Cross-border agreements: The limitation of actions trap (verjaring) under English law

Dutch parties to a cross-border contract under English law are often not aware of the particular rules on limitation of actions (verjaring). They think from a Dutch law perspective and serve the other party with a written demand for performance (een schriftelijke aanmaning) or a written notice reserving the right of performance (een schriftelijke mededeling waarin het recht op nakoming wordt voorbehouden) to avoid a claim for performance being time-barred. Unfortunately, these methods are not recognised under English law. A … Read More

Terms in English contracts explained: Time is of the essence

English contracts often contain a clause stating that delivery, payment or performance of a particular provision is “of the essence”. Dutch parties should not underestimate its effect when negotiating an agreement under English law.  A “time of the essence” clause creates a hard deadline meaning that any deviation from the contractual time limit for performance will lead to a repudiatory breach. A repudiatory breach is a breach so fundamental that it is a ground not only for damages, but also … Read More

Do not put your faith in “Good Faith”

Good faith – codified under Dutch law as “reasonableness and fairness” (redelijkheid en billijkheid) – has become an integral part of Dutch commercial transactions and agreements. It applies as a general overriding principle to all types of legal relationships. Consequently, under Dutch law good faith governs how a contract is formed (negotiations), interpreted and performed. The principle is based on an obligation to act reasonably towards the other party to the transaction. As the parties must act in good faith … Read More

An advocaat is not a solicitor

Dutch regulated lawyers (advocaten) sometimes refer to themselves in English as solicitors. This is technically incorrect, because the responsibilities allocated to each branch of the legal profession in The Netherlands and England and Wales are different. In The Netherlands we distinguish “advocaten” from “notarissen”. An advocaat is a regulated legal adviser and authorised to represent clients in the lower and higher courts. An advocaat must act in the interest of his client. Notarissen are also regulated legal advisers, but they … Read More