Agreements under Dutch law and corona

Agreements under Dutch law and corona – what can you do?

The coronavirus is a crisis of unprecedented proportions. Nobody had foreseen this crisis, let alone that it was taken into account in the contracts.

– What can you do if a factory is closed and you can no longer deliver?
Or when you are confronted with a buyer who refuses to purchase a consignment of goods because of corona?

There are various possibilities. Below is a brief overview.

– Check the agreement under Dutch law. Does the agreement provide for solutions in the event of epidemics/government measures, or is there an “act of God” clause?

– Is there force majeure? Think of the situation in which goods or services cannot be supplied due to an export ban. Force majeure requires that performance is impossible (not just more difficult or expensive) and that it is not due to the debtor’s fault and/or business risk.

– In the event of a successful invocation of force majeure, the obligation to pay damages shall lapse and the period for fulfilment of obligations may be postponed. However, force majeure is not quickly accepted. The District Court of Den Bosch recently ruled that tenants’ inability to pay due to reduced turnover due to Corona does not lead to a situation of force majeure and the tenants still have to pay the full rent.

– An agreement can be amended or (partially) dissolved due to unforeseen circumstances.

– Unforeseen circumstances must be circumstances that at the time the agreement was concluded were still in the future and that are such that the other party, according to standards of reasonableness and fairness, may not expect unaltered maintenance. This may seem simple, but it is not.

– The District Court of Overijssel recently rejected an appeal on unforeseen circumstances because the Corona pandemic had to remain at the expense of the professional property developer.

– Suspend your (payment) obligations when a supplier claims not to be able to deliver (fully or on time) by Corona.

– Enter into (re)negotiations with each other, but do so with legal support, so that you know what your rights and obligations are. An out-of-court solution is often more than just a long legal battle.

Attorney at law in the Netherlands specialized in corona agreements

If your company encounters supply restrictions due to agreements under Dutch law and the Corona virus, Lisa Jie Sam Foek, as contract law attorney for corona agreements, will be happy to determine the strategy with you (lisa@fennekadvocaten.nl).