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[ID] => 7880
[post_author] => 26
[post_date] => 2012-07-31 00:00:00
[post_date_gmt] => 2012-07-31 00:00:00
[post_content] =>
Koninklijke Auping B.V. (hereinafter: Auping) is a bed manufacturer who sells its products at Auping stores and at specialized bed- and furniture stores. Auping wants to adopt a new distribution strategy in which the amount of Auping stores should increase at the expense of stores which sell various brands. Lubbers Wonen B.V. (hereinafter: Lubbers) is such a furniture store which sells products of various brands. Lubbers has also been selling Auping products for over twenty years. Auping wants to terminate the contract with Lubbers. According to Dutch law, the question whether an agreement for an indefinite period can be terminated, is determined by the contents of the agreement and the applicable provisions in the law. In this case, the agreement itself did not provide regulations in how to terminate the agreement. This leads to the conclusion that in principle the agreement is considered to be terminable. However, the Dutch requirements of reasonableness and fairness may cause that termination is only possible if a sufficient weighty reason for termination exists.
According to the Dutch Court, Lubbers has adequately established that she is to a considerable extent financially dependent on the agreement with Auping. Therefore, Auping had to come up with a weighty reason to justify the termination. The decision to adopt a new distribution strategy is based on quantitative requirements. The imposition of such requirements is allowed, provided that these requirements rely on objective criteria and are not characterized by randomness. Auping’s intention to realize more Auping stores is comprehensible, but the termination of the agreement with Lubbers is not necessary to make these stores profitable. Auping did not convince the Dutch Court the quantitative requirements to adopt a new strategy were objectively applied and therefore Auping failed to come up with a weighty reason to justify the termination.
Dutch Court Zwolle March 23rd, 2012,IEPT20120323.
[post_title] => Termination Distribution Auping agreement denied
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[post_modified] => 2019-06-10 15:23:32
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[post_date] => 2012-07-31 00:00:00
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[post_content] =>
The Dutch companies DEPT and JC RAGS ordered the supply of jeans by the Portuguese company SICI 93 Braga. This company had the jeans manufactured in Brazil.
Due to earlier conflicts between the Dutch companies and the Brazilian manufacturer, the actual manufacturing of the jeans was delayed. Because of this the fatal date of delivery of the jeans was also delayed. The jeans were accepted by DEPT and JC RAGS and delivered to shops in order to be sold. But because of the late date of delivery DEPT and JC RAGS refused to pay for the delivered jeans. SICI had to go to a Dutch court to get DEPT and JC RAGS to have to pay the invoices. Parties discussed about the agreed date of delivery.
The court in ‘s-Hertogenbosch ruled that even when goods are delivered too late, the invoices have to be paid. Because SICI disputed that the goods were delivered too late, SICI got the opportunity to prove that such a delivery date was agreed, that the goods were not delivered too late. DEPT and JC RAGS claimed damages because of the late delivery and wanted to compensate their damages with the invoices. The court gave DEPT and JC RAGS the opportunity to prove their damages because of the late delivery.
The court heard witnesses. Then the court ruled that SICI had not succeeded in proving that a new date of delivery was agreed. SICI had agreed the new date with the agent of DEPT and JC RAGS but the agent had not communicated this new date with DEPT and JC RAGS.
The court also ruled that DEPT and JC RAGS had not succeeded in proving that they suffered damages because of the late delivery. DEPT and JC RAGS already agreed upon a later date of delivery than originally agreed. Because of this the customers of DEPT and JC RAGS already had damages and it was not proven that the claimed damages were the direct result of the delivery later than the date agreed with SICI.
Because of this the court ruled that DEPT and JC RAGS have to pay SICI the invoices, added with interest and legal fees.
Lessons to be learnt:
- Make sure all agreements on delivery dates are put on paper and confirmed by the customer.
- When goods are not delivered in time, in principal the invoices have to be paid unless damages resulting from the late delivery are proven.
For more information please contact:
Jos van der Wijst
Tel: +31 (0) 411 657521
Email: wijst@bg.legal
[post_title] => Dutch companies DEPT and JC RAGS have to pay Portuguese supplier of jeans
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Koninklijke Auping B.V. (hereinafter: Auping) is a bed manufacturer who sells its products at Auping stores and at specialized bed- and furniture stores. Auping wants to adopt a new distribution strategy in which the amount of Auping stores should increase at the expense of stores which sell various brands. Lubbers Wonen B.V. (hereinafter: Lubbers) is such a furniture store which sells products of various brands. Lubbers has also been selling Auping products for over twenty years. Auping wants to terminate the contract with Lubbers. According to Dutch law, the question whether an agreement for an indefinite period can be terminated, is determined by the contents of the agreement and the applicable provisions in the law. In this case, the agreement itself did not provide regulations in how to terminate the agreement. This leads to the conclusion that in principle the agreement is considered to be terminable. However, the Dutch requirements of reasonableness and fairness may cause that termination is only possible if a sufficient weighty reason for termination exists.
According to the Dutch Court, Lubbers has adequately established that she is to a considerable extent financially dependent on the agreement with Auping. Therefore, Auping had to come up with a weighty reason to justify the termination. The decision to adopt a new distribution strategy is based on quantitative requirements. The imposition of such requirements is allowed, provided that these requirements rely on objective criteria and are not characterized by randomness. Auping’s intention to realize more Auping stores is comprehensible, but the termination of the agreement with Lubbers is not necessary to make these stores profitable. Auping did not convince the Dutch Court the quantitative requirements to adopt a new strategy were objectively applied and therefore Auping failed to come up with a weighty reason to justify the termination.
Dutch Court Zwolle March 23rd, 2012,IEPT20120323.
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*RECURSION*
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