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Summary of the article ‘Non Contractual Relations in Business: A Preliminary Study’
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Summary of the article ‘Non Contractual Relations in Business: A Preliminary Study’
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Non contractual relationsSamenvatting ‘Non Contractual Relations in Business: A Preliminary
Study’
Contracts can be defined with two important elements:
1. Rational planning of the transaction with careful provision for as many future
contingencies (= onvoorziene omstandigheden) as can be foreseen
2. The existence or use of actual or potential legal sanctions to induce performance of
the exchange or to compensate for non-performance
People negotiating a contract can make plans concerning several types of issues:
They can plan what each is to do or refrain from doing
They can plan what effect certain contingencies are to have on their duties
They can plan what is to happen if either of them fails to perform
They can plan their agreement so that it is a legally enforceable contract
There is a different degree of planning by the parties in contracts. We can state them from
doing the most to doing the least:
They may carefully and explicitly plan
They may have a mutual but tacit (= stilzwijgend) understanding about an issue
They may have two inconsistent unexpressed assumptions about an issue
They may have never thought of the issue
Disputes
Dispute settlement involves determining whether or not a party has performed as agreed
and, if he has not, doing something about it. Disputes are frequently settled without
reference to the contract or potential or actual legal sanctions. There is a hesitancy to speak
of legal rights or to threaten to sue in these negotiations. Even where the parties have a
detailed and carefully planned agreement which indicates what is to happen if, say, the
seller fails to deliver on time, often they will never refer to the agreement but will negotiate
a solution when the problem arises apparently as if there had never been any original
contract. As sometimes said: ‘you can settle any dispute if you keep the lawyers and
accountants out of it. They just do not understand the give-and-take needed in business.’
We moeten twee vragen beantwoorden:
1. How can business successfully operate exchange relationships with relatively so
little attention to detailed planning or to legal sanction?
Hier zijn verschillende redenen voor:
o Little room for misunderstandings
Most problems are avoided without resort to detailed planning or legal
sanctions because usually there is little room for honest misunderstandings
or good faith differences of opinion about the nature and quality of a seller's
performance.
o There are many effective non-legal sanctions
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