent position: our lawyers assess whether there are grounds to challenge the agreement. You can read more about this on our page regarding error, fraud, or abuse of circumstances.

General terms and conditions and reasonableness and fairness

General terms and conditions apply to many agreements. Whether those conditions apply depends, among other things, on whether they were provided in a timely manner and whether a clause is not unreasonably burdensome (Article 6:231 et seq. of the Dutch Civil Code). In addition, the principles of reasonableness and fairness apply to every agreement: they can supplement obligations and, in exceptional cases, may set aside an agreed clause if doing so would be unacceptable according to standards of reasonableness and fairness (Article 6:248 of the Dutch Civil Code). We review your contract terms against these criteria and, where necessary, draft watertight general terms and conditions.

Our approach: from international corporation to the baker on the corner

MKB Juristen works with mixed teams of lawyers and in-house counsel. This combination ensures that we are not only legally strong but also think commercially. We draft agreements, review contracts presented to you, negotiate on your behalf, and litigate where necessary. For listed corporations, we handle complex cooperation and acquisition contracts; for small business owners, we create clear agreements that prevent problems. This page is part of our expertise in Contract Law. Please feel free to contact us to discuss your situation.