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Rent Contracts & Housing rights -Netherlands Civil Law - Dutch contract Law

Rent Contracts & Housing rights -Netherlands Civil Law - Dutch contract Law

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Mr Data CampusMetropoolBuilding - Buy / Renting property in Amsterdam has own set of confusing ruels . Learn.Grow.Connect info@mr-data.nl

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Special agreements special agreements judgmentsing. Mondy Holten (mondy.HOLTEN@mr-data.nl) Learn.Grow.Connect info@mr-data.nl Special agreements judgments 2022-2023 WRA/Oldenhoeck

art 7:24 Dutch Civil Code. Buy two plots of land with leasehold in Amsterdam. Between the closing of the contract and delivery, the buyer will receive a letter about raising the quay. This is 3 quarter years before delivery. The buyer then complains the day before the transfer.

Legal question: When is a complaint made within a reasonable time?

Legal rule: As a rule, the research concerned can only take place after the performance has been supplied. The obligation to investigate and to notify, implied in the aforementioned provisions can therefore in principle not be related to the period prior to the moment when the debtor performs his performance. The foregoing may be different if the debtor offers the creditor the opportunity to inspect the item to be delivered prior to the time of delivery, in which case the creditor will, as a rule, immediately have to protest, but such a case does not arise here. Nor the circumstance that this concerns the purchase of a property right as referred to in art. 7:47 BW, nor the circumstance that the non-conformity is no longer before the moment could be recovered from delivery, means that the time within which the (investigation and) notification obligation had to be fulfilled, a commencement already before the delivery of the leasehold Has taken. The research period only starts when the performance has been delivered. It's different in this case. The buyer can therefore no longer appeal. The deadline has already started.

Compensation:

Pursuant to art. 6:105 Dutch Civil Code the freedom to postpone the estimate of future damage in whole or in part, or to carry it out in advance after weighing up good and bad opportunities. The court was therefore free to choose to make use of the latter option. There was no need for further motivation, certainly not now that WRA had not urged the de facto authorities to postpone the estimate of the future damage.

Van Dalfsen/gem. Kampen

to transform a national monument into a restaurant. The municipality has not communicated everything with regard to the defects, but these defects were very visible because the building is old. Buyer was given ample space for research, but did not do so. In retrospect, it turns out that two floors do not meet the requirements for catering.

Legal question: Can the buyer be sued for having breached his obligation to investigate despite the fact that the seller has breached his obligation to disclose?

Rule of law:. In general, it cannot be argued against a buyer, even a careless buyer, that he has not made sufficient research into the properties of the purchased item, if the seller, according to generally accepted standards, had an obligation to inform but failed to inform the buyer to inform the seller of factual information known to the seller that is relevant to answering the question of which properties the buyer could expect with a view to the intended destination of the purchased. However, the Court of Appeal did not misunderstand this basic principle and the reasons for its decision meet the requirements to be set (partly as evidenced by the aforementioned judgment). After all, the court of appeal has

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ing. Mondy Holten (mondy.HOLTEN@mr-data.nl) C/09/608429/KGRK21-267Techrabota.BGLtd h.o.d.n. Mr Data Business School of Technology International Amsterdam Campus MetropoolGebouwHuisregt, gevestigd te "akte"te Amsterdam Centrum Oost Nieuwe Keizersgracht 88, 1018 VE Amsterdam en Weesperstraat 61, 63, 65, 67, 69,71,73,75,77,79,81,83,85,87,89,91,93,95,97,99,101,103,105, 1018 VN Amsterdam

Judgments Special Agreements 2022-2023 based

on its opinion that the principle referred to in the present case suffers an exception due to the special circumstances of This case is based on:

- Visibility defect: beam layer bent (art. 7:17 paragraph 5 of the Dutch Civil Code)

- Assistance by an expert

- Preliminary notices

- Opportunity to investigate.

De Beeldbrigade/Hulskamp

Agreement for the purchase of standard computer software for use that is not limited in time against payment of a certain amount. The computer program did not work in conjunction with the operating system. Beeldbrigade therefore has to purchase a new system.

Legal question: Whether or not the purchase title 7.1 of the Dutch Civil Code applies to an agreement in which one party undertakes to make standard computer software for sustainable use available to the other party and the other party to pay a certain price for it once? deem?

Legal rule: It is fairly widely accepted that the provisions applicable to the agreement of purchase/sale are (may) apply to agreements in which software is made available at a certain price with a view to sustainable use, in particular the provisions relating to and related to issues of non-conformity.

The agreement extends to the creation of a right to use certain software with the person who will use the software. Moreover, when software is made available, something changes on the side of the user: after the software has been made available, the user has 'something' that was not there before. That 'something' that is obtained is not only 'tangible', but also has economic value and can be transferred. All these conditions deliver a sufficient basis to equate computer software as a thing or an item therewith object, not only when there is a question of making it available by means of from a carrier but also by means of a download. In the event that the agreement with the user of computer software also serves to transfer the copyright, that agreement can be seen as a purchase agreement with two objects, namely the copyright (property right) and the computer software with or without a carrier ( case).

Intended to provide the acquirer with something that is individualized and over which he can exercise actual power. cf. art. 7:5 paragraph 5 Dutch Civil Code

CASE: Van de Steeg/Rabobank Noord Holland Noord

art 6:89 Dutch Civil Code. Is about investment advice case and also of importance 7:23 Dutch Civil Code. Took quite a while for client to find out she wasn't making any returns.

Legal question: Has the complaint been filed too late and is the seller disadvantaged by complaining too late, Article 6:89 of the Dutch Civil Code?

Legal rule: If the customer, possibly after an (expert) investigation, has become aware of the failure of the bank in its duty of care, or should reasonably have been aware of this, he must do so on the basis of art. 6:89 BW to protest in due time.be

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ing. Mondy Holten (mondy.HOLTEN@mr-data.nl)

C/09/608429/KGRK21-267Techrabota.BGLtd h.o.d.n. Mr Data Business School of Technology International Amsterdam Campus MetropoolGebouwHuisregt, gevestigd te "akte"te Amsterdam Centrum Oost Nieuwe Keizersgracht 88, 1018 VE Amsterdam en Weesperstraat 61, 63, 65, 67, 69,71,73,75,77,79,81,83,85,87,89,91,93,95,97,99,101,103,105, 1018 VN Amsterdam

Judgments Special Agreements 2022-2023 must

given a reasonable period of time for deliberation. When assessing whether the bank's appeal to art. 6:89 of the Dutch Civil Code is well founded, great weight is also attached to the answer to the question whether the bank suffers a disadvantage in the aforementioned sense due to the lapse of time between the moment of discovery of the shortcoming and the moment at which the protest was made. If the bank has not been disadvantaged by the lapse of time between the start of the term and the notification, it is not clear why the duration of that lapse could nevertheless be relevant for the answer to the question whether Van de Steeg's rights on the basis of Article 6:89 of the Dutch Civil Code have lapsed.

CASE: ABN AMRO/Botersloot

An office building was sold to Botersloot with the aim of using it as an office building. In the purchase agreement, the seller guarantees that, to the best of our knowledge, no asbestos is present in the property and that there are no facts that presume contamination, including asbestos. After delivery, Botersloot made an asbestos inventory and it turned out that there was asbestos in the basement. During the renovation work, loosely bound asbestos was also found (this is more dangerous for health). Botersloot only complained after the loosely bound asbestos had been found and it had therefore been known for some time that the building contained asbestos. Botersloot relies on the loosely bound asbestos.

Legal question: Does the obligation to complain also apply with regard to a defect that the buyer does not invoke (normal asbestos) 7:23 paragraph 1 of the Dutch Civil Code?

: Inthe cases regulated in the first sentence of that provision, the buyer must (a) conduct the investigation that can reasonably be expected of him in the given circumstances to answer the question whether the item delivered to him complies with the agreement and (b ) to inform the seller within a reasonable time after he has discovered or should have discovered during such an investigation that the delivered item does not comply with the agreement. It cannot be inferred from the foregoing that the buyer must report any defect discovered by him to the seller. It is up to the buyer to determine whether he will act towards the the seller wishes to invoke a defect. This will not be the case with every defect. For example, the buyer will not invoke a defect if, in his opinion, it is not of such a nature that it interferes with the intended use of the purchased item, or if he accepts the defect for other reasons. This does not affect the fact that if the buyer later discovers that the defect is of a greater magnitude or is of a different nature than he initially thought, or finds a (according to him) other defect, to an appeal to that defect may prevent him from making further inquiries after his initial discovery has carried out or has had an investigation carried out, while that is reasonable in the circumstances of the case could be expected of him. It is up to the seller to invoke this.

CASE: FAR Trading BV/Edco Eindhoven BV

Far has delivered a consignment of caps to Edco. Edco did not pay for the caps. According to Edco, the caps were not according to the samples shown. In the branch it is common for this to be checked. Edco did complain about the caps being in the wrong packaging, but not about the above. Only 3 months later Edco complained about the difference in quality with the samples shown.

Legal question: Did Edco make a timely complaint about non-conformity within the meaning of Section 7:23(1) of the Dutch Civil Code?

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ing. Mondy Holten (mondy.HOLTEN@mr-data.nl)

C/09/608429/KGRK21-267Techrabota.BGLtd h.o.d.n. Mr Data Business School of Technology International Amsterdam Campus MetropoolGebouwHuisregt, gevestigd te "akte"te Amsterdam Centrum Oost Nieuwe Keizersgracht 88, 1018 VE Amsterdam en Weesperstraat 61, 63, 65, 67, 69,71,73,75,77,79,81,83,85,87,89,91,93,95,97,99,101,103,105, 1018 VN Amsterdam

Judgments Special agreements 2022-2023 Legal rule

: The question of whether the buyer within the reasonable time as referred to in art. 7:23 paragraph 1 of the Dutch Civil Code has made a complaint about defects in the delivered item, cannot be answered in a general sense. In cases regulated under 7:23 paragraph 1, the buyer must (a) answer the question whether the buyer delivered goods comply with the agreement in the given circumstances conduct an investigation reasonably expected of him and (b) within a reasonable time after he has discovered or should have discovered during such an investigation that the delivered good was not conforms to the agreement, to notify the seller.

In the case of a non-consumer purchase, the question of whether the notice was given within due time should be answered after considering all the interests involved and taking into account all relevant circumstances, including whether the seller is disadvantaged by the time lapse until complaint is made. A fixed term cannot be used, even not as a starting point. In this regard, the court must take into account, on the one hand, the far-reaching legal consequence for the buyer of protesting too late, as in art. 7:23 of the Dutch Civil Code – i.e. forfeiture of all his rights with regard to the shortcoming – and, on the other hand, the concrete interests in which the seller has been harmed by the late time at which that protest was made, such as a disadvantage in his position of evidence or an impairment of his possibilities to limit the consequences of the alleged shortcoming. The time that has elapsed between the time that knowledge of the defect exists or should reasonably have existed and that of the protest, although it is an important factor in that assessment, is not decisive.

Burden of proof division at 7:23 paragraph 1 of the Dutch Civil Code:

1. The buyer states (motivated/proves) that (i) a complaint was made and (ii) when the complaint was made; 2. The seller puts forward a liberating defence, namely not timely complained by the buyer on the basis of facts and circumstances. The seller must motivate/prove (i) when the buyer discovered or should have discovered the defect through investigation and (ii) the time lapse until the complaint;

3. Judge poorly examines whether the circumstances of the case + facts were sufficient to justify the seller's defense on the basis of 7:23 paragraph 1. The judge does not ex officio whether the seller has suffered a disadvantage. The buyer must then argue that the seller has not suffered any disadvantage as a result of the late complaint.

4. If it is argued by the buyer that the seller has not suffered any disadvantage, the seller must argue that this was the case and bears the risk of proof for this.

CASE: Portsight BV/De Vries Werkendam Beh.BV

In April 2008, De Vries sold a building site in Werkendam to Portsight. A major river policy rule applies to the construction site (don't build up everything to give rivers the chance to run their course if they flood). Pursuant to the policy rule for large rivers, permission had to be obtained and agreement had to be reached with Rijkswaterstaat about the size of the buildings and about compensatory water storage for the proposed development on the construction site. The buyer defends itself by stating that this is a special burden within the meaning of Article 7:15 paragraph 1 of the Dutch Civil Code.

Legal question: Which criterion applies when answering the question whether burdens and restrictions arising from public law regulations can be regarded as 'special burdens and restrictions' within the meaning of Article 7:15 paragraph 1 of the Dutch Civil Code?

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ing. Mondy Holten (mondy.HOLTEN@mr-data.nl)

C/09/608429/KGRK21-267Techrabota.BGLtd h.o.d.n. Mr Data Business School of Technology International Amsterdam Campus MetropoolGebouwHuisregt, gevestigd te "akte"te Amsterdam Centrum Oost Nieuwe Keizersgracht 88, 1018 VE Amsterdam en Weesperstraat 61, 63, 65, 67, 69,71,73,75,77,79,81,83,85,87,89,91,93,95,97,99,101,103,105, 1018 VN Amsterdam

Judgments Special Agreements 2022-2023 Legal Rule

:. In the opinion of the legislator, there is only sufficient justification for the seller to be charged with the in art. 7:15 of the Dutch Civil Code, if the charges or restrictions the item sold in particular. As a rule, it can be assumed that the the seller (better than the buyer) is aware of things specifically related to the item he is selling related burdens and limitations. Public law burdens or restrictions that do not relate specifically to the item sold, on the other hand, will generally not be more apparent to the seller than to the buyer. For these reasons there is no good ground art. 7:15 paragraph 1 The Dutch Civil Code also applies if the burdens or restrictions arise from public law decisions of general application, such as policy rules, regulations or zoning plans. There is only a 'special' burden or limitation under public law if this has its basis can be found in a specific (joint) to (a legal predecessor of) the rightful claimant of the relevant case decision.

If, in view of the above, something cannot be qualified as a 'special limitation or burden', the buyer can address the seller on the grounds of error (Article 6:228 of the Dutch Civil Code) or non-conformity (Article 7:17 of the Dutch Civil Code). The provisions of paragraph 2 of art. 7:15 of the Dutch Civil Code (an increased liability of the seller for charges and limitations arising from facts that are susceptible to registration in the public registers) only applies to the special charges and limitations referred to in paragraph 1.

In short: If it concerns a public burden, the decision must be (or has been) specifically addressed to the rightholder.

CASE: Old farm

The parties enter into a purchase agreement for an old farmhouse and associated land. At two viewings prior to the purchase, there was visible overdue maintenance. In the purchase agreement, drawn up according to NVM standard, the seller guarantees that the purchased item has the properties necessary for normal use as a family home., the buyer has

also stated in the purchase agreement that it is familiar with the state of maintenance and that it has been able to form an idea of ​​the maintenance to be performed. After delivery, the soil is found to be contaminated and asbestos is found. The condition of the house also appears to be worse than the buyer had expected. Among other things, there are leaks and when it rains, the barns are flooded. The buyer aims for dissolution of the purchase agreement and alternatively for compensation. The Court of Appeal only awards compensation for the removal of asbestos insofar as there was a legal obligation to remove the asbestos.

Legal question: Whatcan buyers expect from a warranty of fitness for normal use on a visibly outdated and damaged farm?

Rule of Law: The scope of that warranty must be interpreted in the light of what plaintiffs have under the agreement, also in view of the apparent age and defects of the farm, to properties could be expected. This means that the Court of Appeal was allowed to take as the starting point that, because of the age and defects of the farm that are known to the plaintiffs, no high requirements may be imposed on the properties that are necessary for the normal use of this farm as a family home. In that light, the Court of Appeal had to assess whether the defects alleged by the plaintiffs detract from what they could expect on the basis of the agreement, with the clauses contained therein, such as the guarantee and the reservation made.

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ing. Mondy Holten (mondy.HOLTEN@mr-data.nl) C/09/608429/KGRK21-267Techrabota.BGLtd h.o.d.n. Mr Data Business School of Technology International Amsterdam Campus MetropoolGebouwHuisregt, gevestigd te "akte"te Amsterdam Centrum Oost Nieuwe Keizersgracht 88, 1018 VE Amsterdam en Weesperstraat 61, 63, 65, 67, 69,71,73,75,77,79,81,83,85,87,89,91,93,95,97,99,101,103,105, 1018 VN Amsterdam

Judgments Special Agreements 2022-2023

The Court of Appeal has established:  that it was clear to the claimants that it concerned an old farm;  that there was clearly much overdue maintenance;  that many cracks were visible in the walls of both the front house and the back house;  that with regard to the stability and subsidence of the farm an express reservation in art. 6.1 of the agreement (which claimants did not make use of)  that on the basis of that reservation they had to take into account that the situation with regard to stability and subsidence could not be optimal and even bad  and that claimants in art. 16 under (1) of the agreement have declared that they are familiar with the state of maintenance and that they have been able to form an idea of ​​the necessary maintenance to be performed.

On that basis, the Court ruled that the plaintiffs, in view of the many known and recognizable defects, should have carried out an investigation into the condition of the farm and outbuildings, and that they in the absence thereof, cannot rely on the fact that the delivered item does not meet the agreement (including the warranty given therein). It is implied in these judgments that defendants had no further obligation to disclose in this regard. In short: buyers have violated their obligation to investigate.

CASE: Residential farm

Plaintiff in cassation and her then husband (hereinafter: the man) sold their home, a former farm with outbuildings and land, located in an area with an agricultural purpose, to the defendants in cassation. With prior written permission from the municipality, the man had a dental laboratory in the outbuildings. In these proceedings, the defendants have claimed compensation on the ground that the sellers, although they were aware of this, did not state that the house is intended for agricultural use.

Legal question: Is an agricultural destination for a farmhouse a special burden or restriction within the meaning of Article 7:15 of the Dutch Civil Code? If this is not the case, does Article 7:17 of the Dutch Civil Code (non-conformity) or miscarriage of justice apply to this case?

Legal rule: The agricultural destination of the house follows from the local zoning plan. Of a 'special' public law burden or limitation within the meaning of art. 7:15 BW, however, only exists if it is based on a specific decision (also) addressed to (a legal predecessor of) the owner of the relevant case. That is not the case here.

After referral, in the context of art. 7:17 Dutch Civil Code or art. 6:228 paragraph 1, preamble and under b of the Dutch Civil Code, it is assessed whether the seller was subject to a notification obligation with regard to the agricultural destination. For that assessment — unlike in the application of art. 7:15 of the Dutch Civil Code (after all, which provision requires explicit acceptance by the buyer of the special charges and limitations in order to avoid liability on the part of the seller) — it is also important whether the seller could reasonably assume that the buyer would conduct its own investigation into this matter. If the seller before the conclusion of the agreement should have provided the buyer with certain information in order to prevent the purchaser from misrepresenting the point concerned would make, reasonableness and fairness generally preclude the seller from defense of an invocation of error or non-conformity argues that the purchaser is the origin of the

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ing. Mondy Holten (mondy.HOLTEN@mr-data.nl) C/09/608429/KGRK21-267Techrabota.BGLtd h.o.d.n. Mr Data Business School of Technology International Amsterdam Campus MetropoolGebouwHuisregt, gevestigd te "akte"te Amsterdam Centrum Oost Nieuwe Keizersgracht 88, 1018 VE Amsterdam en Weesperstraat 61, 63, 65, 67, 69,71,73,75,77,79,81,83,85,87,89,91,93,95,97,99,101,103,105, 1018 VN Amsterdam

Judgments Special Agreements 2022-2023

is partly to blame for misrepresentation. However, that does not alter the fact that any The seller's obligation to compensation, on the basis of art. 6:101 paragraph 1 of the Dutch Civil Code can be reduced if the incorrect representation is partly attributable to the buyer, for example due to lack of research into his side.

CASE: MBS/Prowi

Sellers. were shareholder in Prowi Holding BV and sold the shares in Prowi Holding to Olimar BV in February 2002 for a purchase price of € 8,000,000. The shares were delivered to Olimar in March 2002 against payment of € 6,000,000. Olimar owed the remainder of the purchase price to the sellers] et al. In July 2002, Olimar's lawyer at the time wrote to the sellers that the purchase agreement with regard to the Prowi Holding shares was concluded through, among other things, fraud on the part of the sellers . Olimar has been declared bankrupt and the claim for damages against the sellers for fraud has been transferred to MBS. In March 2012, MBS's lawyer interrupted the statute of limitations of all claims and claims of MBS against sellers.

Legal question: Does the limitation period of article 7:23 paragraph 2 of the Dutch Civil Code apply to a claim for compensation for fraud?

Legal rule: Article 7:23 paragraph 2 of the Dutch Civil Code also applies to protect the interests of the seller, for every legal claim and defense of the buyer that is actually based on the non-compliance of the delivered item with the agreement, even if the buyer has this ground (also) is based on a legal claim based on tort. The unused expiry of the provisions in art. 7:23 paragraph 1 of the Dutch Civil Code also precludes a defense or claim based on error, based on facts that would also justify the assertion that the delivered item does not comply with the agreement. art. 7:23 paragraphs 1-3 of the Dutch Civil Code, explicitly take into account before the start of the limitation period if the seller has deliberately created an incorrect impression about the properties of the item. In view of this, and also in the light of the parliamentary history of art. 7:23 BW is the limitation period of art. 7:23 paragraph 2 BW also from applies to a claim based on fraud that is based on facts that support the assertion would justify that the delivered item does not comply with the agreement. The limitation period of art. 7:23 paragraph 2 of the Dutch Civil Code does not apply to a claim due to fraud insofar as it is substantiated by facts that are independent, that is, separate from the facts that bear the award of a non-conformity claim constitutes fraud.

CASE: Franchise Agreement: X/Street One.

X has entered into a franchise (POS) agreement with Street-One regarding the supply of branded clothing from Street-One to and its right to sell it in the store in Wijchen. Prior to that, Street-One had provided X with sales forecasts for the operation of the store. Subsequently, the parties entered into agreements with regard to a StreetOne store in Barneveld, with the same content as the agreements with regard to the store in Wijchen. Forecasts for this store were also provided by Street-One to X in advance. The forecasts provided by StreetOne appear to be incorrect.

Legal question: Is StreetOne liable in tort for the incorrect sales forecasts when it did not know but should have known that they were incorrect?

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ing. Mondy Holten (mondy.HOLTEN@mr-data.nl) C/09/608429/KGRK21-267Techrabota.BGLtd h.o.d.n. Mr Data Business School of Technology International Amsterdam Campus MetropoolGebouwHuisregt, gevestigd te "akte"te Amsterdam Centrum Oost Nieuwe Keizersgracht 88, 1018 VE Amsterdam en Weesperstraat 61, 63, 65, 67, 69,71,73,75,77,79,81,83,85,87,89,91,93,95,97,99,101,103,105, 1018 VN Amsterdam

Judgments Special agreements 2020/2021 Legal rule

As a condition for liability under art. 6:162 of the Dutch Civil Code that the franchisor has deliberately led and left his counterparty in an incorrect assumption. In the Paalman/Lampenier judgment, the Supreme Court held that a franchisor who provides a report on the expected turnover and the expected profit to the other party is actingunlawfully under certain circumstances if he knows that this report contains serious errors and he counterparty not point out these errors. This rule relates to the case at issue in that judgment in which the franchisor submits the investigation and the preparation of the report based thereon to a third party outsourced. As a rule, the franchisor may also check the correctness thereof trust, so that, in principle, negligent conduct on its part only occurs in the event of science as referred to above.

The latter is different if the franchisor himself, or a person for whom he is liable on the basis of one of the art. 6:170–6:172 BW, carries out the investigation and provides the results thereof to the other party. In that case, there can also be a case of negligent action without the franchisor (or the person for whom he is liable) knows that the report contains errors, and does if negligence on the part of the franchisor (or of the person for whom he is liable) has led to the errors in the report.

In short: If the forecast is drawn up by the franchisor itself, the bar for liability is lower. If you are not aware of errors in your report, you are liable for them, namely a duty of care.

CASE: Albert Heijn Supermarket

The plaintiff's supermarket has switched from the C1000 formula to the Albert Heijn formula. In the run-up to this, Albert Heijn, in addition to initial turnover forecasts for internal use, also made turnover forecasts that were provided to the plaintiff. Plaintiff was unable to realize the forecast turnover in the following years and claims (among other things) a declaratory judgment that she erred. The Court of Appeal rejects Plaintiff's claims, partly because Albert Heijn was not under an obligation to provide Plaintiff with (initial) turnover forecasts in the pre-contractual phase.

Legal question: Is AH under the obligation to provide the turnover forecast in the pre-contractual phase and is the European Code of Honor a legal belief living in the Netherlands?

Legal rule: It does not follow from the reasonableness and fairness in connection with the nature of the franchise agreement that the franchisor is under an obligation to inform the franchisee about the expected turnover or about the profit expectation, albeit that the special circumstances of the case may entail such an undertaking. From the mere circumstance that the franchisor in the negotiations prior to the conclusion of the franchise agreement to the franchisee a report on the expected revenue and foreseeable profit, it cannot be inferred that a an obligation rested on the former. However, the franchisor who provides his counterparty with a report, as referred to above, may under certain circumstances act unlawfully (see Street-One summary)

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ing. Mondy Holten (mondy.HOLTEN@mr-data.nl)

Judgments on Special Agreements 2020/2021

Contrary to what is argued in the section, the agreements laid down in the European Code of Honor cannot be without further ado be regarded as 'legal convictions living in the Netherlands' as referred to in art. 3:12 BW. Therefore, partly in view of the above, there is no ground for the general obligation of Albert Heijn advocated by the subsection to provide "all information and other data" to the prospective franchisee in the pre-contractual phase. No obligation to make long term forecasts.

CASE: Donation

HR 24 June 2016, ECLI:NL:HR:2016:1272, NJ 2016/401 (not required)

Woman had lost contact with her mother. During her mother's life, securities were donated to brother by (demented) mother without a notarial deed. Zus invokes abuse of circumstances (art. 3:44). According to the sister, Hof had considered the circumstances of Art. 7:176 BW: reversal of the burden of proof should not be applied.

Legal question: Could the Court of Appeal have reversed the burden of proof on the basis of Section 7:176 of the Dutch Civil Code?

law: From the parliamentary history of art. 7:176 BW shows that a different rule of burden of proof has been included to strengthen the position of the donor. If the burden of proof would be contrary to the requirements of reasonableness and fairness in the given circumstances, then expressly accountable to the court, assuming that facts have been stated that justify this departure from the main rule. This includes the case where only the donor has the evidence or that his argument is so improbable that provisional acceptance would put the other party in an unreasonable position of evidence. The sister (as the legal successor under universal title (heir) of the mother, and thus as 'donor') invoked the voidability of gifts from the mother to the brother. According to the documents, the sister has presented facts and circumstances to substantiate her argument that the donations were made through abuse of circumstances. The court applied have to give to art. 7:176 BW by placing the burden of proof on the brother that the donations are not door misbruik van omstandigheden zijn tot stand gekomen, dan wel door te oordelen dat deze verdeling van de bewijslast in de gegeven omstandigheden in strijd met de eisen van redelijkheid van billijkheid zou zijn. Van dat laatste had het hof dan uitdrukkelijk verantwoording moeten afleggen, waarbij het hof tevens tot uitdrukking had moeten brengen welke (door de broer gestelde) feiten deze afwijking van de hoofdregel van art. 7:176 BW rechtvaardigen.

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Datum en tijd

Locatie

Nieuwe Keizersgracht 88

88 Nieuwe Keizersgracht

1018 VE Amsterdam

Netherlands

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