Contracting for bad weather
Last week, for the second time this winter, the Netherlands was blanketed by a thick layer of snow and brought to a standstill by the busiest rush hour on record.
Last week, for the second time this winter, the Netherlands was blanketed by a thick layer of snow and brought to a standstill by the busiest rush hour on record. When snow leads to cancelled appointments and broken promises, that can cost money. Who’s supposed to pay for this?
The basic rule is that contractual promises must be kept. If one of the contracting parties fails to do so, he must compensate any loss or injury the other party suffers, unless the blame for his failure to comply lies elsewhere.
The law states that a party cannot be blamed for failing to satisfy obligations if the failure was caused by force majeure. Whether force majeure applies depends on the circumstances of the case. Legislation provides some examples, but force majeure remains a vague concept and causes much uncertainty in practice. For example, what happens if a system administrator’s computer network goes down, leaving him unable to resolve customers’ problems for a day? And what if those customers are unable to keep their promises as a result?
Parties can agree in a contract (or in standard terms and conditions) what constitutes force majeure in their dealings with each other. In that case, the legislation acts as a safety net for any areas not covered by contract. Weather conditions, traffic queues, break-ins, fire or power shortages; these are just some examples that can be included in force majeure provisions.
A sensible approach is to make a list of all the risks affecting you and ensure you have a solution prepared. You can classify these situations as force majeure in your standard terms and conditions. You may be able to get the other party to agree that you are only obliged to make efforts to achieve a target, without guaranteeing a particular result. Not every customer will settle for that, though. All the more reason to ensure that your standard terms and conditions apply and all the legal aspects of your order confirmation are watertight.
Some success stories of
Mr. Martijn de Schepper
A turbulent takeover
A turbulent takeover A businessman for whom I had worked previously came to me because he wanted to help a friend who was having difficulties with his business partner. He tried to intervene when the partner attempted to eject his friend out of his own company. He even offered to buy the
Fingers burned in the ashes of a house
Fingers burned in the ashes of a house A man telephoned me in a panic because his house had just burned down and an insurance expert was on his doorstep asking him all kinds of strange questions. The expert then produced a report suggesting on various grounds, both comprehensible and
An efficient share sale
An efficient share sale An American group with a number of Dutch subsidiaries wished to sell shares back to a fellow shareholder. As the approval of the American parent company was required, I drafted the share purchase agreement in English, to save time and aid efficient communication. The
Post-insolvency restart organised in advance
Post-insolvency restart organised in advance A client with two companies in two different cities realised that one of the two locations was not doing well; the economic situation had caused a drop in sales. His business operated in a sub-sector of the construction industry. He had found a
Even a generous payment arrangement can’t be open-ended
Even a generous payment arrangement can’t be open-ended A German client was faced with a customer who failed to pay. First the customer avoided my client, then he invented excuses and finally he admitted that he owed money but said that he was unable to settle the debt in a single
The unreliable partner
My client, who specialised in the import of local beer originating from his native country in Central America, had entered into a joint venture with a Dutch man in order to finance his business. The parties had set up a general partnership as the basis for their joint venture, though they did
Driver pays for his dishonesty
Some years ago a German couple came to me for assistance. While holidaying in the Netherlands, a Dutch man had driven into their car. Luckily they were unhurt. However, the costs of repairing their car (removing the dents and partial re-spraying) were significant. Immediately after the
The director facing a liability claim
The director facing a liability claim When a foundation doing community work became insolvent, a really nice guy (our client) decided to continue the foundation’s activities through a limited company and purchased the foundation’s fittings and equipment etc. from the liquidator.
Disagreement between partners
Disagreement between partners A business partner who frequently takes all the money out of the bank account and transfers it to his own company, refuses to discuss anything and fails to pay tax assessments. These are just some of the problems that my client came to me to seek help with. The
Protecting a duped brewery
Protecting a duped brewery Breweries often finance fittings and drink dispensing systems for bars that serve their beer, with the intention of recovering the investment gradually over a number of years. Sometimes though, if the bar owner decides to sell or the business doesn’t do well,
Keeping a business afloat when the trust is gone
Keeping a business afloat when the trust is gone Someone I had encountered earlier in my legal career came to me because of disagreements with his business partner. They had an online shop that was doing very good business, but they no longer trusted one another. From the accuracy of the
Lawyer from famous legal family forced to pay up in the end
Some time ago, I used a bankruptcy application to collect a debt owing to a client by a lawyer who is a member of a well-known family of attorneys. A court judgment had been issued granting the debt claim and no appeal was made, establishing that the debt claimed was due. One of the supporting
Unusual provision in agreement is still binding
Buying a house is a bit more complicated than buying a loaf of bread. Some clients whom a colleague and I represented discovered this at first hand. Our clients had found the house of their dreams. As they had started their business less than three years earlier, the banks wouldn’t
Partner’s withdrawal not such a smart move!
If you don’t have enough money to fund your business yourself, there are various ways to obtain the necessary capital. One of these is to set up a limited partnership. This is a partnership with one or more general partners, who are actively involved in running the business, and one or
Enforcing a judgment that should never have been issued
A Dutch company I represented had provided services to a German customer. The invoice that was sent to the customer for this work was not paid. As my client’s standard terms and conditions stated that the services were carried out in the Netherlands, under European legislation we were
Employee refuses termination settlement offered and ends up with less in court
My client was dissatisfied with the performance of one of her employees. A programme of coaching failed to bring about the desired improvement, so she believed that there was no solution but to terminate his employment contract. When my client discussed the situation with the employee, he
The misleading estate agent
My client owned a house together with his wife who was terminally ill. They could not pay the mortgage anymore. One day, my client walked past an estate agent's office. The estate agent accompanied my client to his house, viewed it in five minutes and made an offer, which my client was to
Paid website for antique furniture dealer
A communication agency in the Eindhoven area built a complicated website for an antique furniture dealer. Because the dealer refused to cooperate in providing certain data the website could not be completed. On the basis of the recorded order agreements, the communication agency decided to