Contract and Procedural Law
There is a level of interaction between contract law and procedural law. A contract has little value if you cannot conduct proceedings over them and are unable to enforce compliance. Many proceedings are about contracts and procedural law is about who can conduct proceedings, how proceedings operate, and how rulings are enforced. Contract law and procedural law are a lawyer's bread and butter. JPR's lawyers know the requirements for a good contract and can conduct proceedings should things (nevertheless) go wrong. They know exactly what to look out for.
There is a multitude of different types of contracts. Lawyers prefer to use the term agreements. Examples:
• Order (mandate, mediation, agency, medicine);
• Contracting work;
The Dutch Civil Code has general rules that apply to all contracts. However, parties can usually deviate from these rules in a contract and agree upon something else.
Moreover, the Civil Code has regulations for special agreements, examples of which have been given above. These regulations usually cannot be deviated from as to protect the tenant, lessor, employee and insured party, for example.
Many companies have general terms and conditions; the Civil Code contains regulations for these. Furthermore, there are more and more European regulations.
Contracts with consumers contain a lot of additional rules that cannot be deviated from. For instance, the consumer may terminate a range of provisions in general terms and conditions that are very common for companies if they are unreasonably onerous. The same principle applies if the consumer has not received the text of the general terms and conditions before or upon entering into the agreement.
For internet sales, all sorts of information must be stated clearly, and there is a 14-day buyer's remorse period. Within this period, the consumer can easily terminate the agreement.
The Netherlands Authority for Consumers & Markets (ACM) supervises contracts with consumers.
Finally, there is an increasing amount of European regulations for contracts with consumers. The court applies these regulations of its own motion, even if the consumer does not appeal to these regulations.
Procedural law also has additional regulations for contracts with consumers. For instance, a consumer can conduct proceedings at their own district court, even if the other party is established in a different country.
Most proceedings concern collection proceedings. A customer is unwilling to pay. Telephone calls and demands result in a lot of excuses, but no money. Without a verdict from the court, the creditor cannot enforce payment. To achieve this, they must conduct legal proceedings in court. For claims lower than € 25,000, the subdistrict court has authority and there is no requirement for a lawyer. A lawyer is required, however, for higher claims. Procedural law encompasses regulations for court proceedings.
Proceedings begin with a summons. A bailiff delivers a summons. There is only a point to a defence if the claim is false. Hence, in most collection proceedings, the defendant will default. The court will in that case automatically grant the claim unless the European consumer law applies.
If the defendant disagrees with the claim, they can write a written defence. For subdistrict court proceedings, they can do so themselves, but a lawyer is required for court proceedings. Usually there will be an oral hearing. The court will then determine how to continue the proceedings. After the proceedings, the court will present their verdict. Upon the final verdict, there is the option of going to the court of appeal unless the claim is lower than € 1,750. An appeal always requires a lawyer. The proceedings take place in writing. Upon the ruling of the court of appeal, it is possible to appeal to the Supreme Court. This requires a Supreme Court lawyer. The Supreme Court will only determine if the law has been applied correctly and if the motivation is comprehensible.
A number of special proceedings do not begin with a summons, but with an application. The court will send a copy to each respondent. These can then submit a statement of response. This is then followed by oral proceedings. In the subdistrict court, a lawyer is not a requirement, but it is a requirement in court. The ruling is called a decision. Usually there is an option to appeal to the court of appeals, but only a lawyer can do so. Upon the decision by the court of appeals, it is still possible to appeal to the Supreme Court. A Supreme Court Lawyer can only do this, too. For these appeals, too, the Supreme Court will only rule on the accurate application of the law and the comprehensibility of the motivation.
Procedural law also regulates compliance with the rulings of the court. The rules also apply to notarial deeds in which a debt is recorded. Only a bailiff is authorised to attach. Attachment of a bank account and attachment of salary or benefits are most common. Normally, a creditor is only able to attach based on a ruling or judgement. This is also possible if the court in preliminary relief proceedings grants leave to do so. This always requires a lawyer. In these cases, the attachment will be provisional or precautionary. The attachee no longer has access to the goods, but the attacher will not receive anything yet. The other party will not be heard for the preliminary relief proceedings. The bailiff will give the attachee a copy of the leave issued by the court in preliminary relief proceedings upon the attachment. The court can lift the attachment, but this will almost never be successful without a bank guarantee for the full claim including interest and costs. The court in preliminary relief proceedings will set this sum in their leave. The sum expires if the attaching party does not start proceedings regarding their claim within fourteen days. If their claim is granted, then they can continue their attachment. Should the party be denied their claim, then they must directly compensate the damage and the consequences of the attachment. These damages can become very high. Attachment is a very effective tool for forcing matters, but is not without risks. For more information, see Attachment.
Contract and procedural law is a craft, and JPR's lawyers have a unique understanding of it.