Trade

Handel Dorhout Advocaten

The Netherlands is a trading nation. This was already the case at the time of the VOC and it still is. We owe our important position in world not only to our strategic location at the sea and at large river mouths, but it has just as much to do with our national character.

Business is done locally and regionally, but it is increasingly taking place in a global setting. Emerging markets provide opportunities for growth, but also pose competitive risks and problems caused by ignorance of the culture of new countries. Where we used to solve disputes with (too) much vigour, today this is different.

Questions encountered by large and small companies in national and international trade are largely variations on the theme: how can I protect myself? (Credit) insurance can reduce risks, as well as judicious use of payment options. But of course, an important part of the protection is found in a good/smart legal formulation of agreements/contracts.

Often the legal part goes wrong because people are insufficiently aware of the risks and for convenience’s sake assume “that it will be fine.” But in practice it often happens that the order confirmation/contract fails to provide the sufficient level of protection that was assumed. The retention of title turns out not to work, or the choice of law proves not to be adequate. Or, the price increases in raw materials or transport cannot be passed on, so the margin is lost, or even turns into a loss. For trade the following is also important: what are the contents of the Incoterms 2010, and what do they mean for the deliveries and costs? And what role is played by EC law and the CISG? Can I make cooperative agreements with competitors, or is this in breach of the Competition Act (or the European competition rules?). Many rules apply that business people do not know about. That is not unusual, but it is important that people are aware of the risks that entails.

To avoid unnecessary costs and subsequent losses, a good assessment of risks and proper recording of the agreements in contracts are of great importance. We are a partner who can support you with this.

For questions about this sector please contact Wietze Kastelein.

I have delivered more than 100,000 euros’ worth in sheet material to a major client of mine. He still has not paid. Can I now simply take back the delivered goods?

We can roughly distinguish two situations: the goods are still with the customer as unprocessed stock or they have already been processed. In the first case, if things are still in the same condition as when they were delivered, they can be reclaimed, relying on the right to claim back goods. This authority expires, however, both when six weeks after the date when the purchase price should have been paid and 60 days of storage with/on behalf of the buyer have passed. If a valid retention of title has been agreed on – which for example is done by application of general terms and conditions which include retention of title – this can also be relied upon. It is also essential that the goods supplied can clearly be identified as your property.

However, if the goods have been processed into a new product or building, the ownership of the goods has been transferred to the owner of that new product or building.

When unpaid goods possibly need to be recovered, there are often a number of issues up for discussion, such as identifiability of the goods and validity of alleged retention of title: it is therefore advisable to obtain advice from a Dorhout lawyer in good time.