Dutch Civil Code

Book 7 Particular agreements

Title 7.7 Service provision agreement

Section 7.7.1 Provision of services in general

Article 7:400 Definition of 'service provision agreement'
- 1. A service provision agreement is the agreement under which one of the parties ('the service provider') has engaged himself towards the other party (' the client') to perform work on another basis than an employment agreement, which work consists of something else than the making of a tangible construction, the safekeeping of property, the publication of a work or the transportation of persons or goods.
- 2. The provisions of Articles 7:401 up to and including 7:412 apply to each type of service provision agreement, unless something else results from law, the content or nature of the agreement, another juridical act or usage (common practice) and without prejudice to Article 7:413.

Article 7:401 Obligation to observe the care of a prudent service provider
During his work the service provider must observe the care of a prudent service provider.

Article 7:402 Obligation to follow the directions of the client
- 1. The service provider must follow the directions which the client has given him with regard to the performance of the service, as far as these directions are responsible and given in time.
- 2. When the service provider is not prepared, on reasonable grounds, to perform the service in accordance with the directions given by the client, but the client nevertheless insist that he follows these directions, then the service provider may terminate the service provision agreement if he has serious reasons for doing so.

Article 7:403 Obligation to inform the client; rendering account
- 1. The service provider must keep the client informed about the work he has performed in compliance with the service provision agreement and inform him immediately of the completion of the service if the client is not yet aware thereof.
- 2. The service provider renders account to the client of the way he has performed and completed the service. If the service provider has received money on behalf of the client or made payments at his expense in the course of his work, then he renders account thereof as well.

Article 7:404 The client intends that the service is to be performed by a specific person
If the client has entered into the service provision agreement with the intention that a specific person, employed at or cooperating with the service provider, will perform the work necessary to complete the service, then this person has to perform this work himself, except as far as the agreement implies that he may order other persons to actually carry out the work under his supervision and responsibility; in any event the service provider stays fully responsible (liable) himself towards the client.

Article 7:405 Remuneration of the service provider
- 1. If the service provider has concluded the service provision agreement in the course of his professional practice or business, then the client is obliged to pay him a remuneration (fee).
- 2. If a remuneration (fee) is due, but its amount has not been determined by parties, then the service provider may charge the usual remuneration (fee), to be calculated in the common way or, if such a remuneration (fee) is not available, a reasonable remuneration (fee).

Article 7:406 Expense allowance and compensation for damages
- 1. The client must compensate the service provider for the expenditures he has made in connection with the performed service, as far as these are not already included in the chargeable remuneration (fee).
- 2. The client must compensate the damage which the service provider has suffered due to the realisation of an exceptional potential danger that is associated with the provided service, as far as the realisation of this danger cannot be attributed to the service provider. Where the service provider has acted in the course of his professional practice or business, the previous sentence shall only apply if the potential danger exceeded the risks which normally go along with conducting this kind of profession or business. If the service is performed for a remuneration (fee), but not in the course of the professional practice or business of the service provider, then the first sentence shall only apply if the potential danger has not been taken into account in determining the amount of the remuneration (fee).

Article 7:407 Two or more clients or two or more service providers
- 1. If two or more clients have jointly entered into a service provision agreement with one service provider, then each of them is joint and several liable towards the service provider for the obligations from the agreement.
- 2. If two or more service providers have jointly engaged themselves under a service provision agreement towards one client to perform a service, then each of them is towards the client joint and several liable for a failure in the performance of any obligation from this agreement, unless this failure is not attributable to him.

Article 7:408 Termination of the service provision agreement
- 1. The client may at any time terminate the service provision agreement.
- 2. A service provider who entered into the service provision agreement in the course of his professional practice or business, may only terminate the agreement if it has been concluded for an indefinite term and it does not end at the completion of the service, unless there are profound reasons for its termination.
- 3. Where the client is a natural person who did not enter into the service provision agreement in the course of his professional practice or business, he cannot be held liable for damages on the ground that he has terminated the agreement, however without prejudice to Article 7:406.

Article 7:409 Death of a particularly assigned service provider
- 1. If the client has assigned the service commitment with the intention that a particular person will perform the service, then the service provision agreement ends at the death of this person.
- 2. In that case the heirs of the deceased person, provided that they have knowledge of both, the death of this person and of the service commitment that was assigned to him, have the duty to do all what in view of the circumstances is required in the best interest of the client. A corresponding duty is incumbent on those who are employed by the service provider or who cooperate with him in the course of a professional practice or business.

Article 7:410 Death of the client
- 1. The death of the client does not end the service provision agreement, unless its ending results from that agreement, and then only from the moment on which the service provider has become aware of the client's death.
- 2. Where the service provision agreements ends upon the death of the client, the service provider nevertheless has the obligation to do all what in view of the circumstances is required in the best interest of the client or his heirs.

Article 7:411 Obligation to pay a remuneration (fee) when the service provision agreement ends prematurely
- 1. If the service provision agreement ends before the service has been completed or before the period for which the service commitment was assigned has expired, and the obligation to pay a remuneration (fee) depends on the completion of the service or on the expiry of that period, then the service provider is entitled to a remuneration (fee) which has to be determined on the basis of reason. In determining the amount of the remuneration (fee), the following points, among others, have to be taken into account: the work already performed by the service provider, the benefit that the client has gained from this work and the ground which has lead to the end of the agreement.
- 2. In the situation meant in paragraph 1, the service provider is only entitled to the full remuneration (fee) if the end of the service provision agreement is attributable to the client and the payment of a full remuneration (fee) is reasonable in view of all circumstances of the case. The determined amount of the remuneration (fee) shall be reduced with the savings and cost reductions that the service provider has enjoyed as a result of the premature ending of the service provision agreement.

Article 7:412 Prescription period for the right to claim the handing over of documents
A right of action against the service provider to claim the handing over of documents which he has collected with regard to the provision of the service, becomes prescribed on the expiry of five years from the day following the one on which the involvement of the service provider has ended.

Article 7:413 Mandatory law
- 1. It is not possible to derogate from Article 7:408, paragraph 3.
- 2. It is not possible to derogate from Articles 7:408, paragraph 1, and 7:411 if this is done to the disadvantage of a client as meant in Article 7:408, paragraph 3.
- 3. It is only possible to derogate from Article 7:412 to the extent that it is possible to derogate from the statutory provisions for the prescription of rights of action as regulated in Title 3.11 of the Civil Code.

Section 7.7.2 Mandate agreement

Article 7:414 Definition of 'mandate agreement'
- 1. A mandate agreement is a service provision agreement under which one of the parties, ('the mandatory') has engaged himself towards the other party ('the mandator') to perform one or more juridical acts for account of the latter (the mandator).
- 2. The agreement may engage the mandatory to perform juridical acts in his own name; it may also engage him to perform juridical acts in the name of the mandator.

Article 7:415 Mandate to two or more mandatories
If two or more mandatories have engaged themselves under the same mandate agreement, then each of them is entitled to act independently.

Article 7:416 Mandatory in the position of counterparty of the mandator
- 1. With regard to the to be performed juridical act the mandatory may only operate as counterparty of the mandator if the content of that juridical act is so precisely determined that any conflict of interest between the mandatory and the mandator is an impossibility.
- 2. A mandatory who may only act in his own name, may nevertheless operate as counterparty of the mandator if the content of the to be performed juridical act is so precisely determined that any conflict of interest between the mandatory and the mandator is an impossibility.
- 3. If the mandator is a person as meant in Article 7:408, paragraph 3 [consumer], then the mandatory must have the mandator's written permission to perform a juridical act under which the mandatory will operate as counterparty of the mandator, under penalty of voidability of that juridical act.
- 4. The mandatory who has operated in conformity with the previous paragraphs as counterparty of the mandator, remains entitled to his remuneration (fee).

Article 7:417 One mandatory serving two or more mandators
- 1. A mandatory who performs a juridical act in the performance of the mandate agreement, may at the same time only operate as the mandatory of the counterparty to that juridical act if this juridical act is so precisely determined that any conflict of interest between the two involved mandators is an impossibility.
- 2. If the mandator is a person as meant in Article 7:408, paragraph 3, then his written permission is required for the validity of the juridical act in the performance of which the mandatory operated as well as mandatory of the counterparty.
- 3. The mandatory is not entitled to a remuneration (fee) towards the mandator with regard to whom he has acted in violation of the previous paragraphs, without prejudice to his liability for damage suffered by the mandator as a result of this violation. It is not possible to derogate to the disadvantage of the mandator from this provision.
- 4. If one of the involved mandators is a person as meant in Article 7:408, paragraph 3 [consumer], and the to be performed juridical act necessarily implies the sale or leasing out of an immovable thing, a part of such thing or a right that is related to such a thing, then the mandatory is not entitled to a remuneration (fee) towards the mandator who has engaged himself as buyer or lessee. It is not possible to derogate to the disadvantage of such a buyer or lessee from this provision, unless the to be performed juridical act necessarily implies the lease of a residential space in a part of a separate dwelling.

Article 7:418 Other situations with a confusion of interests
- 1. If the mandatory, in a situation falling outside the scope of Articles 7:416 and 7:417, has a direct or indirect interest in the realisation of the to be performed juridical act, then he must inform the mandator of this, unless the content of the to be performed juridical act is so precisely determined that any conflict of interest between the mandatory and the mandator is an impossibility.
- 2. The mandatory is not entitled to a remuneration (fee) towards the mandator with regard to whom he has acted in violation of paragraph 1, without prejudice to his liability for the damage suffered by the mandator as a result of this violation. It is not possible to derogate to the disadvantage of the mandator from this provision.

Article 7:419 Mandator suffers damage because a third party fails to comply towards the mandatory
If a mandatory has entered in his own name into an agreement with a third person, who subsequently fails to comply with his obligations from that agreement, then this third person is towards the mandatory also liable for the damage which the mandator indirectly has suffered from his non-performance, although not further than within the limits to which he, apart from this provisions, is bound by law with regard to his obligations to repair damages.

Article 7:420 Relationship between the mandator and a third person: powers and rights of the mandator
- 1. If a mandatory, who has entered in his own name into an agreement with a third person, does not comply with his obligations towards the mandator or if he gets bankrupt or becomes subjected to the Debt Repayment Scheme for Natural Persons, then the mandator may, by a written declaration addressed to both, the mandatory and this third person, take over the transferable rights which the mandatory has towards this third party, except as far as these rights within the mutual relationship between the mandator and mandatory belong to the mandatory.
- 2. The mandator has the same powers if the third person does not comply with his obligations towards the mandatory, unless the mandatory satisfies the mandator as if the third person would have performed his obligations.
- 3. In the situations meant in the present Article, the mandatory has the obligation to inform the mandator, upon his request, about the name of the third person.

Article 7:421 Relationship between the mandator and a third person: powers and rights of the third person
- 1. If a mandatory, who has entered in his own name into an agreement with a third person, does not comply with his obligation towards that third person or if he gets bankrupt or becomes subjected to the Debt Repayment Scheme for Natural Persons, then this third person may, by a written declaration addressed to both, the mandatory and the mandator, exercise his rights from this agreement against the mandator, as far as the mandator, at the moment on which the declaration was made, is correspondingly engaged towards the mandatory.
- 2. In the situations meant in the present Article, the mandatory has the obligation to inform the third person, upon his request, about the name of the mandator.


Article 7:422 Premature ending of the mandate agreement
- 1. A mandate agreement not only ends by termination in accordance with Article 7:408, but also:
a. when the mandator dies, is placed under adult guardianship, goes bankrupt or becomes subjected to the Debt Repayment Scheme for Natural Persons, on the understanding that when the mandator dies or is placed under adult guardianship, the mandate agreement shall not end prior to the moment on which the mandatory has taken knowledge of this fact.
b. when the mandatory dies, is placed under adult guardianship, goes bankrupt or becomes subjected to the Debt Repayment Scheme for Natural Persons.
- 2. It is not possible to derogate from Article 7:408, paragraph 1, as far as it applies to a mandate agreement, nor from paragraph 1, under point (a) of the present Article. To the extent that the mandate agreement necessarily implies the completion of a juridical act in the interest of the mandatory or a third person, however, it is possible to stipulate that it cannot be terminated by the mandator or that it does not end upon his death or when he is placed under adult guardianship. Article 3:74, paragraph 1, second sentence, 2 and 4 of the Civil Code apply accordingly.
- 3. Where the mandate agreement ends because the mandator dies or is placed under adult guardianship, the mandatory is nevertheless obliged to do all what in view of the circumstances is required in the best interest of the mandator or his heirs.
- 4. If the mandate agreement ends because of the death of the mandatory, then his heirs have the duty, provided that they have knowledge of both, the death of the mandatory and of the mandate assigned to him, to do all what in view of the circumstances is required in the best interest of the mandator. A corresponding duty is incumbent on those who are employed by the mandatory or who cooperate with him in the course of a professional practice or business.

Article 7:423 Stipulation that the mandator himself is no longer entitled to perform the juridical act
- 1. If it has been stipulated that a right of the mandator will be exercised by the mandatory in his own name and to the exclusion of the mandator, then the mandator misses the right to exercise this right himself for the duration of the mandate agreement, even against third persons. The exclusion cannot be invoked against third parties who were not aware nor ought to have been aware of it.
- 2. If the mandatory, who has stipulated the exclusion, is a legal person who in pursuance of his articles of association has the objective to protect the joint interests of several mandators by exercising the rights belonging to them, then it is possible to stipulate, in derogation from Article 7:422, paragraph 2, that the mandate agreement will not end on a term of notice for termination by the mandator of a period of less than one year, nor when the mandator dies, is placed under adult guardianship, goes bankrupt or becomes subjected to the Debt Repayment Scheme for Natural Persons. This contractual provision cannot prevent that the agreement may be terminated on a term of notice of at least one month by the heirs of the mandator or, if the mandator is bankrupt or placed under adult guardianship, by his liquidator or legal representative. When the estate of the deceased mandator is apportioned under Article 4:13 of the Civil Code [intestate succession], the right of his heirs, meant in the previous sentence, belong to the deceased's spouse or registered partner.

Article 7:424 Section 7.7.2 applies accordingly to other similar agreements
- 1. Articles 7:415 up to and including 7:423 apply accordingly to agreements other than mandate agreements if under such another agreement one of the parties is engaged or entitled to perform a juridical act for account of the other party, but only insofar the purpose of the involved statutory provision in connection with the nature of this other agreement does not oppose to such an application.
- 2. Paragraph 1 does not apply to carriage or transport agreements for the transportation of persons or goods.

Section 7.7.3 Intermediary agreement

Article 7:425 Definition of 'intermediary agreement'
An intermediary agreement is a service provision agreement under which one of the parties, ('the intermediary') has engaged himself towards the other party ('the client') to work on payment of a fee (remuneration) as an intermediary in arranging one or more contracts to be concluded by his client with third persons.

Article 7:426 Fee (remuneration)
- 1. The intermediary is entitled to a fee (remuneration) as soon as, through his intermediation, a contract has been concluded between his client and a third person.
- 2. If the right to a fee (Remuneration) has been made dependant on the implementation (performance) of the arranged contract between the client and the third person and this contract is not implemented (performed), then the client still has to pay the fee (remuneration) to the intermediary, unless the non-implementation (non-performance) is not attributable to the client.

Article 7:427 Confusion of interests
Articles 7:417 and 7:418 apply accordingly to agreements under which one of the parties is engaged or entitled towards the other party to work as an intermediary as referred to in Article 7:425, on the understanding that an intermediary who operates also as an intermediary of the counterparty of his client is equated with an intermediary who himself operates as the counterparty of his client or his heirs.

Section 7.7.4 Commercial agency agreement

Article 7:428 Definition of 'commercial agency agreement'
- 1. A commercial agency agreement is an agreement in which one of the parties ('the principal') instructs the other party ('the agent'), who has engaged himself to this instruction on payment of a commission (remuneration), to provide intermediary services in arranging contracts to be concluded by the principal with third persons and, where appropriate, to conclude such contracts in the name and for account of the principal, without being his subordinate; the commercial agency agreement may be effective between the principal and the agent for a fixed term or for an indefinite term.
- 2. The statutory provisions of the present Section (Section 7.7.4) do not apply to a commercial agency agreement to which the Financial Supervision Act*) applies.
- 3. Each of the parties to a commercial agency agreement is, upon the request of the other party, obliged to cooperate in drawing up a signed written contract of their agreement reflecting its content at that moment.

*) The Financial Supervision Act is applicable to agreements under which intermediary services are provided related to:
a. all activities carried out in the course of a profession or business focused on concluding as a middleman a contract regarding a financial product other than a financial instrument, credit or insurance between a consumer and an offeror;
b. all activities carried out in the course of a profession or business focused on concluding as a middleman a contract regarding credit between a consumer and an offeror or on assisting in the administration and performance of such a contract; or
c. all activities carried out in the course of a profession or business focused on concluding as a middleman an insurance between a client and an insurer or on assisting in the administration and performance of such an insurance;

Article 7:429 Liability of the agent
- 1. The agent can only make himself liable towards a third person for obligations, arising from the agreement arranged or concluded for or on behalf of the principal, by means of a written declaration of this content.
- 2. Unless agreed otherwise in writing, the agent who operates under a 'del credere clause'*) shall only be liable for the solvency of the third person.
- 3. The agent meant in the previous paragraph cannot make himself liable for a higher amount than the agreed commission, unless the del credere clause is related to a specific contract or to contracts which the agent has concluded in the name of the principle.
- 4. If there is an apparent disproportion between the risk which the agent has imposed upon himself and the stipulated commission, then the court may cut down the amount for which the agent is liable, as far as this amount exceeds the commission. The court takes into account all circumstances, in particular the way in which the agent has looked after the interests of the principal.

*) A 'del credere clause' is a stipulation in the commercial agency agreement in which the agent guarantees towards the principal that third persons, who will enter into contracts with the principal that have been arranged by the agent or with whom the agent will enter into contracts in the name and on behalf of the principal, shall duly perform those contracts ('del credere agency').

Article 7:430 Caring duty of the principal
- 1. The principal must do everything what, in the circumstances, is required from his side to enable the agent to perform his work.
- 2. The principal must provide the agent with the necessary documentation about the goods and services with regard to which the agent performs intermediary services and provide him with all information that is required for the performance of the commercial agency agreement.
- 3. The principal has the duty to notify the agent immediately if he foresees that contracts with third parties will or may be concluded to a far less degree than the agent was allowed to expect.
- 4. The principal must inform the agent within a reasonable period of his acceptance or rejection or of the non-implementation (non-performance) of a contract which has been put forward by the agent.

Article 7:431 Commission (fee)
- 1. The agent is entitled to a commission for all the contracts concluded with third persons throughout the duration of the commercial agency agreement:
a. if the contract has been concluded as a result of his intermediation;
b. if the contract has been concluded with someone whom he already had put forward at an earlier stage for the conclusion of a similar contract;
c. if the contract has been concluded with someone who belongs to a group of customers (clientele) assigned to him or who is seated in the territory that is assigned to him, unless it has explicitly been agreed that he has not the exclusive right with respect to that group of customers or territory.
- 2. The agent is entitled to a commission for the preparation and arrangement of contracts which the principal has concluded with third persons after the commercial agency agreement has ended:
a. if the conclusion of such a contract is for the most part the result of activities which the agent has performed during the time that the commercial agency agreement still was effective, provided that the contract has been concluded within a reasonable time after the end of the commercial agency agreement, or;
b. if the agent or principal has received, prior to the end of the commercial agency agreement, an order of the third person which is in accordance with the requirements specified in paragraph 1.
- 3. The agent is not entitled to a commission if this commission is indebted to his predecessor by virtue of paragraph 2, unless in the circumstances it is fair that the commission is divided between them both.

Article 7:432 Moment on which a right to commission (a remuneration) arises
- 1. If the involvement of the agent has been limited to the provision of intermediary services which enable the principal to conclude contracts with third persons himself, then the order of the third person, as offered by the agent to his principal, is presumed to have been accepted by the principal, as far as it concerns the right to commission as referred to in Article 7:426, at the moment that the principal has received it, unless the principal has notified the agent within a reasonable period meant in Article 7:430, paragraph 4, that he rejects the order or accepts it under reservation. Where the commercial agency agreement does not indicate which period is reasonable for this purpose, this period shall be one month from the moment on which the order has been offered to the principal.
- 2. A stipulation making the right to commission dependent on the implementation (performance) of the contract between the principal and a third person, must be made explicitly.
- 3. Where a stipulation as meant in paragraph 2 has been made, the right to commission arises no later than the moment on which the third person has performed his part of the contract or would have done so if the principal had performed his part of the contract in time.

Article 7:433 Overview of the calculated commission
- 1. After each month the principal must hand over to the agent a written overview of the commission indebted over that month, including the data upon which his calculation is based; this overview must be handed over before the end of the next month. Parties may agree in writing that the overview is handed over every two or three months.
- 2. The agent has the right to inspect the necessary evidence in possession of the principal, but he is not entitled to take it with him. He may, at is own expense, call in the assistance of an expert who has been accepted as such by the principal or, if rejected, who has been appointed, upon the request of the agent, by the provisional relief judge of the District Court.
- 3. Parties may agree in writing that the evidence is inspected by a third party; if this third party does not perform his work, then the provisional relief judge of the District Court shall appoint a substitute.
- 4. When the principal presents the evidence, the agent and the persons mentioned in the previous paragraphs are bound by a duty of confidentiality. The persons mentioned in the previous paragraphs, however, are not compelled to keep their confidentiality in their relation to the agent as far as it concerns the data meant in paragraph 1.

Article 434 Moment on which the commission (remuneration) becomes due and demandable
The commission will, at the latest, be due and demandable at the moment on which the written overview, meant in Article 7:433, must be handed over to the agent.

Article 7:435 No commission, but another remuneration instead
- 1. The agent is entitled to a remuneration if he is prepared to comply with his obligations derived from the commercial agency agreement or if he already has complied with these obligations, but the principal has not made any use of the agent's services or he has made less use of these services than the agent normally was allowed to expect, unless this conduct of the principal is a result of circumstances for which he reasonably is not accountable.
- 2. The amount of the commission earned in the preceding time and all other to be considered factors, like the costs which the agent has saved because he did not have to work, shall be taken into account in determining the remuneration meant in the previous paragraph.

Article 7:436 Continuation of the commercial agency agreement after the expiry of a fixed term
A commercial agency agreement which is continued by both parties after the expiry of the fixed period for which it was entered into, binds parties for an indefinite term under the same conditions.

Article 7:437 Termination of the commercial agency agreement
- 1. If the commercial agency agreement has been entered into for an indefinite term of for a fixed term under the right of premature termination, then each of the parties is entitled to terminate the agreement with due observance of the agreed term of notice. When the commercial agency agreement does not provide an agreed term of notice, the term of notice will be four months, extended by one month when the agreement has been effective for three years and by two months after six years.
- 2. The term of notice cannot be shorter than one month in the first year of the agreement, two months in the second year and three months in the next years. If parties agree upon longer periods, then the term of notice which the principal has to observe may not be shorter than the term of notice that is to be observed by the agent.
- 3. The commercial agency agreement must be terminated at an effective termination date at the end of a calendar month.

Article 7:438 Death of the agent or principal
- 1. The commercial agency agreement ends when the agent dies.
- 2. At the death of the principal, both, his heirs and the agent, are entitled to end the commercial agency agreement with due observance of a term of notice of four months, provided that the notice of termination is given within a period of nine months after the principal has died. When the estate of the deceased principal is apportioned pursuant to Article 4:13 of the Civil Code [intestate succession], the right of the heirs meant in the previous sentence belongs to the deceased's spouse or registered partner.

Article 7:439 Unlawful termination (compelling reason)
- 1. The party who terminates the commercial agency agreement without respect for its duration or without observing the statutory or agreed term of notice and without the consent of the opposite party to do so, is liable for damages, unless the agreement was terminated for compelling reasons of which the opposite party has been notified immediately.
- 2. Compelling reasons are circumstances of such a nature that the party who has terminated the agreement reasonably could not be expected to continue it, not even temporarily.
- 3. If the agreement has been terminated for compelling reasons due to circumstances for which the opposite party can be blamed, then the opposite party shall be liable for damages.
- 4. A stipulation which leaves the decision whether a compelling reason exists to one of the parties, is null and void.

Article 7:440 Dissolution of the commercial agency agreement
- 1. Each of the parties may request the Subdistrict Court to dissolve the commercial agency agreement on the basis of:
a. circumstances which produce a compelling reason in the sense of Article 7:439, paragraph 2;
b. a change in circumstances of such a nature that fairness requires that the agreement has to end without delay or on a short time.
- 2. When the Subdistrict Court dissolves the agreement on a circumstance producing a compelling reason as meant in paragraph 1, under point (a), and the defendant can be blamed for this circumstance, then he is liable for damages.
- 3. When the Subdistrict Court dissolves the agreement on the basis of what is specified in paragraph 1, under point (b), then it may grant a compensation to one of the parties. It may order that this compensation has to be paid in instalments.
- 4. Article 7:685, paragraph 5 up to and including paragraph 11, of the Civil Code [dissolution of an employment agreement] applies accordingly.

Article 7:441 Compensation for damages
- 1. The party who is liable pursuant to Article 7:439 or 7:440, paragraph 2, has to pay to the opposite party an amount equal to the commission and possible remuneration for the period that the agreement would have been continued if it would have been ended in a regular manner. The commission earned in the preceding time and all other to be considered factors shall be taken into account in determining this amount
- 2. The court may reduce this amount if it considers it to be too high in view of the circumstances.
- 3. Instead of the compensation meant in the preceding paragraphs, the injured party may also claim full compensation of the real damage, provided he proves its extent.

Article 7:442 Goodwill compensation
- 1. Irrespective of the right to claim a compensation for damages, the agent is entitled to a goodwill compensation at the end of the commercial agency agreement, as far as:
a. he has introduced new customers to the principal or he has considerably extended the number or value of the contracts with existing customers and, in both events, the contracts with these customers still produce considerable advantages for the principal, and;
b. the payment of this goodwill compensation is fair, in view of all circumstances, in particular of the lost commission from the contracts with these customers.
- 2. The amount of the goodwill compensation cannot exceed the commission and possible remuneration of one year, calculated to the average over the last five years of the commercial agency agreement or, if the agreement has lasted shorter, to the average of the whole duration of it.
- 3. The right to goodwill compensation ceases to exist if the agent has not notified the principal within one year after the end of the commercial agency agreement that he claims this compensation.
- 4. The goodwill compensation is not due (indebted) if the agreement has been ended:
a. by the principal under circumstances which make the agent liable pursuant to Article 7:439, paragraph 3;
b. by the agent, unless this termination is justified by circumstances which can be attributed to the principal or is justified by the age, invalidity or sickness of the agent on the basis of which he reasonably cannot be expected to continue his activities;
c. by the agent who has transferred, with approval of the principal, his contractual position under the commercial agency agreement to a third party.

Article 7:443 Non-competition obligation (restraint of trade clause)
- 1. A clause limiting the agent in his freedom to work after the end of the commercial agency agreement, is only valid insofar:
a. it has been agreed in writing, and;
b. it is related either to goods or services for which the agent was a representative and a specific territory or to a group of customers and a territory that was entrusted to him.
- 2. Such a clause is only valid for a maximum of two years after the end of the commercial agency agreement.
- 3. The principal can derive no rights from such a clause if the commercial agency agreement has ended:
a. because the principal has terminated the commercial agency agreement without the consent of the agent and without respect for its duration or without observing the statutory or agreed term of notice and without the existence of a compelling reason of which the agent has been notified immediately;
b. because the agent has terminated the commercial agency agreement for a compelling reason, of which the principal has been notified immediately and for which the principal can be blamed;
c. by a court's judgment on the basis of circumstances for which the principal can be blamed.
- 4. The court may, upon demand of the agent, nullify such a clause in full or in part on the ground that it is unfairly disadvantageous for the agent in proportion to the interests of the principal that it intends to protect.

Article 7:444 Prescription
A right of action based on Articles 7:439 or 7:440 becomes prescribed one year after the fact that gave rise to it has occurred.

Article 7:445 Mandatory law
- 1. It is not possible for parties to derogate from Articles 7:401, 7:402, 7:403, 7:426, paragraph 2, 7:428, paragraph 3, 7:429, 7:430, 7:431, paragraph 2, 7:432, paragraph 2, 7:433, 7:437, paragraph 2, 7:439, 7:440, 7:441, 7:443 and 7:444.
- 2. Neither is it possible to derogate to the disadvantage of the agent from Articles 7:432, paragraph 3, 7:434 and, as long as the commercial agency agreement has not yet ended, from Article 7:442.

Section 7.7.5 Medical treatment agreement

Article 7:446 Definition of 'medical treatment agreement'
- 1. An agreement to provide medical treatment - referred to in the present Section (Section 7.7.5) as the medical treatment agreement - is the agreement under which a natural or legal person ('the care provider') engages himself in the course of his medical professional practice or medical business towards another ('the principal') to carry out (perform) medical actions which directly affect the principal personally or a specific third party. The person who is directly affected by the medical actions is referred to as 'the patient'.
- 2. the term 'medical actions' means:
a. all activities - including examinations and providing medical consults - directly affecting a person and intended to cure him of a disease, to protect him from a disease, to assess his state of health or to render obstetric assistance.
b. actions other than those referred to under point (a) which directly affect a person and which are carried out by a medical doctor or dentist acting in that capacity.
- 3. The actions referred to in paragraph 1 also include the attendant care and nursing of the patient and the provision in any other way for the latter's direct benefit of the material facilities under which such actions may be carried out.
- 4. Actions as referred to in paragraph 1 do not include actions in the field of pharmacy within the meaning of the Medicines Act if performed by an independently established pharmacist within the meaning of that Act.
- 5. Actions to assess a person's state of health or to provide medical supervision do not constitute a medical treatment agreement if carried out on the instructions of a person by others in connection with determining debt-claims or obligations, eligibility for acceptance by an insurer or access to a facility, or suitability for a course of training, employment or the performance of certain work.

Article 7:447 Minors of 16 years and older
- 1. A minor who has reached the age of sixteen years has the legal capacity to enter into a medical treatment agreement for himself and to perform juridical acts that immediately relate to that agreement.
- 2. The minor meant in paragraph 1 is liable for obligations arising from such a medical treatment agreement, without prejudice to the duty of his parents to meet the costs of care and upbringing.
- 3. The minor meant in paragraph 1 has the legal capacity to act in and out of court as far as it concerns matters which are related to the medical treatment agreement.

Article 7:448 Information duty
- 1. The care provider informs the patient clearly and, if requested, in writing of the planned examination and treatment and of developments related to the examination, the treatment and the state of health of the patient. Where the patient has not yet reached the age of twelve years, the care provider must give the information in a way understandable for the patient in view of his apprehension.
- 2. In complying with the obligation laid down in paragraph 1, the care provider will be guided by what the patient reasonably should know of:
a. the nature and purpose of the examination or treatment that the care provider regards necessary and of the actions to be carried out;
b. the to be expected consequences and the risks for the health of the patient;
c. other possible methods of examination or treatment.
d. the state of the patient's health and what is to be expected in this respect as far as it concerns the field of examination or treatment.
- 3.The care provider may only withhold the above mentioned information from the patient as far as providing it would clearly cause serious harm to the patient. If the interest of the patient requires so, the care provider must give the information to a person other than the patient. The information shall be provided to the patient when there is no longer any danger of causing the harm referred to above. The care provider shall not use the authority referred to in the first sentence without having consulted another care provider on the matter.

Article 7:449 Right to not know
If the patient has expressed that he does not want to be informed, information shall not be provided, except where the interest of the patient is outweighed by the harm to himself or to others which may result from withholding the information.

Article 7:450 Necessary consent of the patient
- 1. The consent of the patient is required for actions to be performed in the implementation (performance) of the medical treatment agreement.
- 2. If the patient is a minor who already has reached the age of twelve years, but not yet of sixteen years, then also the consent of his parents exercising parental responsibility (authority) over him or of his legal guardian is required. However, the actions may be performed without the consent of the parents or the legal guardian if the treatment is clearly necessary in order to avoid serious harm to the patient or if the patient, after careful consideration, still wants the actions to be performed after the required consent has been refused.
- 3. In the event that a patient of the age of sixteen years or older cannot be regarded as being capable to make a reasonable appreciation of his interests in the matter, the care provider and a person as referred to in Article 7:465, paragraph 2 or 3, shall comply with the apparent opinion of the patient expressed in writing while he was still capable of making a reasonable appreciation of his interests and containing a refusal to give his consent as referred to in paragraph 1. The care provider may nevertheless deviate from this statement if he thinks there are well-founded reasons for doing so.

Article 7:451 Consent of the patient put down in writing
Upon the request of the patient, the care provider shall in any event put down in writing the consent given by the patient for medical actions of a far-reaching nature.

Article 7:452 Information duty of the patient and duty to cooperate
The patient shall to the best of his knowledge give the care provider the information and cooperation which the care provider reasonably requires for the implementation (performance) of the medical treatment agreement.

Article 7:453 Observing the standards of a prudent care provider
In providing the medical treatment, the care provider must observe the standards of a prudent care provider and, in doing so, he has to act in conformity with the responsibilities laid upon him by the professional standard for care providers.

Article 7:454 Filing duty
- 1. The care provider arranges a file related to the treatment of the patient. He shall use the file to record data concerning the health of the patient and the actions performed on him. The care provider adds other documents to the file containing information which is regarded to be necessary for the purpose of providing the patient with the standard of care of a prudent care provider.
- 2. If requested, the care provider adds to the file a statement made by the patient with regard to the documents that are put in the file.
- 3. Without prejudice to the provisions of Article 7:455, the care provider keeps the documents referred to in the preceding paragraphs for ten years from the date on which they were produced or for as long after the expiry of this period as is reasonably necessary to provide the standard of care of a prudent care provider.

Article 7:455 Destruction of the file
- 1. The care provider shall destroy the documents which he keeps pursuant to Article 7:454 within three months after he has received a request to this effect from the patient.
- 2. Paragraph 1 does not apply as far as the request of the patient concerns documents of which it is likely that their preservation is of considerable importance for another person than the patient or as far as a statutory provision made by or pursuant to law opposes against such a destruction.

Article 7:456 Inspection right regarding the patient's file and right to make copies
If requested, the care provider shall provide the patient with access to and copies of the documents referred to in Article 7:454. Access to and copies of the documents shall not be provided insofar this is necessary to protect the privacy of persons other than the patient. The care provider may charge a reasonable fee for providing the copies.

Article 7:457 Obligation of secrecy
- 1. Without prejudice to the provisions of Article 7:448, paragraph 3, second sentence, the care provider ensures that persons other than the patient are not provided with information about the patient or with access to or copies of the documents referred to in article 7:454 without the patient's consent. Information or access to and copies of documents shall be provided only as far as no other person's privacy is infringed thereby. Information or access to and copies of documents may be provided regardless the restrictions referred to in the preceding sentences if this is required by or pursuant to an Act of Parliament.
- 2. Persons other than the patient do not include those persons who are directly involved in the implementation (performance) of the medical treatment agreement, nor persons who act as a substitute (locum) for the care provider, insofar the provision of information or access to or copies of documents is necessary for the activities to be performed by them in that context.
- 3. Nor shall they include those persons whose consent is required pursuant to Articles 7:450 and 7:465 in connection with the implementation (performance) of the medical treatment agreement. If by providing information or access to or copies of documents, the care provider cannot be regarded to be acting in accordance with what is required of a prudent care provider, he shall refrain from acting this way.

Article 7:458 Data for scientific research
- 1. Without prejudice to the provisions of Article 7:457 paragraph 1, information about the patient or access to the documents referred to in Article 7:454 may, if requested, be supplied to another person for the purpose of statistics or scientific research in the field of public health without the patient's consent, if:
a. consent cannot reasonably be requested and guarantees are provided that the patient's privacy will not be inordinately infringed by the conduct of the research;
b. consent cannot reasonably be requested given the nature and purpose of the research and the care provider has ensured that the data are supplied in such a form as to ensure that they cannot be traced back to individual natural persons.
- 2. Information may be provided in accordance with paragraph 1 only if:
a. the research is in the public interest;
b. the research cannot be conducted without the information in question, and
c. the patient in question has not explicitly objected against the possibility that information will be provided for this purpose.
- 3. The fact that information has been provided under paragraph 1 shall be noted in the patient's records.

Article 7:459 Right to privacy
- 1. The actions performed by the care provider in the framework of the medical treatment agreement shall not be observed (watched) by any individual other than the patient unless the patient has given permission for doing so.
- 2. Individuals other than the patient shall not include those persons whose professional assistance is required to carry out the actions in question.
- 3. The individuals whose permission for the actions is required under Articles 7:450 and 7:465 shall not be included either. If, by allowing the actions to be observed (watched), the care provider cannot be regarded to be acting in accordance with what is required of a prudent care provider, he shall not permit such observation.

Article 7:460 Termination of the medical treatment agreement by the care provider
The care provider shall not terminate the medical treatment agreement, unless there are compelling reasons for doing so.

Article 7:461 Remuneration
The patient shall pay the care provider a remuneration, unless the care provider receives a salary for his work under provisions issued by or pursuant to an Act of Parliament or unless something else results from the medical treatment agreement.

Article 7:462 Joint liability of the hospital
- 1. If, in the implementation (performance) of the medical treatment agreement, activities are performed in a hospital which is not a party to that agreement, the hospital shall bear joint liability for any failure to comply with the medical treatment agreement as if it was a party to that agreement itself.
- 2. By a 'hospital' as referred to in paragraph 1 is understood an institution or a department thereof that under Article 5 of the Act Admission of Care Institutions is recognised or admitted as a hospital, nursing home or mental institution, an academic hospital or an abortion clinic within the meaning of the Termination of Pregnancy Act.

Article 7:463 No limitation or exclusion of liability
The liability of a care provider or, in the case referred to in Article 7:462, of a hospital, cannot be limited or excluded.

Article 7:464 Medical actions other than on the basis of a medical treatment agreement
- 1. If medical actions are performed in the course of a medical professional practice or medical business other than by virtue of a medical treatment agreement, then the present Section (Section 7.7.5) and Articles 7:404, 7:405, paragraph 2, and 7:406 of the Civil Code apply accordingly as far as the nature of the legal relationship does not oppose to this.
- 2. If the actions in question are those specified in Article 7:446, paragraph 5:
a. the documents referred to in Article 7:454 shall be kept only as long as this is necessary in connection with the purpose of the examination, unless their destruction would conflict with statutory provisions made by or pursuant to an Act of Parliament;
b. the person to whom the research relates, shall be given the opportunity to say whether or not he wishes to be informed of the results and the conclusions of the research and, if so, whether he wishes to be the first to be notified so that he can decide whether others are to be informed.

Article 7:465 Legal representation of patients who have no legal capacity to act for themselves
- 1. If the patient has not yet reached the age of twelve years, the care provider shall fulfil the obligations to the patients arising from the present Section (Section 7.7.5) in respect of either the parents who exercise parental responsibility (authority) over the patient or the patient's legal guardian.
- 2. The same shall apply if the patient has reached the age of twelve years, but he cannot be regarded as being capable of making a reasonable appreciation of his interests in the matter, unless the patient has reached the age of majority and is placed under adult guardianship or under protective mentorship, in which case the obligations shall be fulfilled by the care provider towards that legal guardian or mentor of the adult.
- 3. If a patient who has reached the age of majority and who cannot be regarded as being capable of making a reasonable appreciation of his interests in the matter, is not placed under adult guardianship or under protective mentorship, the care provider shall fulfil the obligations to the patient arising from the present Section (Section 7.7.5) towards the person who is authorised in writing to act on the patient's behalf. If there is no such person or if he does not act, the obligations shall be fulfilled towards the spouse or other life companion of the patient, unless the patient refuses this, or, if there is no such person, towards a parent, child, brother or sister of the patient.
- 4. The care provider shall fulfil his obligations towards the patient's legal representatives as referred to in paragraphs 1 and 2 and the persons referred to in paragraph 3 unless this is incompatible with the standards of a prudent care provider.
- 5. The person towards whom the care provider is bound by paragraph 2 or 3 to fulfil his obligations to the patient arising from the present Section (Section 7.7.5), shall exercise the duty of care of a prudent legal representative. This person shall involve the patient as much as possible in the fulfilment of his duties.
- 6. Where the patient objects to an action of a far-reaching nature for which a person as referred to in paragraph 2 or 3 has to give his consent, this action may be performed only if it is clearly necessary to prevent serious harm to the patient's health.

Article 7:466 Necessary consent in emergency situations
- 1. Where, pursuant to Article 7:465, in order to perform an action only the consent is required of a person referred to in that Article, and not the consent of the patient himself, this action may be performed without the consent of this person if there is no time to request his consent because immediate performance of the action is clearly necessary to prevent serious harm to the patient.
- 2. A consent that is required pursuant to Articles 7:450 and 7:465 is presumed to have been given if the action in question is not of a far-reaching nature.

Article 7:467 Bodily materials for scientific research
- 1. Anonymous substances or parts secreted from the body may be used for medico-statistical or other medico-scientific research insofar the patient from whom the bodily material originates has not objected against this and the research is carried out with due care.
- 2. Research using anonymous substances or parts shall be defined as research which guarantees that the bodily material used for research purposes and the data obtained therefrom cannot be traced back to the person from whom they originated.

Article 7:468 Mandatory law
It is not possible to derogate to the disadvantage of a patient from the provisions of the present Section (Section 7.7.5) nor from Articles 7:404, 7:405, paragraph 2, and 7:406 of the Civil Code.