NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Emille Buziau, Marit Balkema and Daphne Beunk, Florent B.V.
Amendment In the event of unforeseen circumstances and error, the court can partially or completely set aside or amend an agreement. Annulment (Vernietiging) A party that has concluded an agreement under duress, error, deception or misuse of circum- stances may request the court to (partially) annul such an agreement. Annulment can also be requested in cases of fraudulent acts in respect of creditors (actio pauliana). Annulment has ret- roactive effect. 9.2 Rules Regarding Damages In the Dutch legal system, damages are awarded to compensate the aggrieved party in full. The damages are intended to restore the financial position of the aggrieved party as if the event that caused the damage had not taken place. Dutch law does not provide for punitive dam- ages. In principle, damages are paid in monetary form. At the request of the aggrieved party, the court may rule that compensation must take place in another form (Section 6:130, DCC); eg, by resto- ration (restitutio in integrum) or rectification (Sec- tion 6:167(1) DCC and 6:196(1), DCC). The court may, under certain circumstances, reduce a legal obligation to pay damages (Section 6:109, DCC). Collateral benefits are deducted from the award- ed damages (Section 6:100, DCC). If the liable party has derived profit from an unlawful act or a violation of a contractual obligation, the court may determine the compensation to be paid to the aggrieved party on the basis of its entire or partial profit (Section 6:104, DCC). If a penalty clause applies, the agreed penalty replaces a claim for damages, unless the parties
agreed that both a penalty and damages may be claimed simultaneously. 9.3 Pre-judgment and Post-judgment Interest In principle, interest is owed as per the day after the legal obligation ought to have been fulfilled until the obligation has been fulfilled. The rate of statutory interest for both commercial and non- commercial transactions is determined by the Minister of Justice. The parties may agree on a different rate of interest. 9.4 Enforcement Mechanisms of a Domestic Judgment Final judgments (with the force of res judicata) or judgments with immediate effect may be enforced after being served on the other party by the bailiff. If a pre-judgment attachment was imposed against the obligor to secure compli- ance, this becomes an attachment in execution. If payment is not forthcoming, recovery may take place on the assets of the debtor (includ- ing assets of the debtor held by third parties). Specific rules may apply for other kinds of obli- gations. The entitled party can be authorised by the court to undertake certain activities itself, at the expense of the opposite party. In other cases, the court can decide that the judgment will supersede the juridical act that ought to have been performed by the party against whom the order was given. 9.5 Enforcement of a Judgment From a Foreign Country Recognition and Enforcement of Judgments From Non-EU Member States Pursuant to Section 431(1) of the DCCP, deci- sions from a foreign country cannot be enforced in the Netherlands, unless a law or convention determines otherwise.
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