Afgebroken onderhandelingen en gebruik voorbehouden (R&P nr. 173) 2009/:Recommendations and conclusion

Afgebroken onderhandelingen en gebruik voorbehouden (R&P nr. 173) 2009/

Recommendations and conclusion

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On the basis of the above the following recommendations can be formulated:

1.

The court deciding questions of fact, where possible, needs to explain the allowance or rejection of a claim based on unlawfully broken off negotiations more extensively and more concretely to indicate on the basis of which facts and circumstances legally relevant faith in the formation of an agreement has to be assumed or not.

The doctrine of the broken-off negotiations and in particular the answer to the question when the existence of legally relevant trust in the formation of the agreement blocks unilaterally breaking off negotiations, by definition is highly casuistic. And there is the "strict and restraint-demanding standard" required by the Supreme Court the court deciding questions of fact also has to apply and the various ways the terms "strict" and "restraint-demanding" are interpreted by the lower courts. For the legal practice it is very important that the broadest possible frame of reference is created in case law to reflect a concrete situation. This will only be possible if the court deciding questions of fact provides sufficient insight into the substantiation and in particular the weiglit of the factors which induced the court to accept or not accept justified trust in the formation of an agreement.

2.

It is advisable, in cases in which negotiations are broken off legally, to create clarity in case law as regards a) the question under which circumstances a right to compensation of negotiation costs exists, b) which costs are eligible for compensation in this situation and c) what is deemed to be the legal basis of this compensation.

Neither in literature, nor in case law is there unity about the answer to the questions posed above under a) up to and including c). This makes legal actions about compensation of costs in the event of lawfully broken off negotiations in a sense comparable to playing Russian roulette, leading to legal uncertainty and (possibly even) legal inequality in judgments of comparable cases.

3.

It is advisable, also in view of the relatively large number of legal proceedings in this field and the large differences in legal consequences, if the legal practice would handle the use of conditions precedent in the pre-contractual phase more consciously.

Conditions precedent are regularly, be it for different reasons, applied in the negotiation trajectory. There are relatively many legal proceedings about the legal consequences of the application of conditions precedent. The legal practice seems insufficiently aware of the possible complications that may arise when using various conditions precedent (for instance in the field of doctrines such as: the potestative condition, explanation, abuse of rights, conditional obligations, tort, etc.).

Finally: the doctrine of the broken off negotiations, even though the foundation was laid over a quarter of a century ago and has considerably developed since, is a fascinating doctrine which goes to the core of our law of obligations and without a doubt will captivate us with new developments in the future as well

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