A wild car chase
I put together the general terms and conditions for the Dutch branch of an internationally operating car hire company. They are utilised for the hire of their vehicles and have produced considerable benefits for dealing with people who hired the cars and returned them damaged. If the hiring party refused to pay for the damage, I conducted the legal proceedings on behalf of the car hire company. I won all the cases, thanks in part to the carefully worded general terms and conditions.
One of the proceedings was against a temporary employment agency that was specialised in seconding Polish employees in the Netherlands. This temporary employment agency had hired a car for its Polish employees from my client. The employees caused serious damage to the car. The damage was a result of excessive alcohol consumption. After a wild car chase by the police, the employees left the heavily damaged car in a ditch.
The temporary employment agency refused to pay for the almost € 25,000 damage to the car, because they were of the opinion that it was not their fault. However, in the general terms and conditions it clearly states that the person hiring the vehicle is always liable for any damage whatsoever, even if they allow someone else to drive the rental car. Above all, according to the law, the hirer must return the hired property in its original state. The courts found completely in our favour. The temporary employment agency was required to pay the complete damages to my client, increased by the cost of the legal proceedings. Because the temporary employment agency continued to refuse to pay even after the judgement had been served, it was necessary to seize under a warrant of execution all its possessions and bank accounts before they changed their mind.
In another case I claimed, on behalf of this company, for the damage caused by an ex-employee to a car that he had been loaned while still in employment. The ex-employee defended his actions with the argument that according to law he need only pay for intentional damage. We responded that this in itself was true if the damage was caused during the performance of work. In this case, the damage was caused outside working hours. Above all, it was intentional because the employee, as I had shown, had been prosecuted for driving under the influence of alcohol, which is the same as intentional damage. The judge found completely in favour of my client. The judgement was published in a professional journal. See JAR 2005/7.
Customer forced to pay
One of my clients is a pharmaceutical company that manufactures, inter alia, garlic supplements. After my client had supplied one of its customers with a delivery, the Food and Consumer Product Safety Authority ruled that, based on a new measurement method, this delivery contained too high a degree of contamination. Incidentally, at the same time, there were discussions within the European Union regarding whether or not the maximum level should be higher. Even so, the customer desired a new supply, to which my client responded.
The customer subsequently refused to pay my client for both the deliveries. They stated that the first delivery was in serious default. The customer refused to pay my client for the second delivery, because the customer was of the opinion that they had incurred high costs for the recall of the capsules. They were of the opinion that they were entitled to deduct the costs from the second delivery. My client did not agree with this.
Therefore, my client had no other option than to summon the customer. In the proceedings we pointed out that the customer had not produced any form of evidence to show that he had actually incurred any costs. Futhermore, we contested our liability for the shortcomings of the product considering that the standards were only raised after we had supplied the product. Ultimately, the Court decided that the customer still had to pay my client the agreed purchase price for the first delivery, increased by the statutory interest and the legal costs incurred by my client. The Court refused to order my client to pay for the damage stated by the customer based on the fact that the customer had provided insufficient evidence of the damage.
Builder whistled back
One of my clients had engaged a builder for an extension to his home. The builder was to install a dormer window. He had charged my client an advance of almost € 20,000 for this. After my client had paid the advance, there was radio silence from the builder. Repeated reminders did not lead to any reaction. The builder appeared to be a fraudster.
My client had no other option than to demand the paid advance back from the builder. He engaged my services. Prior to proceeding to summoning the builder I had a recovery investigation carried out. From this it appeared that the builder owned his own home. With the permission of the Court, I levied a prejudgment seizure on this property.
The defence that the builder put up did not hold water. The Court was not impressed and found completely in favour of my client's claims for the repayment of the advance with interest and the cost of the legal proceedings. The builder refused to pay voluntarily. Through the bailiff instructed by us he allowed it to come to a sale under execution. At which point the builder saw sense. He found a potential buyer who wanted to purchase his home. We only agreed to this sale under the condition that the proceeds from the sale would be used to pay my client his claims through the civil-law notary. Finally my client had all his money returned with interest.
Paid website for antique furniture dealer
A communication agency in the Eindhoven area built a complicated website for an antique furniture dealer. Because the dealer refused to cooperate in providing certain data the website could not be completed. On the basis of the recorded order agreements, the communication agency decided to send an invoice for the entire contract sum. Despite repeated reminders, this customer refused to pay the communication agency for the work they had done. Because all these attempts bore no fruit and the dealer no longer responded, the communication agency decided to engage me as their debt collecting lawyer. In consultation with my client I proceeded to summon the dealer.
The dealer put forward his defence. He stated that the website had not been completed because certain facilities were not available, such as a payment facility. On behalf of my client I replied that the dealer was entirely to blame for the absence of this (creditor's default) because he refused to cooperate in any way, such as making the necessary contact with his bank. In other words my client could not be blamed for not completing and delivering the website.
The Court requested the dealer to produce evidence, but he failed to do so. The Court subsequently found completely in our favour. The dealer had to pay my client the complete 5-figure contract sum for the website after all.
During the proceedings the dealer claimed that we wrongly summoned the legal entity of which he was the owner. According to the dealer, this was transgression of an object of the articles of association, in such a way that the legal entity was not authorised to enter into this agreement. The Court rejected this defence. Along with us, the Court considered that object descriptions in articles of association had to be interpreted broadly, that giving instruction for building a website does fit into the dealer's business operations and that the dealer had nothing to gain from relying on transgression of the object.
Nevertheless, the dealer's ignorant defence enabled us to not only levy prejudgment garnishment against the dealer's meanwhile empty legal entity, but also seize his personal possessions, including his house and business property. After the Court had allowed our claims, we could threaten with public auction thanks to these attachments. The customer eventually changed his mind and proceeded to full payment after all, of the allocated contract price with statutory interest as well as all legal costs, including the seizure costs.
The careful architects' firm
Commissioned by Eindhoven municipality, an architects' firm supervised an extensive district rejuvenation project. After completion of the project, some residents questioned the way in which this architects' firm had been involved in the pricing. They argued that the architects' firm had agreed to too high a price with the wrong building contractor and that they wrongly omitted to stipulate discounts with them. They summoned the architects' firm, after which this firm engaged me to conduct its defence.
Upon careful study of the summons, we established that the residents concerned set out numerous sloppy inaccuracies in the facts presented. In addition, we ascertained that their claims were not solidly substantiated in a legal manner. They argued, inter alia, that my client failed in the performance of the agreed obligations, but overlooked the fact that a contractual relation never existed between my client and the residents concerned. It was also apparent that the residents concerned missed out on potential discounts on the contract price through fault of their own.
The Court eventually rejected all claims against my client. The Court agreed with us that the residents concerned mixed up and confused all sorts of facts. They painted an incorrect and misplaced picture. The calculation of their claims was incorrect and they themselves were chiefly to blame. They omitted to mention, for instance, that the projects were delayed through their own fault, due to which they rightly missed out on discounts they appeared to be aware of.
The unreasonable ship owner
My client worked for a ship owner as a barge captain. After he had become disabled due to an accident at work a few years later, he discovered that the salary was not being paid in accordance with the collective wage agreement. He called his employer to account, but he denied to have employed him as a captain. He claimed he was taken on as a "skipper". My client was outraged and engaged me as his lawyer.
Because my letters did not fall on fertile ground either, I summoned the ship owner to appear before the Subdistrict Court and claimed back the salary in arrears in accordance with my client's position as a captain. The total claim had risen to a 5-figure amount. The Subdistrict Court judge ordered an examination of witnesses. It became apparent from this that several witnesses heard the ship owner say that he was going to hire my client as a captain. Based on these witness testimonies, the Subdistrict Court fully allowed my client's claims. In addition, upon our claim, he ordered the ship owner to pay the statutory increase of 20 percent over the amount in arrears, the extrajudicial costs and the costs of the proceedings.
Right before the witnesses were examined, one of the ship owner's ships went on fire. Because the parties were on such bad terms at the time and the ship owner indicated in all sorts of possible ways not to want to pay the claims voluntarily, I levied, with the court's permission, a prejudgment attachment on the insurance money still to be paid out and on the other ships owned by the ship owner. This appeared to be extraordinarily fortunate and successful. The ship owner was forced to have a bank guarantee issued. Thanks to this bank guarantee, I managed to collect for my client all the amounts the ship owner had been ordered to pay to my client.
Bank eventually cooperates with debt restructuring
My clients ran a pub. They had secured financing (a loan) to the amount of € 125,000 from the ABN Amro bank for this purpose. However, the bank lost confidence after several years and wanted to terminate the loan. My clients were not able to repay this loan all at once. The bank subsequently commenced proceedings against my clients, claiming back the full amount on the loan.
My clients could not really put forward much of a defence against this. They had agreed a loan with the bank that could be withdrawn at any given moment. The bank was simply entitled to repayment of the money it had lent to my clients. The bank did have the problem, however, that my clients were not able to pay this back within the foreseeable future. Fortunately, my clients found an external backer. The backer was only prepared to take over part of the amount to be paid back as a loan.
During the Court session, firm negotiations were held with the bank. After the bank had become convinced of my clients' miserable recovery position, the bank appeared to be prepared to accept part of the borrowed amount as payment in full settlement of the debts, providing this amount would be paid back immediately. The external financer agreed to lend this amount to my clients and to pay it to the bank. This relieved my clients of a substantial part of their liabilities.
The aftermath of the BSE crisis
My client is a supplier of calves to calf fatteners. My client also supplies the feed for fattening those calves. It gives its customers (calf fatteners) a feed reimbursement. The calves remain my client's property and are collected for slaughter by my client after having been fattened. My client granted one of its customers a loan. When the customer got into financial problems, my client wanted repayment of the entire outstanding loan.
In addition, this customer received compensation directly from the government due to the BSE crisis. My client demanded these reimbursements from the customer. It was not the customer who suffered a loss because of the BSE crisis, but only my client, who was the supplier of the calves and always remained the owner of the calves. It was therefore my client who primarily suffered business risks -as a result of the BSE crisis.
It was unavoidable for my client to summon the calf fattener to appear in court. After extensive clarification in two written rounds, the calf fattener acknowledged my client's claims. Parties then still managed to find a common ground. My client's claims were added to the loan granted and raised by that amount. The calf fattener was prepared to provide security by means of a mortgage loan. Parties agreed that my client would continue to supply the calf fattener, so that he could continue to support himself.
Reproaches on garage rejected
My clients have a garage. They were unexpectedly summoned to appear in Court by a former foreign customer. This former customer argued that my clients had repaired his car inadequately, that the car had to be repatriated for this reason and that the damaged engine had to be reconditioned. The former customer was of the opinion that my clients had to pay for this damage on account of alleged breach of contract.
We put up a defence. First of all, we observed that it was not the customer himself who summoned my clients, but his mother. However, his mother was not party to the contract. If only for this reason, the claim had to be rejected. Secondly, this customer never gave my clients notice of default and they were therefore never given the opportunity to rectify any damage suffered. Thirdly, we pointed out numerous contradictions in the expert's report produced by the customer. My client set an external expert's report against this, in which the conclusion was drawn that the damage to the car was not the result of my client's repairs.
The Court seamlessly followed our defence. The plaintiff was not a contracting party. Even if this was a mandate, the wrong person summoned. And even if the plaintiff were allowable, the Court decided that it rejected the claims. No notice of default was given and the submitted expert reports inadequately showed that the damage to the car was the result of the repairs by my clients. The claims against my clients were consequently denied and the other party was ordered to pay my clients' costs.
Bank misses out
Ten years after my client had ended her cohabitation with her then partner, she was approached by the SNS bank about a negative balance of the bank account they jointly opened at the time. We put forward the defence to the Court that although my client signed for a joint bank account at the time, she had never collected the bank card. In addition, I disputed on behalf of my client that she agreed to a credit facility for this bank account.
The judge ordered a hearing. During this hearing, she demanded further explanation from both parties. The SNS bank offered the Court to specify its claims on my client in more detail, particularly because my client and I had questions about the history of the balance for the particular bank account. In addition, the judge demanded clarification from the SNS bank about the origin of the credit facility, for instance by submitting the general terms and conditions and the agreement demonstrating approval.
After the SNS bank had subsequently submitted various documents to the court, we pointed out that they did not demonstrate that my client had agreed to a credit facility. The general terms and conditions submitted to the Court by SNS bank appeared to be from 2001 and not from 1995, the year in which my client had opened the joint bank account concerned. Neither did the agreement signed by my client show that she had also received the general terms and conditions relating to this from the SNS bank. The Court decided in our favour, denied the SNS bank's claims on my client and ordered the SNS bank to pay my client's costs.
Financial consultant liable for investment losses
My client had a financial intermediary draw up a personal financial plan in 1996. This plan basically involved this intermediary advising my client to effect an investment mortgage. This meant that an extra mortgage loan would be granted for the surplus value of the house and that the loan provided would then be used completely for investment in shares. From the estimated investment returns, a large part of the house expenses could be financed.
In 1999, this intermediary approached my client again with the advice "to repeat the trick". He raised his mortgage by € 230,000 and reinvested the money in shares. Soon after that, share prices plummeted. This resulted in an € 80,000 loss for my client. My client had not realised that not only his portfolio would be worth less in the event of dropping prices on the stock exchange, but that more than anything, he would not be able to pay for his monthly outgoings anymore because they were based on compensation by the intended investment returns (leverage).
In consultation with my client, I summoned the financial adviser. Of course, he disputed any form of liability. The intermediary took the position to have informed my client sufficiently, which he claimed was apparent from all sorts of documents. However, the Court of Appeal had a different opinion. The Court decided that the financial consultant had omitted to point out to my client the considerable financial risks in writing, particularly with regard to the so-called leverage. The Court adopted our position that the financial adviser had failed imputably with regard to his statutory duty of care. The financial consultant therefore had to pay my client all the damage suffered by him. The decision was published and can be found here.
The contrite accountant
A company trading in ink cartridges was sent an additional assessment by the employee insurance agency UWV. The reason for this was that Unemployment Insurance Act contributions had been paid incorrectly and too late. Client did not know anything about this and approached her accountant to whom the entire salary administration had been subcontracted. Initially, the accountant, who operates all over the Netherlands, denied any form of liability. Eventually, the other party changed their mind thanks to my solid, threatening correspondence, in which I clearly substantiated her legal position with legal precedents that were not open to any other interpretation. The damage was compensated fully. I published this redress (download here) in the Personeelzaken magazine for small and medium-sized businesses.
The misleading estate agent
My client owned a house together with his wife who was terminally ill. They could not pay the mortgage anymore. One day, my client walked past an estate agent's office. The estate agent accompanied my client to his house, viewed it in five minutes and made an offer, which my client was to accept on the spot. My client did not say much, but went along to the civil-law notary, where he signed the purchase agreement within two hours of visiting the estate agent. Parties agreed that the title would be transferred within three months.
My client regretted it. The estate agent put the house on the market for € 50,000 more than he was paying my client. My client did not dare tell his wife about it, nor did he tell her that he forged her signature on the purchase agreement. After the buying estate agent had demanded fulfilment of the agreed delivery, he engaged me as his lawyer. On behalf of my client and his wife I invoked nullification of the purchase agreement. Firstly, my client's wife did not give the permission required by law. Secondly, my client misjudged the actual market value of his house based on incorrect comments from the purchasing estate agent. Thirdly, the purchasing estate agent abused the situation.
On account of my client's refusal to deliver, the purchasing estate agent summoned my client and his wife to appear before the Court President. He demanded performance of delivery under penalty of a fine. The President refused to allow the claim. He decided that it was insufficiently plausible that the agreement entered into was still in force and doubted whether my client was still obliged to deliver. The President considered the matter too complicated to be dealt with in interlocutory proceedings and referred to the standard procedure. He did emphasise that the agreed stipulated price seemed to be on the low side and that it was suspicious that my client signed the purchase agreement at the civil-law notary's office within a few hours from the visit without adequate time for reflection. The purchasing estate agent subsequently tried again in the standard procedure. During the hearing, the Court appeared to be very critical of the estate agent's role and attitude. When the purchasing estate agent realised he had no chance here either, he withdrew his claims. My client subsequently managed to sell the house on the free market for a realistic purchase price, which was many tens of thousands higher.
All decisions described were pronounced in public and can be viewed at our office.
Swart & De Schepper Attorney
M. (Marco) C.J. Swart, LL M
M. (Martijn) C.J. de Schepper, LL M
