Answering the research questions

From the analysis and the practical research on which this book is based, it is evident that the doctrine of the broken-off negotiations is of great interest to the legal practice. Because of the development of this doctrine, more and more (legal) questions are answered but each time more new questions are posed which have not all been answered yet. This book contains a number of recommendations on the subject, taking into account the principles of the freedom of contract and the party autonomy (partly arising from the freedom of contract) as leading principles of our Dutch law of obligations which, since the direction taken by the Supreme Court in the JPO/CBB judgment, seem to win more ground compared to case law preceding this judgment.

That the freedom to unilaterally break off negotiations, as arising from the principle of freedom of contract, is not without limitations was already obvious since the Plas/Valburg judgment. Are there no "other circumstances" which make breaking the negotiations off unacceptable, then will have to be examined whether there exists a legally relevant trust in the formation of the agreement on the part of the opposing party of the party breaking off the negotiations. Such trust in the formation of the agreement may not be assumed too easily. Since the JPO/CBB judgment the threshold has already been raised considerably regarding accepting legally relevant trust in the formation of an agreement but the practical research shows that the interviewed lawyers and company lawyers want to raise the threshold (even) higher than generally follows from case law (please see research question a). The legal practice therefore seems to want to hold on to the principle of the freedom of contract longer than case law and literature. As regards case law I find that there are large differences in the extent of the restraint exercised by the courts when assuming lawful trust in the success of the negotiations, but that eventually a violation of the general leading principle of the freedom of contract is deemed to be justified the moment the interests of one of the contracting partners suffer too much or if because of actions on the part of the opposing party trust has been created that the negotiations will be concluded successfully or if there are special circumstances on the basis of which honouring these interests has to prevail (please see research question a).

To prevent this trust from arising in the formation of any agreement of the kind negotiated about, in practice (contractual) conditions precedent are often used. For these conditions may indeed ensure that lawfully relevant trust cannot arise or only much less, be it that the efficacy of the reservation in question strongly depends on the nature and legal interpretation thereof and the measure of consistency ta-icing into account with regard to uphelding the condition (please see research question b).

The result of the legally relevant trust in the formation of an agreement arising is that an obligation is created to continue negotiations and/or to compensate lost revenue, be it that if there is no legally relevant trust but "other circumstances" which make breaking off the negotiations unacceptable, in addition to a claim to continue the negotiations there is only a right to compensation of the costs incurred (please see research question c).

For instance legally relevant trust in the formation of an agreement may not be assumed as quickly as before which is why negotiations may be broken off for a longer period without liability to pay compensation. Nonetheless, the practical research shows that the interviewed legal practitioners envisage a much larger role for these principles. In any case, with respect to some very important parts of the doctrine of the broken-off negotiations I observe a discrepancy between the requirements of the legal practice with regard to the direction in which the law should develop on these points and current case law and literature.