Contract Law: A Comparative Introduction, Second Edition by J.N Smits

Please see the below supplementary resources for this title..

Civil Code (Burgerlijk Wetboek) (selection)

Art. 1:114

Marriage contracts may both be made by future spouses prior to entry into marriage and by spouses during their marriage.

Art. 1:115

In order to be valid, marriage contracts must be entered into by notarial deed. (…)

Art. 1:233

Minors are persons who have not reached the age of eighteen and are not married or registered, nor have been married or registered or have been declared of age as a result of the application of art. 253ha.

Art. 1:234

In so far as the law does not provide otherwise, minors have the legal capacity to perform juridical acts, provided they act with the consent of their legal representative.

Consent may be granted only for a specific juridical act or for a specific purpose.

Consent is presumed to have been granted to a minor if it relates to a juridical act of which it is generally accepted practice that it is performed independently by minors of his age.

Art. 1:378

An adult may be placed under wardship (curatele) by the court on the ground of:

a mental disorder due to which the mentally disturbed adult is unable or impeded, whether or not at intervals, from properly looking after his interests;

reckless spending;

habitual alcohol abuse, as a result of which:

1° his interests are not properly taken care of;

2° he repeatedly causes a public offence, or

3° he endangers his own safety or that of others.

(…)

Art. 1:381

(…)

An adult under wardship still has the legal capacity to perform juridical acts with the consent of his legal guardian (curator) in so far this legal guardian himself has the power to perform these juridical acts for the adult under guardianship. The legal guardian may only grant his consent for a specific juridical act or for a specific purpose. His consent for juridical acts for a specific purpose must be given in writing.

Art. 1:383

The court that orders an adult guardianship shall at the same time or, if it feels that it has not yet been sufficiently informed, as soon thereafter, appoint a legal guardian for the involved adult. (…)

Art. 3:32

Every natural person has the capacity to perform juridical acts, in so far as the law does not provide otherwise.

A juridical act performed by a person who has no legal capacity can be avoided. However, a unilateral juridical act of an incapable person not addressed to one or more specific persons is void.

Art. 3:33

A juridical act requires an intention to create legal relations, which intention becomes manifest in a declaration.

Art. 3:34

If a person whose mental capabilities are permanently or temporarily impaired makes a declaration, the intention corresponding to that declaration is deemed to be absent if the impairment prevented a reasonable evaluation of the interests involved with the act, or if the declaration was made under influence of that impairment. A declaration is presumed to have been made under the influence of the impairment if the juridical act was disadvantageous for the mentally disturbed person, unless the disadvantage was not reasonably foreseeable at the time the juridical act was performed.

A juridical act which lacks such intention is avoidable. However, a unilateral juridical act not addressed to one or more specific persons is void.

Art. 3:35

Against him who has interpreted another person’s declaration or behaviour, in accordance with the meaning that he could reasonably give to it in the circumstances of the case, as a declaration of a certain content of this other person addressed to him, cannot be invoked the absence of an intention in that declaration.

Art. 3:37

Unless provided otherwise, declarations, including notices, can be made in any form and can be inferred from conduct.

A declaration which must be made in writing can also be made by bailiff’s notification, unless the contrary follows from the provision concerned.

A declaration addressed to a specific person must have reached that person in order to be effective. Nevertheless, if such a statement has not reached this person or it did not reach him in time, and this is merely a result of his own actions, of the actions of other persons for whom he is responsible, or the result of other circumstances which justify that he is accountable for any disadvantage caused by it, then this statement will still have its originally intended legal effect.

If a declaration has been inaccurately communicated by a person or means of communication designated by the sender, the declaration as received by the addressee is regarded as the declaration of the person who made it, unless the means of communication was used on instruction of the addressee.

Withdrawal of a declaration addressed to a specific person only has effect if this withdrawal reaches that person prior to or at the same time as the declaration that is withdrawn.

Art. 3:39

Unless the law provides otherwise, a juridical act that is not performed in accordance with formal requirements, is void.

Art. 3:40

A juridical act that, by its contents or purpose, violates good morals or public policy is void.

A juridical act that violates a mandatory statutory provision is void; if, however, this statutory provision is only intended to protect one of the parties to a multilateral juridical act, the juridical act is only avoidable; in both cases this applies in so far as the provision does not imply otherwise.

Section 2 does not apply to statutory provisions which do not intend to invalidate juridical acts contrary to these.

Art. 3:44

A juridical act is voidable when it has been entered into as a result of threat, fraud or abuse of circumstances.

Threat occurs when someone induces another person to execute a certain juridical act by unlawfully threatening him or a third party with harm to his person or property. The threat must be of such a nature that a reasonable person would be influenced by it.

Fraud occurs when someone induces another person to execute a certain juridical act by deliberately making an incorrect statement, by deliberately concealing a fact that had to be disclosed, or by another artifice. Recommendations in general terms, even if they are untrue, do not in themselves constitute fraud.

Abuse of circumstances occurs when someone knows or should understand that another person is induced to execute a juridical act as a result of special circumstances, such as a state of necessity, dependency, thoughtlessness, abnormal mental condition or inexperience, and promotes the realisation of that juridical act, although what he knows or should understand should lead him to refrain from doing so.

(…)

Art. 3:84

Transfer of property requires delivery pursuant to a valid title, made by the person who is entitled to dispose of the property.

The title must describe the property with sufficient certainty.

(…)

Art. 3:89

The delivery, required for the transfer of immovable property, takes place by way of a notarial deed, followed by the registration of this deed in the appropriate public registers. Both the transferee and the transferor may ask for registration. (…)

Art. 3:260

A mortgage is established by a notarial deed drawn up between the parties in which the mortgagor grants the mortgagee a mortgage over registered property, followed by the registration of this deed in the appropriate public registers. (…)

Art. 3:290

The right of retention is the power given to the creditor, in the cases specified by law, to withhold the performance of an obligation to deliver a good to the debtor until the claim is satisfied.

Art. 3:296

Unless it follows otherwise from the law, the nature of the obligation or a juridical act, the person who is obliged to give, to do or not to do something, is held to do so by the court upon the request of the claimant.

If the obligation is subject to a condition or a time-limit, the debtor can be ordered to perform subject to this condition or time-limit.

Art. 4:42

A last will is a unilateral juridical act with which the testator makes a disposition that is to be effective after his death and that is regulated in Book 4 of the Civil Code or is recognised by law.

The testator may always unilaterally revoke a previously drafted will.

A testamentary disposition can be made and revoked only by way of a last will and only by the testator in person.

Art. 4:94

Except for what is provided for in the articles 97-107, a last will can only be made by way of a notarial deed or by way of a private deed that is given in custody to a notary.

Art. 4:95

A person who has not been able to read his last will due to ignorance or another cause cannot make a valid last will by private deed.

A last will made by private deed must be signed by the testator personally. If a last will made by private deed contains more than one page and is written by another person than the testator personally or by mechanical means, each page must be numbered and certified with the signature of the testator.

A last will made by private deed must be handed over by the testator to a notary. The testator must declare, when doing so, that the presented private deed contains his last will and that the requirements of the previous section have been met. When the private deed is presented in a closed envelope or in another closed form, the testator may also declare, when handing it over to the notary, that it may be opened only if specific conditions have been fulfilled on the day of his death.

The notary draws up a notarial deed of the declarations of the testator and of their custody, to be signed by the testator and the notary. (…)

Art. 6:1

Obligations can only arise if this results from the law.

Art. 6:2

The creditor and debtor are obliged to behave as against each other in accordance with the requirements of reasonableness and fairness.

A rule binding upon the parties by virtue of law, common practice or a juridical act does not apply to the extent that, in the given circumstances, this would be unacceptable according to criteria of reasonableness and fairness.

Art. 6:38

If no time of performance has been agreed upon for the performance, the debtor may immediately perform the obligation and the creditor may immediately demand performance.

Art. 6:74

Any non-performance of an obligation obliges the debtor to compensate the creditor for the damage the latter suffers as a result, unless the non-performance is not attributable to the debtor.

In so far as performance is not yet permanently impossible, section 1 of this Article only applies with due observance of what is regulated in subchapter 2 on default of the debtor.

Art. 6:75

Non-performance is not attributable to the debtor, if it cannot be ascribed to he is not to blame for it, nor accountable for it by virtue of statute, a juridical act or generally accepted societal norms.

Art. 6:80

The effects of a non-performance set in even before the claim of the creditor is due:

if it is certain that performance will be impossible without breach;

if the creditor must conclude from a statement of the debtor that he will not perform in conformity with his obligation; or

if the creditor has good reasons to fear that the debtor will not perform in conformity with his obligation and the debtor does not comply with a written notice of the creditor in which the debtor is asked to confirm, within a reasonable time, that he is willing to perform in conformity with his obligation. The grounds that gave the creditor good reasons to fear a non-performance of the debtor must be mentioned in this notification.

(…)

The original time at which the obligation becomes due continues to apply to the obligation to pay for damages which results from the delay and from the attribution of the non-performance to the debtor with regard to the time as of which he is in default.

Art. 6:81

The debtor is in default during the time that the performance is lacking after it has become due, provided that the requirements of article 6:82 and 6:83 are met, except in so far as the delay cannot be attributed to him or it has become permanently impossible to perform the obligation.

Art. 6:82

The debtor is in default when he is held liable for his non-performance by a written notice in which he is granted a reasonable period of time during which he still may perform, and he nevertheless fails to perform within that period.

If the debtor is temporarily unable to comply with his obligation or if it is clear from his attitude that it will be useless to grant him a reasonable period of time in order to perform, the written notice can take place by way of a written announcement which makes clear that he will be held responsible for the non-performance.

Art. 6:83

The debtor is in default without the need to send a written notice:

when a time is set for performance and the debtor fails to comply with this, unless the set time has a different purpose.

when the obligation results from tort or when it has the purpose to pay damages as meant in Article 6:74 section 1, and the obligation is not performed immediately;

when the creditor can conclude from a statement of the debtor that he will not perform in conformity with his obligation.

Art. 6:91

A penalty clause is every contractual provision stipulating that the debtor, if he fails to perform his obligation, is to pay a sum of money or perform in another way, regardless of whether this sum of money or other performance is meant as compensation for damages or only as an incentive to perform the obligation.

Art. 6:94

The court may, upon the request of the debtor, reduce the contractual penalty if fairness manifestly requires this, on the understanding that it cannot grant the creditor less than the compensation for damages that would have been due by virtue of law.

The court may, upon the request of the creditor, grant a compensation for additional damages in addition to a contractual penalty which has replaced the compensation for damages that would have been due by virtue of law, if fairness manifestly requires this.

Every contractual provision in derogation from section 1 is void.

Art. 6:95

The damage that is to be compensated by virtue of a statutory obligation to repair damages, consists of material damage and other loss, the latter in so far as the law allows compensation for such damage.

Art. 6:213

A contract in the sense of this Section is a bilateral juridical act by which one or more parties oblige themselves towards one or more other parties.

The statutory provisions of this Section do not apply to contracts between more than two parties, in so far as the purpose of the provision, in view of the nature of the contract, does not allow so.

Art. 6:217

A contract is concluded by an offer and the acceptance thereof.

Articles 6:219:225 apply, unless the offer, another juridical act or common practice implies differently.

Art. 6:219

An offer may be revoked, unless it contains a time period for its acceptance or its irrevocability follows from the offer in another way.

An offer can only be revoked as long as it has not been accepted and the offeree has not yet sent a statement accepting the offer. When the offer contains the message that it is made without being binding on the offeror, it may be revoked after it has been accepted, provided that the revocation takes place immediately after the acceptance.

A contractual provision in which one of the parties binds itself to enter into a specific contract if the other party wishes so, is regarded as an irrevocable offer.

Art. 6:220

An offer for a reward that stands for a limited time can be revoked or altered in case of significant reasons.

In case an offer for a reward has been revoked or altered, the court may grant a fair compensation to someone who has started to prepare the performance.

Art. 6:221

An oral offer lapses if it is not immediately accepted, a written offer if it is not accepted within a reasonable time.

An offer lapses if it is rejected.

Art. 6:225

The acceptance of an offer, made under different or additional conditions, is regarded as a new offer and as a rejection of the original one.

If a reply to an offer that is intended as an acceptance only differs from the offer on minor points, the reply is seen as a valid acceptance, leading to a binding contract in accordance with the acceptance, unless the offeror immediately objects against the differences.

Where offer and acceptance refer to the application of different general conditions, the second reference is without effect if it does not also explicitly reject the application of the general conditions referred to in the first reference.

Art. 6:227

The obligations the parties take upon them must be determinable.

Art. 6:227a

If a statutory provision implies that a contract can only be formed validly in writing, then this formal requirement is also met if the contract is entered into by electronic means and:

the contract is and remains accessible for the parties;

the authenticity of the contract is sufficiently guaranteed;

the moment at which the contract was formed, can be determined with sufficient certainty; and

the identity of the parties can be established with sufficient certainty.

Section 1 does not apply to contracts for which the law requires the intervention of a court, a public authority or a person whose profession it is to exercise a public responsibility.

Art. 6:228

A contract which has been entered into under the influence of a mistake and which would not have been concluded had there been a correct assessment of the facts, is avoidable:

if the mistake is caused by information given by the other party, unless this party could assume that the contract would have been concluded even without this information;

if the other party, in view of what it knew or ought to have known about the mistake, should have informed the mistaken party;

if the other party, at the moment of concluding the contract, has based itself on the same incorrect assumption as the mistaken party, unless the other party, even if there had been a correct assessment of the facts, would not have had reason to understand that the mistaken party would therefore be prevented from entering into the contract.

The avoidance cannot be based on a mistake as to an exclusively future fact, or on a mistake for which, given the nature of the contract, common opinion or the circumstances of the case, the mistaken party should remain accountable.

Art. 6:238

(…)

In a contract as meant in Articles 6:236 and 6:237 [a consumer contract], the provisions must always be drafted in plain and intelligible language. Where there is doubt about the meaning of a contractual provision, the interpretation most favourable to the counterparty shall prevail. (…)

Art. 6:248

A contract not only has the effects agreed upon by the parties, but also those which, according to the nature of the contract, result from statute, common practice or the requirements of reasonableness and fairness.

A rule binding upon the parties as a result of the contract does not apply to the extent that, in the given circumstances, this would be unacceptable according to criteria of reasonableness and fairness.

Art. 6:258

Upon the demand of one of the parties, the court may adapt the effects of the contract or terminate the contract in whole or in part on the basis of unforeseen circumstances which are of such a nature that the other party, according to criteria of reasonableness and fairness, may not expect that the contract be maintained in an unmodified form. The court may give retroactive effect to the adaptation or termination.

The adaptation or termination of the contract is not granted to the extent that the party invoking the circumstances, in view of the nature of the contract or common opinion, should come for account of the party who invokes them.

(…)

Art. 6:261

A contract is bilateral if each of the parties agrees to an obligation in order to obtain the performance to which the other party obliges itself towards the first party.

The provisions for bilateral contract apply accordingly to other legal relationships which aim for the mutual execution of performances, in so far as the nature of such relationships allows this.

Art. 6:262

If a party does not perform its obligation, the other party is entitled to withhold the performance of its own related obligation.

In case of a partial or incorrect performance, withholding performance is only allowed in so far as this is justified by the other party's failure to perform.

Art. 6:263

The party who is to perform first, is nevertheless entitled to withhold performance of its own obligation if it has good reason to fear that the other party will not perform his obligation and this good reason is based on information it has received after the parties entered into the contract.

In the event that there is a good reason to fear that performance will only take place partially or incorrectly, withholding performance is only allowed in so far as the non-performance is justified by the other party's failure to perform.

Art. 6:265:

Every non-performance of a party of one of its obligations gives the other party the right to terminate the contract in full or in part, unless the non-performance, given its specific nature or trivial importance, does not justify this termination and its consequences.

In so far as performance is not permanently or temporarily impossible, the right to terminate the contract only arises when the debtor is in default.

Art. 6:267

Termination takes place by way of a written declaration of the party who is entitled to terminate the contract. If the contract was concluded by electronic means, it may also be terminated by way of a declaration by electronic means. Article 6:227a, section 1 applies accordingly.

The termination can also take place by court order at the request of the party who is entitled to terminate the contract.

Artikel 269

The termination does not have retroactive effect, except where an offer to perform, made at a time the creditor already brought an action for termination, shall have no effect if he decides to terminate the contract.

Art. 6:270

A partial termination implies a proportional reduction of the mutual performances in quantity or quality.

Art. 6:271

Termination releases the parties of the obligations affected by it. In so far as these obligations have already been performed, the legal basis for performance remains intact, but the law imposes an obligation on parties to undo the performance they already received.

Art. 7:1

Sale is the contract under which one party obliges itself to deliver a good and the other party to pay a price in money therefore.

Art. 7:2

The purchase of an immovable good or a part thereof that is intended to be used for habitation, has to be concluded in writing if the buyer is a natural person who, when entering into the agreement, does not act in the course of his professional practice or business.

The deed, drawn up for this purpose between the parties, or a copy thereof, must be handed over to the buyer in return for, if the seller desires so, a dated receipt. During three days after the deed or its copy has been handed over to the buyer, the buyer has the right to terminate the purchase. When within six months after the buyer has used this right, the same parties enter again into a new sale agreement related to the same immovable thing or part of it, then this right of termination does not arise again.

(…)

Art. 7:4

If the sale has been concluded without determination of the price, the buyer has to pay a reasonable price; the prices usually charged by the seller at the time of the conclusion of the contract are taken into account in determining this price.

Art. 7:17

The delivered good must be in conformity with the contract.

The good is not in conformity with the contract if it does not have the qualities that the buyer, given the nature of the good and the statements of the seller about it, could have expected on the basis of the contract. The buyer may expect that the good has the qualities that are necessary to be able to use it in a normal way and the presence of which he did not need to doubt, as well as the qualities that are necessary to be able to use it in the specific way that the buyer intends to make of it as foreseen in the contract.

(…)

Art. 7:39

The seller who has transferred a movable thing, not being registered property, to the buyer, may reclaim it as his own property by means of a written declaration addressed to buyer for this purpose, if the buyer has failed to pay the purchase price and, in connection with this, the requirements for a termination as referred to in Article 6:265 are met. Through this declaration the sales agreement is terminated and the right of ownership of the buyer or his successor ends; the Articles 6:271, 6:273, 6:275 and 6:276 apply accordingly.

(…)

Art. 7:60

The creditor or, where relevant, the credit intermediary shall provide the consumer in good time before the consumer is bound by any credit contract or relevant offer, with the pre-contractual information as required by Articles 5 and 6 of the Directive and in the way as required according to these Articles. (…)

Where the creditor or, where relevant, the credit intermediary does not observe the provisions of section 1 (…), he conducts an unfair commercial practice as referred to in Article 6:193b.

Art. 7:204

(…)

A defect is a quality or characteristic of the leased property or another circumstance not attributable to the lessee, as a result of which the leased property cannot provide the lessee the enjoyment which a lessee, at the moment on which the lease agreement was concluded, can expect of a well maintained property of the kind to which the lease agreement relates.

Art. 7:206

If the lessee desires so, the lessor must cure a defect, unless this is impossible or would require expenditures which in the given circumstances cannot reasonably be expected to be made by the lessor.

Art. 7:653

A contractual provision between the employer and the employee restricting the employee's right to work in a certain way after the end of the employment agreement is only valid if the employer has agreed so in writing with an adult employee.

The court may declare void such a contractual provision entirely or partially on the ground that the employee is unfairly disadvantaged by that provision in proportion to the interest of the employer that is protected by that provision.

When the employer is liable for damages because of the way in which the employment agreement has ended, he cannot derive any rights from a contractual provision as meant in section 1.

If a contractual provision as meant in section 1 forms a major objection for the employee to perform work other than in service of the employer, the court may at all times order that the employer must pay compensation to the employee for the duration of the restriction. The court determines the amount of this compensation in fairness in view of the circumstances of the case; it may permit the employer to pay the compensation in instalments to be set by court. When the employee is liable for damages because of the way how the employment agreement has ended, then the employer cannot be charged with the before meant compensation.

Art. 7:656

At the end of the employment agreement the employer is obliged, upon request, to hand over a reference to the employee.

This reference mentions:

the kind of work that the employee has performed and his working hours per day or per week;

the commencing date and the ending date of the employment service;

a declaration about the way in which the employee has complied with his obligations;

a declaration about the way in which the employment agreement has ended;

if the employment agreement has been terminated by the employer: the reason for its termination.

The information referred to in section 2, under point (c), (d) and (e), may only be mentioned in the testimonial when the employee has requested so.

(…)

Art. 7:766

A construction agreement as meant in Article 7:765 is entered into in writing. (…)

Art. 7:859

The surety agreement can only be proven against the surety by means of a written document which is signed by him.

When it has been ascertained that the surety has entirely or partially performed the obligation of the principal debtor, the surety agreement can be proven by all means of evidence.

(…)

Art. 7A:1576i

A hire-purchase contract is entered into by authentic (notarial) or private deed that meets the requirements set under Article 7A:1576j.

(…)