A purchase agreement in the Netherlands contains the terms of a transaction of goods, services or property between two or more parties. These contractual terms cover a variety of areas that must be covered by the contract, such as a precise identification of the goods/services being traded, the delivery terms, details of payment, precise delivery instructions and, of course, the guarantees and remedies available to a party in the event of a breach of contract. If you conclude a sales contract under Dutch law, it is advisable to have this contract drawn up by a Dutch contract lawyer in the Netherlands.
Purchase CONTRACT FOR THE PURCHASE OF GOODS UNDER DUTCH LAW
The scope of these contractual conditions depends on the specific nature of the goods and the industry concerned. In addition, the jurisdiction to which the contract relates and the applicable law (for example Dutch or English law) are crucial for the application of these terms and conditions. In short, the main function of the purchase contract for the purchase of goods under Dutch law is to set in motion and formalise the process by which goods or services are exchanged for a monetary value according to the rules of consideration.
United Nations Convention on Contracts for the International Sale of Goods (CISG
The Netherlands is a party to the United Nations Convention on Contracts for the International Sale of Goods (CISG), which is also known in the Netherlands as the “Vienna Sales Convention”. The CISG is an international convention that contains uniform rules for the conclusion of contracts, performance and the consequences of a breach of contract. As soon as both the buyer and the seller are from contracting states, the UN Convention on Contracts for the International Sale of Goods (CISG) applies. The CISG is therefore also applicable if Dutch law is applicable to a contract for the international sale of goods.For example if the contracting parties have chosen Dutch law in their contract.However, the parties may also decide to expressly exclude the application of the CISG (or individual provisions thereof) in their contracts, e.g. in general terms and conditions. In this context, it is advisable to consult a Dutch lawyer. Our specialist lawyers in Amsterdam are happy to inform and advise you on the advantages and disadvantages of excluding the CISG in your contract for the international sale of goods.
NON-APPLICABILITY OF UN LAW OF SALE IN THE NETHERLANDS?
The normal case of application of the UN Sales Convention is the purchase of goods between commercial sellers from different party states of the UN Sales Convention, including Holland. The parties do not have to be merchants or have the nationality of one of the party states. What is decisive is the usual place of residence and the place of business . The UN Sales Convention does not apply to consumer contracts. As explained above, under Dutch law you can also choose not to declare the CISG applicable to your contract of sale for the international sale of goods. However, when it comes to the inapplicability of the UN Sales Convention, there are some situations in which the rules of the CISG do not apply despite the applicability of Dutch law. This is the case, for example, if the parties have expressly excluded the application of the CISG in their contract, if the contract is a business to consumer contract (b2c contract), or if it is a contract of sale for certain types of goods, for example aircraft.
PURCHASE CONTRACTS AND GENERAL TERMS AND CONDITIONS under Dutch law
General terms and conditions can be used by both the selling and the buying party with regard to a purchase agreement in the Netherlands. Note that general terms and conditions of purchase or sale often set out the most important points. For example, think about the limitation of liability, the competent court in case of dispute and what guarantees apply. It is important that you know which general terms and conditions apply to your purchase agreement in the Netherlands and how you can effectively use or reject them.
BREACH OF A CONTRACT FOR THE SALE OF GOODS under Dutch law
For many contracting parties, it is particularly important to specify the consequences of a breach of a contract for the sale of goods under Dutch law in the contract. In such a case, it is quite possible that the seller or the buyer will want to terminate the contract. For example, if the goods delivered do not meet the contractual quality, the buyer will return the goods and demand a refund of the purchase price paid. Under the CISG, a fundamental breach of contract by one party gives the other party the right to terminate the contract. Unfortunately, the CISG does not define what constitutes a fundamental breach of contract. In this respect, however, Dutch law is broader than the CISG. This is because Dutch law provides that any breach of contract gives rise to a right to terminate the contract in whole or in part and not only a fundamental breach of contract. As a result, under the CISG it is more difficult to establish a right of termination based on a breach of contract.Irrespective of whether the CISG is applicable, it may be possible to include a clause in the sales contract specifying what kind of breach or what particular breaches give rise to a right of termination for one or both parties. Such a provision would be an expression of contractual private autonomy and can therefore be agreed between the parties.
WHAT ARE THE IMPORTANT CLAUSES IN A DUTCH CONTRACT?
Your sales contract in the Netherlands (on the international sale of goods) should contain important clauses in a Dutch contract on the inspection of the goods, the retention of title, and the transfer of risk. In addition, it should be specified which law applies to the contract (e.g. Dutch or English). For example, with regard to the inspection of the goods it should be stipulated in the contract that the buyer is given a reasonable opportunity to inspect the goods in order to satisfy himself as to their condition, quality and further contractual nature before he enters into the contract. In addition, it will be important for the seller to retain title to the goods and this will not pass to the buyer until the purchase price for the goods has been paid in full and received by the seller. Such a retention of title clause could therefore also be included in a contract for the sale of goods. An important contractual area is that of the passing of risk. A purchase agreement in the Netherlands may contain a clause stating that the risk of deterioration or loss of the goods owed does not pass to the buyer until the goods have already been delivered by the seller (transfer of risk). This means that until delivery, the seller is liable for the loss or deterioration of the goods and the buyer may then have a claim for damages. In addition, for the avoidance of doubt, the contract of sale in the Netherlands may not only mean that Dutch law applies, but also that the United Nations Convention on Contracts for the International Sale of Goods (“Vienna Convention”).
SALE OF CONSUMER GOODS UNDER DUTCH LAW
Contracts for the sale of goods are of course not only concluded between two businesses. Many businesses also regularly conclude such contracts with consumers. In these circumstances, it is important to know the applicable mandatory consumer protection laws under Dutch law. Under Dutch law, a consumer is any natural person who acts for purposes other than his or her trade, business or profession.
Mandatory consumer protection laws can have important effects on the rights and obligations of the parties to a sales contract. For example, there is a reversal of the burden of proof in relation to defective goods. If goods are found to be defective within the first six months after delivery, it is presumed that the defect was already present at the time of delivery; it is up to the seller to prove otherwise.
Dutch LAWYER SPECIALIzED IN purchase agreements
Our team of Dutch lawyers in the Netherlands (Amsterdam) has a strong reputation in (international) contracting. Would you like to obtain advice on initiating a procedure, the annulment or enforcement of an award, or would you like to know more about the best clauses in your purchase agreement in the Netherlands? Please contact Remko Roosjen or one of our other Dutch lawyers in Amsterdam.
T: +31 (0)20 – 210 31 38
Contact: Remko Roosjen | Dutch lawyer specialized in purchase agreements in the Netherlands