Written By: Reinier W.L. Russell, Esq.
Russell Advocaten B.V.
Amsterdam, Netherlands
Recently, it has been legally permitted in the Netherlands to terminate contracts by e-mail in certain circ*mstances. Under what conditions is this allowed? Is it advisable to terminate contracts by e-mail?
Many contracts include that the agreement can only be terminated in writing. For some kinds of contracts this is even specified in legislation, e.g. with regard to purchasing real estate. Until recently, it was not permitted to deal with this kind of contracts by e-mail. However, with respect to this issue the Dutch Civil Code has been amended: under certain conditions, an e-mail may be considered as a “document”. If the contract does not require to be terminated by registered mail but only requires a termination in writing, sending an e-mail will be sufficient.
There is a major disadvantage attached to this convenience which requires a certain degree of caution. Sending an e-mail is subject to the so-called ‘theory of receipt’, which means that a notification which is addressed to a certain person will only be effective in the event this person has received it. Just sending it will not be sufficient. A notification that wasn’t received by the addressee will not be effective. The burden of proof is on the party who invokes the consequences of the notification. The party who terminates a contract by e-mail will have to proof that the e-mail was received by the addressee. This is only possible if the addressee the e-mail was sent to will react to the e-mail, or if a read/receipt message is required.
A read / receipt message can not necessarily be relied on. Due to the variety of e-mail systems, the sender of the e–mail may receive a read / receipt message for an unread message or no read / receipt message at all, while the addressee has read the e-mail message. If the sender cannot prove that the e-mail was received by the addressee, the addressee will be able to deny the receipt of the e-mail, which can have the consequence that the contract was not terminated duly in time.
Action
If you would like to terminate a contract you concluded, it’s advisable to check the General Terms & Conditions regarding the termination of the contract. If it has to be terminated in writing, it’s advisable to do so by registered letter. If you still opt for termination by e-mail, make sure you will be able to prove that it was received by the addressee.
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