BREACH OF CONTRACT IN THE DUTCH ANTILLES (V)
Restrictions on termination
With regards to damages, the aim thereof is generally to restore the creditor to the position he would have been in had the contract been fulfilled. In case of breach of contract, the damages will usually be assessed by considering the situation the creditor would be in if restored to the position he would have been in had the contract been performed properly, by looking at costs incurred, wasted expenditure, any loss of profits etc.
The Netherlands Antilles Civil Code will generally allow an injured party to claim damages based on the expectations/positive interest, i.e. the position …
Read the rest »
BREACH OF CONTRACT IN THE DUTCH ANTILLES (IV)
Non-performance as a response to non-performance
Whenever a party to a contract is faced with non–performance by the other party, the party’s first reaction might well be to suspend its part of the contract. In the legal sense of the word, suspending or withholding performance may be described as both a defense and a self help remedy, which a party can use when the other party does not perform its obligations under the contract. By its very nature it is a temporary remedy. As long as one party is in breach and the other is withholding its performance, the contract …
Read the rest »
BREACH OF CONTRACT IN THE DUTCH ANTILLES (III)
Different cases of breach of contract
Any question of breach starts with an inquiry into the type of obligation at hand. It is necessary to know more about the type of obligation at hand in order to determine whether a party has failed to perform that obligation. When determining whether a party has failed to perform, it should be remembered that an obligation may carry with it a degree of ‘strictness’, ranging from a firm commitment, e.g. commitment to provide annual audited financial statements, to an obligation to use reasonable care and skill to achieve certain goals.
The Netherlands Antilles …
Read the rest »
BREACH OF CONTRACT IN THE DUTCH ANTILLES (II)
Entitlement to specific performance
Under the Netherlands Antilles Civil Code the demand for specific performance is not a remedy for breach of contract in a strictly legal technical sense. In this system the entitlement to specific performance is a consequence of the duty to perform a (contractual) obligation. The contract itself, and not the breach of it, entitles the creditor to specific performance. If non–performance amounts to a breach of contract, i.e. meaning that a party does not perform though it should perform, the other party may be entitled to damages or termination of the contract.
However, in some cases, …
Read the rest »
BREACH OF CONTRACT IN THE DUTCH ANTILLES (I)
Failure to properly perform
Under the Netherlands Antilles Civil Code (CC) breach of contract is defined as a failure to properly perform, perform on time, or to perform at all, which failure is attributable to one of the parties If a debtor breaches his obligations there are various courses of action available to the creditor. Firstly he may claim specific performance, secondly he may claim damages, whether or not in addition to specific performance, and thirdly, he may demand dissolution of the contract, with or without damages.
The CC distinguishes between excused and non–excused non–performance. According to Article 6:74 CC …
Read the rest »