IBO Law 2013 -2014

Mr J.T.M. van Manen LLM

2 stages
First stage:
preliminary stage / precontractual: working to a contract
2nd stage :
contractual stage : performing the
contract

Anti competition clause

stage 3?
What is an anti competition clause?
That is a clause in a labour law
contract ( e.g.) which restricts the
debtor in his further career once the l.l.
contract is terminated
So this clause works after the contract
3rd stage: post contractual stage

Nothing signed are parties bound?

Answer:This is a widespread
misunderstanding!
Lots (most ?vM) contracts are valid
without signature unless the law (of
the country) requires a written version
Examples : formal contract lease /
donation notary

The ponr : Explain !

The point of no return is the invisible
point during the negotiations of a
contract which, once past by the
negotiating parties, parties oblige to
continue their negotiations
i.o.w. : one party cant withdraw
himself from the negotiations without (
legal/financial) consequences

Legal danger ic of abrupt stop of

negs
Answ: the danger is that Kees, resp.
the company of Kees is obliged to pay
damages:
a. Initial costs
b. Half way damages
c. Complete damages incl. profits
Depending of circumstances ( factual
problem)

Letter of intent ( l.o.i)?

Answ: = a stage within the
negotiations process undersigned by
both parties by which they express
their mutual intentions towards each
other
Recent example: PWC Booz & Co 3110-2013
Conditional merger --- L.o.i.

Difference between L.o.i. normal

contract?
Answ: L.o.i. = a certain stage before a
final contract is agreed. A stage in
between
normal contract = the final
agreement; weve struck a deal !
A contract is enforceable by law !

Doing business in good

faith?
Answ; in fact you are protected by law / court
But a danger is lurking here!
Art 3.11 DCC : Where good faith of a person is required
to produce a juridical effect, such person is not acting
in good faith if he knew the facts or the law to which
his good faith must relate or if, in the given
circumstances, he should know them.
Impossibility to inquire does not prevent the
person, who had good reasons to be in doubt, from
being considered as someone who should know the
facts or the law

Dirty trick?
Answ: A dirty trick is a manipulation used
during
negotiations to force the other party to make
(an) unnecessary concession(s) to close a deal
Example(s)?
- Phony facts ; Personal attacks; intimidation;
take it or leave it ; Bluff ( chicken) ; threat;
Time slots.
Main problem : to recognize the trick and to
stay calm know your dos !!!! ( education?)

Breach of contract 3 ways

Answ:
1. Not performance of the contract
2. Half performance of the contract
3. Bad performance of the contract
Proof / evidence : there is allowed a lot !
Free evidence theory (distinct from
criminal law!)

Diff. between b.o.c. and

tort?
Answ:
B.o.c. is possible once a contract is closed.
There is a contract
Tort is possible without a contract
It is possible that b.o.c coincides with tort, ex:
I borrow a book, the book is damaged by my
toddler, a boy of 4 yrs, I return the damaged
book

Legal consequences of b.o.c. / tort?

Answ:
1. Still perform ( + damages)
2. Perform ( + damages)
3. Annulment + damages ( if
performance is not possible
anymore)
Annulling is contract could be
dangerous why?

Writers definition of contract right?

Answ:
See above slide no. 4
Good luck !

Draft contract
Elements 4
1. Names of parties ( legal persons
problems
c.o.c. excerpt
2. Consideration(s) motives of parties

interpretation courts
3. Body of contract law elements *
4. Date signatures originals / copies

Contract elements + list of

contracts
Example : Labour law contract
elements
1. Parties employer ( legal person
problems) employee
2. Work no general descriptions; e.g.
all sort of occurring activities
3. Remuneration / wage / salary /
expenses / income tax elements
4. Hierarchy manager / superior

Contract examples
1. Purchase agreement
2. Consumer sale
3. Barter contract
4. Exchange contract
5. Commission contract
6. Intermediary contract
7. Agency contract
8. Mandate
9. Contract for medical treatment
10. Travel contract
11. Deposit
12. Surety ship
13. Contract of settlement etc. etc.
14. Hire purchase
15. Tenancy agreement
16. Lease
17. Agricultural holding / farming lease
18. donation
19. Loan for use / commodatum
20 .Loan for consumption
etc. etc.