Contracting party and litigant

Published by: Roderick Rischen posted on 1 April 2016 reading time

It often happens that proceedings are conducted in the name of a legal entity other than the one with which a contract has been concluded. This can have far-reaching consequences.

If the other party to the proceedings is not adversely affected or harmed in his defence, rectification can be requested from the court during but also after the proceedings. A prerequisite is that there has been a mistake and that the other party has understood or should have understood who the actual litigant should have been.

In a judgment of the Arnhem-Leeuwarden Court of Appeal of 15 December 2015, it was not clear who the initial plaintiff was. The other party could not have easily known this either.

The plaintiff had a similar name to another company. The claimant's claim was granted, but when he wanted to have the judgment enforced, it turned out that the claimant was a non-existent company. The company with the similar name had meanwhile gone bankrupt.

The trustee was of the opinion that it must have been clear to the defendant that the company with the similar name was the actual contracting party.

The Court of Appeal did not share the trustee's opinion. There was mention of the names of various companies and various incorrect mentions of Chamber of Commerce numbers. According to the Court of Appeal, the situation did not arise here that the defendant should reasonably understand that the plaintiff actually meant the other company.

In short, always be aware of who you are entering into an agreement with!

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