Under Dutch law a contract comes about by offer and acceptance, and no particular form is required: an agreement reached by email, or even orally, binds. What decides whether you are bound is not the presence of a signature but whether the other party could reasonably infer your assent from your words or conduct. That is why the moment to be careful is well before the signature block.
Is the person opposite you authorised?
Start here, because everything else is worthless if the answer is no. Check the commercial register for who may represent the company and whether their authority is limited to a certain amount or requires a second signature. Where the person signing lacks authority, the company is in principle not bound, unless it created the appearance that authority existed – a fact-bound argument you would rather not have to run.
Whose general terms apply?
If both parties refer to their own conditions, Dutch law gives priority to the set referred to first, unless the second party expressly rejects the first. A clause buried in an email footer saying that your conditions apply is not an express rejection. Settle this in the contract itself rather than leaving it to the correspondence.
Read what the applicable conditions say about liability, delivery periods and termination, and check that they were actually provided before the contract was concluded – conditions that were not made available can be annulled.
The clauses that decide disputes
Five recur. The description of what is to be delivered, which should be specific enough that a stranger could tell whether it was done. The price, and whether it can be adjusted. Duration and termination, including automatic renewal and notice periods, which is where long-term commitments hide. The limitation of liability, including whether it excludes consequential loss and whether the cap is realistic against the value at risk. And the dispute clause: which court or arbitral tribunal, and which law.
A penalty clause deserves separate thought. It converts a loss that would be hard to prove into a fixed sum, which is often the only practical remedy for a breach of confidentiality or non-competition. Courts can moderate a penalty that is manifestly excessive, so a proportionate figure is more use than a punitive one.
What is not in the document
Dutch contracts are interpreted not only by their wording but by what the parties could reasonably expect of one another in the circumstances, and reasonableness and fairness can supplement or limit what was agreed. Pre-contractual statements, brochures and emails therefore matter, which cuts both ways: keep them, and be careful what you promise in them.
Before you sign
Make sure the version you are signing is the version you negotiated, that every annexe referred to is attached, that the parties are correctly named with their registration numbers, and that anything agreed verbally has been written in. Keep a complete signed copy with its annexes. A dispute two years later is decided on the document, not on the recollection.
Advice
We review and draft commercial contracts and general terms, and advise where a contract has been signed and a problem has already arisen. Please contact Law & More.
