21 November 2007, LJN BC0337, Rechtbank (Lower Court) Amsterdam. Dr. Simone van der Hof

Case Note:, The Netherlands

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146 Digital Evidence and Electronic Signature Law Review, Vol 5                               www.deaeslr.org © Pario Communications Limited, 2008FactsIn this case, G-Sus Wholesale and Design refused to paythe terms of a service contract for a photocopy machineand subsequently rescinded the contract, becauseCanon Nederland failed to respond to the repeatedfailure of the machine to function. G-Sus Wholesale andDesign sent a declaration to Canon Nederland by e-mailin default in accordance with article 6:82 of the DutchCivil Code.Article 6:82 of the Dutch Civil Code provides that aparty must give the other party to a contract notice inwriting to observe the terms of the contract, and areasonable period of time must be given for thedefaulting party to rectify the faults. Once the periodhas lapsed, and the defaulting party has failed toobserve the terms of the contract, there is contractualdefault. The aggrieved party may subsequently act uponthe default by claiming damages or rescinding thecontract.Dutch law does not provide a definition of ‘writing’.However, with the implementation of Directive2000/31/EC on electronic commerce (Directive2000/31/EC of the European Parliament and of theCouncil of 8 June 2000 on certain legal aspects ofinformation society services, in particular electroniccommerce, in the Internal Market, [2000] OJ L178, 1),amongst others, a provision on the legal status ofelectronic contracts has been implemented into theDutch Civil Code by article 6:227a. This provision takesas a starting point, what may be called a functionalequivalence test, which means that where electronicdocuments are able to fulfil the relevant functions of apaper document, both the electronic version as well asthe paper version should be considered legallyequivalent to each other. More specifically, article6:227a of the Dutch Civil Code provides for the followingconditions to achieve full equivalence betweenelectronic and paper contracts: electronic contractsmust be reproducible for subsequent reference, toguarantee sufficient authenticity, to determine themoment of conclusion of the contract, as well as theidentity of the parties with sufficient certainty. With theimplementation of Directive 99/93/EC on electronicsignatures (Directive 1999/93/EC of the EuropeanParliament and of the Council of 13 December 1999 on aCommunity framework for electronic signatures, [2000]OJ L 13, 12), the functional equivalence test had alreadybeen established in the Dutch Civil Code for determiningthe legal status of electronic signatures, and thus hasnow been extended to electronic contracts.Even though the notice, which may act to effect thecontractual default, is not a contract, it may be assumedthat with the introduction of the functional equivalencetest for both electronic contracts and electronicsignatures, the court will also judge other electronicwritings in this way. In this case, however, the court didnot, unfortunately, contemplate the e-mail notice inview of this test nor, for that matter, did it set particularconditions for such e-mail notices. It merely stated thatan e-mail message complies with the requirements of adefault notice set in out in article 6:82 of the Dutch CivilCode. The decision was simply that the e-mail messagewas sufficient to declare the other party in default.© Dr. Simone van der Hof, 2008CASE CITATION: 21 November 2007, LJNBC03371NAME AND LEVEL OF COURT: Rechtbank (Lower Court)AmsterdamPLAINTIFF: Canon Nederland N.V.DEFENDANT: G-Sus Wholesale and Design B.V.CASE NOTE: THE NETHERLANDS1 LJN refers to the publication number at the Dutchofficial case-law publication website,http://www.rechtspraak.nl.Dr. Simone van der Hof is a member of the Editorial Board

Case Note: The Netherlands

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