The law of obligations is described in Book 6 of the Dutch Civil Code (BW) and includes the rules that apply when two or more parties enter into an agreement from which rights and obligations arise for them.
If, for example, the parties enter into negotiations about the sale or purchase of a property, they intend to enter into an agreement within the meaning of Section 6:217 of the Dutch Civil Code.
The parties are free to determine the contents of an agreement, and if an agreement is actually concluded, it will result in rights and obligations for the parties, which can be enforced in the event that one of the parties does not respect those rights and obligations.
Book 7 of the Dutch Civil Code defines a contract of sale and purchase as an agreement whereby one party undertakes to deliver an item and the other party pays a price for this in money.
In this case, ‘property’ means everything that can be sold or bought.
We speak, in Book 7 of our Civil Code, of consumer law when a contract is concluded between a party acting within the scope of his trade, business, craft or profession and a party, a natural person, acting for purposes outside his trade, business or profession.
In consumer law, the consumer is at the centre and the law offers the consumer extra protection as a contracting party.
This protection is particularly noticeable in the case of the consumer purchase, the purchase agreement concluded between an entrepreneur and a consumer, or if the entrepreneur has declared general terms and conditions applicable to the contract he has concluded. If a contract is concluded with a consumer, the general terms and conditions declared applicable must comply with the strict rules set out in Book 6 of the Dutch Civil Code.
The rules governing the contract for work are also included in Book 7 of the Dutch Civil Code.
There is a contract for work when one party, the contractor, undertakes towards the other party, the principal, to construct and deliver a material work without employment, for a price in money to be paid by the principal.
In the water recreation sector we encounter this type of contract mainly in the case of a yacht building contract, a refit contract or a repair contract.
In the case of a contract for work, there are no strict conditions with which a consumer purchase must comply.
The rental agreement is also regulated in Book 7 of the Civil Code, but concerns the rental and leasing of residential property and business accommodation.
Rules for the rental of berths and storerooms (summer and winter storage) and/or for the rental of vessels are not found in the Civil Code.
However, our law does know – again in Book 7 of the Civil Code – rules for storage and it happens quite often that the contents of the winter storage contract cannot be qualified other than as a contract for storage instead of a rental contract of actually a number of square metres of floor space. The liability of the storage contractor goes beyond the liability of the lessor.
In short, liability law regulates the compensation of damages.
Liability law determines in which cases one of the (contracting) parties must compensate the damage incurred and also who is liable for what.
Contract law regulates the legal relationships between parties that arise through the conclusion of contracts.
Civil procedural law are the rules that apply the moment a dispute is submitted by (one of) the parties to the court for adjudication.
Civil procedural law is the lawyer’s tool for highlighting his client’s interests as best as possible vis-à-vis the judge, or for (procedurally) safeguarding those interests.
A good and up-to-date knowledge of procedural law often gives the lawyer an advantage in court over the opponent’s legal assistance provider who is less equipped in this respect, so to speak.
In the event of an attachment of property, the owner temporarily loses the use of his property.
In a number of cases, someone’s property can be seized before the court has ruled on the legal position of the person levying the seizure; we call this a prejudgment attachment or an attachment to secure the recovery of the claim.
A prejudgment attachment is levied if there are indications that the counterparty is making the objects of the attachment ‘disappear’ before the court has been able to pronounce judgment and, consequently, there is no longer any recourse for the claim.
Arrest of vessels requires knowledge of a number of specific rules that may be expected from a nautical lawyer.
The right of retention is regulated in Book 3 of the Dutch Civil Code (BW).
Article 3:290 of the Civil Code defines the right of retention as follows:
Right of retention is the power, in the cases indicated by law, to a creditor to suspend the fulfilment of an obligation to deliver an item to its debtor until the claim has been settled.
The right of retention is, in the water recreation sector, a formidable weapon at the entrepreneur’s disposal, and one which often saves him the high costs of a prejudgment attachment.
Van Emstede & Slager Advocaten covers all the aforementioned areas of law with a focus on the entrepreneur in the water recreation sector.