Law chapter 9

Question 1

Legal person

Answer 1

Vereniging (association), cooperatie (cooperative), onderlinge waarbogmaatschappij (an association to provide insurance), naamloze vennootschap (NV, unlimited company), besloten vennootschap met beperkte aansprakelijkheid (BV, limited company), stichting (foundation).

Question 2

Foundation

Answer 2

Financial fund for a certain purpose (eg study scholarships)

Question 3

Association

Answer 3

Form when people want to cooperate socially (eg sport clubs)

Question 4

Eenmanszaak

Answer 4

Business ran by only one person.

Question 5

Tort law

Answer 5

Law dealing with damage resulting from unlawful acts

Question 6

Tort case based on fault 4 things have to be determined

Answer 6

Whether there is damage, whether there has been unlawful conduct, whether this conduct is a person’s fault, and whether there is a causal connection between the unlawful conduct and the damage.

Question 7

Damage

Answer 7

Can be both material and emotional damage. The Dutch usually do not award a lot of money for emotional damages (rarely more than 50k)

(Damage comes in two forms: material–loss of an economic value; and non-material–emotional damage.)

Question 8

Unlawful conduct

Answer 8

Usually two cases: infringement of a person’s right, or violation of a statutory duty. Due care criterion: creating dangerous situations (eg, dumping waste attracts birds, which eat fruit of the nearby farmer, damaging his property)

(Establishes whether or not the conduct can be deemed as unlawful. Traditionally this implies either infringing a persons right or violates a statutory duty.)

Question 9

Causality

Answer 9

Usually straightforward but can become a problem when there are multiple causes. If it’s not clear who did what, they are all reliable for the whole damage.

(This issue determines the causal relationship between the unlawful act and the damage itself. This requires that the person(s) responsible for the unlawful act must be found and linked to the damages that they actually caused.)

Question 10

Fault and risk

Answer 10

Idea: every person should be accountable for the consequences of his own actions. If you take a risk you also have to be prepared for the possible negative consequences. Parents are responsible for their kids, in case the kid is > 14 years old it is possible the kid is the only one liable.

(This determines if the unlawful act was a result of fault or risk. This implies determining either duty of care, and breach of that duty i.e. fault, or approximating the risk and it not paying off.)

Question 11

Traffic accidents

Answer 11

Follows normal tort law for motorized vehicles vs motorized vehicles. Otherwise the motorized vehicle is always at fault (eg if a car his a pedestrian, it is always the drivers fault). One exception is ‘force majeure’, circumstances that are beyond the control of the driver.

Question 12

Contract law

Answer 12

Most important form to realize one’s objective through private law. A contract is a subcategory of the juridical act. Those rules therefore also apply to contracts. A contract is an agreement between two or more parties that creates and defines a set of obligations between them.

Question 13

Intention and declaration

Answer 13

The intention defines the offer to construct a contract and the declaration refers to the officially constructed offer. This must be done upon reasonable grounds, if this can not be proved regarding the intention, the declaration is legally binding.

Question 14

Making a contract

Answer 14

A contract is generated by offer and acceptance during which negotiations on the terms are conducted. All parties must agree to the terms. Announcements only count as invitations to start negotiations.

Question 15

Negotiations

Answer 15

More important contracts necessitate a substantial period of negotiating. This implies a basic contract, in that parties involved will agree to a set proportion of a contract and indicate what is to be negotiated upon further. Thus, three stages, waiting period, start of negotiations, and in depth talks. These require either no, some or extensive reparations in the case of failure to negotiate.

Question 16

Failure

Answer 16

A contract can be annulled if there have been any mistakes in the creation or the contract or parties involved fail to met there obligations. A contract is null if it is an illegal contract. Illegal contracts could be the result of: error, fraud, threat of circumstances, or abuse of circumstances.

Question 17

Error

Answer 17

Error stems from a defect in will following on from a misunderstanding or lack of relevant information, that as a result falls outside the original terms of contract. With a misunderstanding the essential term where the misunderstanding occurred must b measured and known to both parties. This implies a duty to inform and a duty to investigate by both parties

Question 18

Fraud

Answer 18

Is a special case of error in that the misunderstanding is based on the intentional deception of a party involved. With this one must prove that there was intentionally misleading information.

Question 19

Threat of circumstances

Answer 19

Threat is similar to the previously mentioned reasons, it occurs when someone is induced to sign a contract under duress that is illegal.

Question 20

Abuse of circumstances

Answer 20

Is when a party is induced to sign a contract under undue influence.

Question 21

Contract contents

Answer 21

Some points to note:

• Interpreting contract contents is in the basis of what the clients can expect from the wording in such circumstances and not the wording itself.
• Obligations stemming from obligatory and permissive rules, customary law.
• Reasonableness and equity
• In unforeseen circumstances contracts can be set aside
• What about third parties?

Question 22

Standard terms and consumer protection

Answer 22

Standard terms are sets of rules made by one of the parties which are used in all similar contracts. They allow for the important components of the contract to be highlighted and looked at. While they are useful for improving the efficiency of contracts, they do imply the risk of unreasonable demands upon the other party involved. This is so especially with the standard practise of not reading the fine print. Dutch law has a black and grey list for clauses that should not be used or allowed to be proved respectively.

Question 23

End of contract

Answer 23

While some contracts end as soon as they are made, some do last for ever. The end of a contract is seen when all obligations have been met by both parties. If non-performance happens then the party responsible can be blamed. Questions arise in relation to: temporary or permanent non-performance? Causality of non-performance? The former is important in the case of debtors and creditors. At such times the creditor can:
- Demand specific performance
- Postpone their own performance
- Set aside the contract, not annulment
- Claim damages
Damages can only be claimed iff the non-performance is attributable to the debtor. Damages can be claimed in lieu of non-performance and take the form of: compensatory, exemplary, nominal or punitive.