An agreement is established when one party makes an offer and the other party accepts that offer. This can be done verbally or in writing. Both the offer and the acceptance consist of an intention and a declaration. The intention means that you have the desire to enter into a certain agreement. The declaration means that you have made this intention known to the other party. In some cases, the intention is formed in a defective way. This is called a ‘defect of will’. A defect of will can have consequences for the agreement.

Abuse of circumstances: necessity knows no law?

Sometimes someone enters into an agreement in a difficult situation, while that person would not have entered into the agreement under normal circumstances. For example, someone is ill, confused, or in an emergency situation. If the other party knew or should have known this, but still encouraged the conclusion of the agreement, there is a defect of will called ‘abuse of circumstances’.

An agreement that has been concluded with this defect of will is voidable. This means that the agreement is in principle valid, but that action can be taken to have the agreement declared invalid. This action may, for example, involve sending a letter to your counterparty ?. However, sometimes there is disagreement about whether there was indeed abuse of circumstances. In that case, the matter can also be brought before a court, so that the judge can decide whether the agreement should be annulled. Once the agreement is annulled, the situation must be reversed to how it was before the agreement was concluded. If a product has been delivered, it must be returned. If payment has already been made for this product, that payment must be refunded ?.

Threat: do it, or else…

In the case of the defect of will known as ‘threat’, someone is more or less forced to enter into an agreement because, for example, there is a threat of death, kidnapping, or arson. The threat must be such that a reasonable person could be influenced by it. A mere threat that someone will sing badly if you don’t do what they say does not count. As with threat, the agreement is voidable. Annulment works in the same way as described above.

Fraud: clever marketing trick or bad move?

Fraud occurs when someone is induced to enter into an agreement because the seller has deliberately concealed certain facts or knowingly provided false information. Intent is therefore a key factor — unintentionally providing incorrect information does not fall under this defect of will. In addition, general promotional statements such as ‘the best’ or ‘the fastest’ are not considered fraud under the law. Fraud also results in a voidable agreement ?.

Mistake: but I just wanted good coffee…

The last defect of will is ‘mistake’. The law distinguishes between two types of mistake: improper mistake and proper mistake.

In the case of an improper mistake, the intention and the declaration do not correspond. For example, imagine a coffee machine being delivered to your office five minutes before closing time. The technician asks for your signature, and in your haste, you believe you’re signing for receipt of the machine. In reality, however, you are signing a multi-year maintenance contract. A claim of improper mistake only succeeds if your counterparty, given the circumstances, could not reasonably rely on your declaration. In that case, no agreement has been concluded at all ?.

In the case of a proper mistake, the intention and the declaration do correspond, but the intention was formed based on an incorrect understanding of the facts. Certain information may not have been provided, or incorrect information was given. Had the correct facts been known, the agreement would not have been concluded ?. To stick with the same example: you know you are signing the maintenance contract, and you intend to. However, the seller has concealed the fact that the maintenance will be carried out by a trainee, meaning that some mistakes may occur. In the case of a proper mistake, the agreement is concluded but is again voidable ?.

Do you doubt whether you “accidentally agreed” to something that doesn’t feel quite right? Or would you rather know how to prevent your agreement from being declared invalid? Feel free to contact us and be well-prepared.