The Bottom Line
- Conduct can create a contract. A formal signature isn’t always required to form a binding agreement in the Netherlands. Consistently acting like a deal is in place—such as cooperating with due diligence or instructing a notary—can be legally interpreted as acceptance.
- Silence can be costly. If you receive a draft agreement you disagree with, failing to object clearly and promptly is a major risk. Continuing to cooperate can lead a court to conclude you accepted the terms, even those you dislike.
- Objective actions trump subjective intent. Dutch courts focus on what parties could reasonably understand from each other’s behavior, not just their private intentions. This principle of justifiable reliance protects parties who act in good faith based on the consistent signals they receive during negotiations.
The Details
This recent case from the Hague Court of Appeal serves as a critical reminder for executives and their legal counsel: a deal can become binding long before any ink hits the final page. The dispute involved the sale of a commercial property plot for €200,000. While a notary had drafted agreements and the buyer had transferred the full purchase price, the seller refused to sign, later arguing that no definitive agreement had ever been reached. She specifically contested a right of first refusal on her adjacent private residence, which was included in the draft contract.
The Hague Court of Appeal, upholding the lower court’s decision, found that a valid sales agreement had indeed been formed. The court’s reasoning was not based on any single statement, but on the seller’s entire pattern of conduct over an extended period. The judges pointed to several key actions that demonstrated her consent: she actively participated in meetings with the notary to discuss the terms of the sale, she signed official documents to split her property parcel (a crucial step required for the sale to proceed), and she allowed a formal valuation of her home, which was directly linked to the disputed right of first refusal clause. These, the court concluded, are not the actions of someone who has rejected a deal.
This ruling is a powerful illustration of the Dutch civil law principle of justifiable reliance. The court determined that even if the seller secretly harbored doubts or never truly intended to finalize the sale, her cooperative and consistent actions created a legitimate and reasonable expectation for the buyer that an agreement was in place. Her later claims of being pressured were dismissed as unsubstantiated and inconsistent with her earlier behavior. The decision underscores that in Dutch contract law, the objective signals you send to your counterparty can legally outweigh your unstated, subjective intent.
Source
Gerechtshof Den Haag
