Week 3 Rules Flashcards
Legal Capacity F
“Rule/Principle: Any person may enter into a contract, unless he has been declared incapable of it by law
Article: Art. 1123 CC (Code Civil)
Legal Capacity NL
“Any person may enter into a contract, unless he has been declared incapable of it by law
Legal Capacity E
Any person may enter into a contract, unless he has been declared incapable of it by law
Legal Capacity D
Any person may enter into a contract, unless he has been declared incapable of it by law
Representation by parents/legal representatives F
“Rule/Principle: The administrateur légal has the general power to represent a minor
Exception: In cases where the law authorizes minors to act for themselves
Article: 389-3 Code Civil (don’t need to know it)”
Representation by parents/legal representatives NL
Rule/Principle: Parents have the general power to represent their children
Representation by parents/legal representatives E
“Rule/Principle: Parents can’t represent their children
Exception: If the court appoints the parents or „next friend“ to act in the minors name for a specific purpose
Representation by parents/legal representatives D
“Rule/Principle: Parents have the general power to represent their children.
Much emphasis on the consent of a parent or other legal representatives
Minors under 18 years F
“Rule/Principle: Contracts entered into by minors can be invalidated
Article: Arts. 388, 1123, 1124 Code Civil
Exception: Contracts of daily life are valid as long he or his representative can not prove that he would otherwise suffer an economic disadvantage
—> Act which is generally accepted practice that is performed by minors of his age
Article: 1305 Code Civil
Minors under 18 years NL
“Rule/Principle: Consent of legal representatives is required under all circumstances —> Contract can be declared void
Article: 1:234 (1,2) Dutch Civil Code
Exception: Act which is generally accepted practice that is performed by minors of his age
Article: 1:234 (3) Dutch Civil Code”
Minors under 18 years E
“Rule/Principle: Not bound by concluded contracts
Exception: Contract for necessaries and employment, apprenticeship and training contracts
Article: Section 3 (2) Sale of Goods Act 1979
Case: Proform Sports Management Ltd v Proactive Sports Management Ltd, 2006
Minors under 18 years D
“Rule/Principle:
Under the age of 7 years: Wholly incapable
Rule: § 104 BGB
At least 7 years but younger than 18: limited capacity to contract under §§ 107 to 113
Rule: § 106 BGB
Contract can be declared void if the legal representatives doesn’t agree
Exceptions: Contracts with legal benefits, § 107 BGB
or „Pocket money theory“ § 110 BGB
People with mental disorder F
“Rule/Principle: Curatelle - Court declares someone incapable of entering into legal transaction
Article: 428, 440 CC
Legal representative is appointed to perform legals acts for the incapable person
Contract can be declared void
Other party is bound
Exception: Art. 1148, 1151 new CC
- day-to-day act concluded on normal terms
- act useful to the protected who suffers no economic disadvantage (lésion)
People with mental disorder NL
“Rule/Principle: Curatelle - Court declares someone incapable of entering into legal transaction
Article: 1:378, 1:383 BW
Legal representative is appointed to perform legals acts for the incapable person
Contract can be declared void
Other party is bound
Exception: legal benefit Art. 1:381 (3) BW
People with mental disorder E
“Court declares someone incapable of some legal transactions but not all
Special legislation: Mental Health Act 1983 and the Mental Capacity Act 2005
Exception: Rule of necessaries
Article: Section 3 (2) Sale of Goods Act 1979, Mental Capacity Act 2005, s. 7
People with mental disorder D
“Rule/Principle: Betreuung - Court declares someone incapable of some legal transactions but not all
Article: 1896 BGB
A Custodian (Betreuer) is appointed by the court to take care of the affairs of the person in so far this is necessary
Contract can be declared void
Other party is bound
Exception: Contract with trivial matter or legal benefit § 1903 BGB
Temporary mental disorder F
“Rule/Principle: Party with serious mental disorder can avoid the contract if it can prove the disorder. Reliance other party irrelevant.
Article: 414-1 CC
Temporary mental disorder NL
“Rule/Principle: Party with serious mental disorder can avoid the contract if it can easily prove the disorder Art. 3:34 BW
Other party can always invoke reasonable reliance (Vertrauen) Art. 3:35 BW
Temporary mental disorder E
“Rule/Principle: The contract is only invalid if the other party knew that its counterpart was not able to conclude a contract
The other party can then decide not to be bound by it. Reasonable Reliance is protected.
Case: Hart v O´Connor, 1985
Exception: rule of necessary
Temporary mental disorder D
“Rule/Principle: Party with serious mental disorder can avoid the contract if it can prove the disorder —> Can choose whether or not to keep the contract in place
Article: § 105 (2) BGB
Exception: Every day contracts cannot be avoided § 105a BGB
Formalities F
“Rule/Principle: Contracts doesn’t require any form, only if the law requires it.
E.g.: Donation, Marriage
Formalities NL
“Rule/Principle: Contracts doesn’t require any form, only if the law requires it.
in
Article: 3:37 (1) BW
E.g: Donation, Marriage
Formalities E
“Rule/Principle: Contracts doesn’t require any form, only if the law requires it.
E.g: Gratuitous contracts need to be put down in writing with two witnesses
Formalities D
“Rule/Principle: Contracts doesn’t require any form, only if the law requires it.
E.g: Donation, Marriage
Formalities Immovables F
Notarial Deed is not necessary for the sale but to show 3rd parties who is the owner (is only possible after registration of the deed)
Formalities Immovables NL
Notarial Deed for transfer of ownership Art. 3:89 BW
Exception: protection for the buyer of a residential house –> can be made in writing Art. 7:2 BW
Formalities Immovables E
No Deed required but contract must be made in writing and signed by each party
Formalities Immovables D
Notarial Deed for both:
- Sale of Land § 311b BGB and
- transfer of ownership § 925 BGB
Evidence in writing F
Art. 1341 CC transactions exceeding the value of €800 not made in writing cannot be proved by witnesses
Exception: written evidence (e.G E-Mail) Art. 1347 CC
Written form can be replaced by electronic means
Art. 9 (1) Directive 2003731 on Electronic Commerce
§ 126 BGB
Art. 6:227 BW
Withdraw distance contracts (internet)
Art. 9 Directive 2011/83 on Consumer Rights
Contract lacks the required form D
§ 125 BGB contract is void. Protected party can decide if it wants to keep the contract in place or not. Curing the lack of form in some cases possible
Contract lacks the required form NL
Art. 3:39 BW contract is void. Protected party can decide if it wants to keep the contract in place or not. Curing the lack of form in some cases possible
Contract lacks the required form E
unenforceable but protected party can decide if it wants to keep the contract in place or not.
Contract lacks the required form F
void but protected party can decide if it wants to keep the contract in place or not.
