Mastertraining Dangers of "Nederengels" in Dutch contract drafting **
NOvA 5 J (PO)
- Met veel aandacht voor de actualiteit en toegesneden op de juridische praktijk!
This course deals with contracts drafted in English and governed by Dutch law. It is about the correct use of Anglo-American terms in Dutch contracts. Correct use relies on understanding the reason for the term in Anglo-American law and how it differs from a Dutch term that appears to be the same or similar. The course provides an extensive survey of the many legal terms and expressions regularly appearing in contracts drafted, or read, in English by Dutch lawyers, and will include: (entire) agreement, guarantee, warranty, condition, representation, rescission, termination, title, damage, loss, co- and joint ownership. The essential concepts of consideration and privity will also be explained. This will guide the drafter’s safer use of such mental concepts as: boete, exoneratie, inspanningsplicht, overmacht, hardship, derde beding, hoofdelijk aansprakelijkheid, guarantie, vrijwaring, (mede-) eigendom, schade, registergoederen.
The tutor will explain the true meaning of these legal terms, as well as the reason for and best use of them by Dutch drafters. The consequences of incorrectly using them or failing to understand them will be explained: see, JOR 2007/166 Hoge Raad, 19-01-2007, Conclusie Advocaat-Generaal ov. 3.4.3 en ov. 5.19 Meyer Europe BV/Pontmeyer BV.
Extensive reference will be made to the differences between Dutch law and the Anglo-American legal concepts.
The tutor's long experience of practising in the Netherlands has shown that a better understanding of the meaning and use of Anglo-American terms removes many dangerous complications for Dutch lawyers. An insufficient understanding of these legal terms leads to several problems: confusion of thought; complexity of drafting; failure to achieve the client’s needs, and, most dangerously, a failure to achieve real consensus between the contracting parties.
There is frequent source citation from case law and legislation (Dutch, English, American, Australian, Canadian, and supranational). Model clauses will be supplied.
This is often difficult ground for any Dutch lawyer dealing with contracts or lawyers from the Anglo-American sphere, and also lawyers or parties from the Scandinavian or Asian legal spheres who use Anglo-American terms and concepts in their contracts with, or involving, Dutch parties.
- role of HR 19-01-2007 (Pontmeyer)
Certain basic differences between Dutch & Anglo-American law outlined
Role of culture & law briefly explained:
- pacta sunt servanda & bona fides
- pre-contractual good faith
- interpretation of commercial contracts
Three fundamental principles of Anglo-American law outlined
The often strongly divergent consequences resulting from certain clauses will be explained, e.g., clauses relating to:
- entire agreement
- overmacht en force majeure; hardship
This will entail an explanation of the meaning of, and difference between, certain basic terms common in Dutch and/or Anglo-American law, e.g.,
- overeenkomst; agreement
- consideration and privity
- derde bedingen
- hoofdelijk aansprakelijkheid
- guarantie; guarantee & warranty
- warranty & condition
- voorwaarden; terms
- rescission & termination
- schade; damage & loss
- eigendom; possession & title
- mede-eigendom; co- & joint ownership; trust
It will also become apparent why certain formulations are unenforceable/non-binding should an Anglo-American law be applied, even as part of Dutch law.