2 million companies in the Netherlands in trouble: how to prepare for it legally?

Contract Law

9 February 2022

2 million companies in the Netherlands in trouble: how to prepare for it legally?

Stelt u zich eens voor: u werkt al jaren met dezelfde zelfstandige. Hij stuurt facturen, factureert btw en heeft een eigen kvk-nummer. Toch krijgt u in 2026 ineens vragen van de Belastingdienst over de aard van uw samenwerking. Hoe heeft het zo ver kunnen komen?

According to research by credit rating agency Graydon, around 2 million companies are in financial difficulty. That is roughly 60% of the total number of businesses in the Netherlands. In 2022, you can therefore expect a lot more problems with your contracting parties and customers. This includes breach of contract, overdue payments and recovery issues. In this blog we give an overview of your rights and discuss preventive measures that can protect you against defaulting counterparties and customers.

How can an entrepreneur defend against defaulting companies?

Below are a number of tips on how an entrepreneur can now properly prepare against defaulting counterparties through good contracts and general terms and conditions.

Good contracts with an applicability clause

First, make sure that all the main elements of the agreement, such as price, subject, description of the assignment or product, are clearly described, and that you settle the rest in your general terms and conditions. That allows your contracts to stay short while your legal position remains well protected. The general terms and conditions must then actually apply to the agreement between you and your counterparty. You do this by literally (in writing) declaring the general terms and conditions applicable with a sentence at the bottom of your quotation or order confirmation. In addition, you must send them along as a PDF attachment to the quotation or order confirmation. This offers the greatest assurance that your payment terms can also actually be validly invoked in the event of a dispute.

General terms and conditions

In the general terms and conditions you arrange standard matters that strengthen your legal position towards your customer in the event of default by your customer or by yourself. Think of:

Delivery terms. Make sure you always stipulate that all delivery terms mentioned in the main agreement are not strict deadlines. This means you are less quickly in default and you have more time before your customer can withdraw the order or agreement.
For example, use a payment term of 14 days. And make sure you can always charge an advance invoice if there is doubt about liquidity.
Collection provisions. Determine what the consequences are if payment is not made (on time). It is advisable to describe the collection procedure in your general terms and conditions, and that the claim can be handed over to a collection agency, what collection costs apply, and that statutory (commercial) interest will start to accrue.
Retention of title. Arrange extra security with a retention-of-title clause by delivering (products) subject to retention of title. You then remain the owner of the product until the buyer has paid all outstanding invoices. In the event of bankruptcy, you can immediately reclaim the delivered products, provided they are still in your customer’s possession and have not already been processed into another product.
Limiting liability. First, it is important that you always include a correct “exoneration clause” in the general terms and conditions. This is the provision with which you can reduce, or even exclude, the statutory risk liability and contractual liability of your company towards your contracting party. If you deal with consumers, you must be careful with this. Such a clause is then often declared invalid. An exoneration clause may not, in substance, be contrary to the law (mandatory law), public order or morality (in which case it is void), and it may not exclude intent or conscious recklessness. There are a few more requirements this clause must meet if it is to hold up in court.
Force majeure. Broaden the definition of force majeure in the general terms and conditions. Breach of contract is not attributable if there is force majeure. If you invoke force majeure, you must prove that force majeure actually exists. Force majeure, in the sense of the law, is not quickly established. The concept of force majeure can therefore be stretched in the general terms and conditions. In that way, late or defective deliveries of components can be attributed to, for example, your supplier and thus to force majeure, if you have determined this in advance. It is advisable to consider what the most common risks are in your business operations that could prevent you from delivering. Then include those risks in the definition of force majeure. If you are, for example, a carrier, you would want to bring theft of or a defect in the truck under force majeure. You must always be able to demonstrate that force majeure is actually present and that it is a situation for which you are not at fault (think of: you do need to properly maintain your trucks). In the case of theft, it is obvious that you are not at fault.
Unforeseen circumstances. An example of an unforeseen circumstance for an entrepreneur is the customer’s lack of access to credit. It may happen that the bank, in the context of new (stricter) rules and standards, turns off the money tap. This can mean that your customer can no longer meet its obligations, yet is not in default and can still dissolve the agreement. Unforeseen circumstances cannot be contracted away. Excluding your customer’s ability to invoke this is void. What you can determine in advance is how the damage caused by the unforeseen circumstance and the non-payment of invoices is borne. You can determine that each party bears 50% of the normally payable invoices. That means your customer still owes half. In case law, this division has often been considered reasonable. This is also called fair loss-sharing.

The above list is not exhaustive. It is advisable to now subject your general terms and conditions to a check and improve them while you still can. You can also send the new terms and conditions to all your existing customers and declare them applicable. Of course, one or two customers may successfully object, but most will not and will simply accept the general terms and conditions. Then you will at least be a lot more at ease and better protected in the event of problems.

Purchasing terms and conditions

Of course, it may also be that purchasing terms and conditions are imposed on you. In that case, it is important that you do not simply accept those terms just to secure the assignment or order. Always check for the following items, which may be hidden in there:

A payment term of 90 days. That is not allowed. The statutory term is by default 30 days, and your customer must have paid within 60 days at the most under the European directive;
A termination right whereby the agreement can be terminated at any moment while you have signed a main agreement for 12 months;
Intellectual property rights being appropriated by the client while you are the maker, the originator, the author, the programmer, etc.;
Liability that is placed entirely and in full on you while you cannot even be insured for it.

For large orders and interests, always submit the purchasing terms and conditions to a lawyer first, and dare to negotiate on the purchasing terms and conditions. This often leads to changes in your favour!

Have you become curious for more information on this and would you like more advice on limiting and excluding business liability, the do’s and don’ts for entrepreneurs? On 17 February 2022, The Legal Company is organising a free lunch session on excluding or limiting business liability. For more information and to register for the free lunch session: click here.

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The corporate lawyers of The Legal Company specialise in employment law, contract law, corporate law and privacy law. Would you like to know more about this or do you need advice? Then contact us via info@thelegalcompany.nl or call 020-345 0152.

Nothing changes as constantly as laws and regulations. Please note that our blogs may no longer reflect current laws and regulations and may therefore be outdated. If you have questions or an issue relating to this blog, or wish to obtain legal assistance, please contact us.

De afgelopen jaren stonden in het teken van de Wet VBAR, het wetsvoorstel dat een einde moest maken aan onduidelijkheid over de zzp’er. Het kabinet heeft delen van dat voorstel inmiddels geschrapt. Op het eerste gezicht is dat goed nieuws: minder regels, minder administratieve last. Maar in de praktijk blijven dezelfde toetsen overeind.

“De inhoud van de samenwerking is leidend, niet wat er op papier staat.”

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Voor uw praktijk betekent dit drie dingen. Een: leg de samenwerking duidelijk vast, met aandacht voor de inhoud. Twee: voorkom dat een zzp’er feitelijk werkt als werknemer. Drie: wees voorbereid op een controle, en weet hoe u de relatie kunt herzien als dat moet.

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