Week 3 Rules

Question 1

Legal Capacity F

Answer 1

“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)

Question 2

Legal Capacity NL

Answer 2

“Any person may enter into a contract, unless he has been declared incapable of it by law

Question 3

Legal Capacity E

Answer 3

Any person may enter into a contract, unless he has been declared incapable of it by law

Question 4

Legal Capacity D

Answer 4

Any person may enter into a contract, unless he has been declared incapable of it by law

Question 5

Representation by parents/legal representatives F

Answer 5

“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)”

Question 6

Representation by parents/legal representatives NL

Answer 6

Rule/Principle: Parents have the general power to represent their children

Question 7

Representation by parents/legal representatives E

Answer 7

“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

Question 8

Representation by parents/legal representatives D

Answer 8

“Rule/Principle: Parents have the general power to represent their children.

Much emphasis on the consent of a parent or other legal representatives

Question 9

Minors under 18 years F

Answer 9

“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

Question 10

Minors under 18 years NL

Answer 10

“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”

Question 11

Minors under 18 years E

Answer 11

“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

Question 12

Minors under 18 years D

Answer 12

“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

Question 13

People with mental disorder F

Answer 13

“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)

Question 14

People with mental disorder NL

Answer 14

“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

Question 15

People with mental disorder E

Answer 15

“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

Question 16

People with mental disorder D

Answer 16

“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

Question 17

Temporary mental disorder F

Answer 17

“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

Question 18

Temporary mental disorder NL

Answer 18

“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

Question 19

Temporary mental disorder E

Answer 19

“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

Question 20

Temporary mental disorder D

Answer 20

“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

Question 21

Formalities F

Answer 21

“Rule/Principle: Contracts doesn’t require any form, only if the law requires it.

E.g.: Donation, Marriage

Question 22

Formalities NL

Answer 22

“Rule/Principle: Contracts doesn’t require any form, only if the law requires it.
in

Article: 3:37 (1) BW

E.g: Donation, Marriage

Question 23

Formalities E

Answer 23

“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

Question 24

Formalities D

Answer 24

“Rule/Principle: Contracts doesn’t require any form, only if the law requires it.

E.g: Donation, Marriage

Question 25

Formalities Immovables F

Answer 25

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)

Question 26

Formalities Immovables NL

Answer 26

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

Question 27

Formalities Immovables E

Answer 27

No Deed required but contract must be made in writing and signed by each party

Question 28

Formalities Immovables D

Answer 28

Notarial Deed for both:

• Sale of Land § 311b BGB and
• transfer of ownership § 925 BGB

Question 29

Evidence in writing F

Answer 29

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

Question 30

Written form can be replaced by electronic means

Answer 30

Art. 9 (1) Directive 2003731 on Electronic Commerce
§ 126 BGB
Art. 6:227 BW

Question 31

Withdraw distance contracts (internet)

Answer 31

Art. 9 Directive 2011/83 on Consumer Rights

Question 32

Contract lacks the required form D

Answer 32

§ 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

Question 33

Contract lacks the required form NL

Answer 33

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

Question 34

Contract lacks the required form E

Answer 34

unenforceable but protected party can decide if it wants to keep the contract in place or not.

Question 35

Contract lacks the required form F

Answer 35

void but protected party can decide if it wants to keep the contract in place or not.