Cancellation of the Agreement
Tags: abuse of circumstances, agreement, bedreiging, bedrog, contract, destruction, dwaling, error, fraud, lack of will, misbruik van omstandigheden, overeenkomst, threat, vernietigen, vernietiging, wilsgebrek.
An agreement is concluded through an offer and the acceptance thereof. Assuming that the parties want the agreement and want to declare it as such. In certain cases, however, an agreement is concluded without this being wanted, at least afterwards it appears that the will to the agreement was actually not there. In these cases, there is a so-called “lack of will”. Such a lack of will is a ground for annulment of the agreement.
The distinguishable “Will-Defects”
The Civil Code (Burgerlijk Wetboek – BW) has four “will defects”, which form a ground for annulment of the agreement:
- Threat;
- Fraud;
- Abuse of Circumstances; and
- Error.
Threat
Threat means that when you are concluding the agreement, you do not do this for the right reasons. You do this because you feel threatened. You conclude the agreement to prevent something worse (removing the threat) and not because you actually want the consequences of the agreement to take effect.
Fraud
Fraud means that you initially think you want something with deception, but afterwards, it turns out that you have been deliberately misrepresented. If you had correctly presented the matter in advance, you would never have concluded the agreement.
Abuse of Circumstances
There is an abuse of the circumstances when someone improperly takes advantage of the circumstances in order for the other person to do something that he or she would not have done without these circumstances. Use is made (read: abuse) of someone’s vulnerability at the time of the conclusion of the agreement.
Required to invoke abuse of the circumstances is that the abuser must have known about the special circumstance and knew or should have known that the other person was vulnerable.
Error
In the event of an error, you think – as in the case of fraud – that you initially want to conclude the agreement, but afterwards, it turns out that you have been misrepresented. The difference with deception is that deception has the requirement of intent and not an error. In case of error, for example, you could think of entering into an agreement to build a website, where it ultimately turns out that the builder of the website does not have the right knowledge to perform the assignment properly.
Destruction
The annulment can take place in writing or by a court order. Destruction has retroactive effect, which means that the destruction works back to the time when the agreement was entered into.
The annulment can take place in writing or by a court order. Destruction has retroactive effect, which means that the destruction works back to the time when the agreement was entered into.
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