Representation Do you have the intention to enter into an agreement with a company? You should first check the Chamber of Commerce if the person whom you are doing business with, is authorized to bind the company. There have been lots of legal proceedings regarding representation as it is a complex matter. We therefore advise that you first check the Chamber of Commerce before you sign any agreement or the like: check Chamber of Commerce of Bonaire (http://www.bonairechamber.com) or Curacao (http://www.curacao-chamber.cw) and search for the company, which is free. In the Netherlands (https://www.kvk.nl) you will have to pay a small fee.
Liability Most people, including lawyers, do not completely understand the matter of liability. Often we see letters from lawyers with the following wording: “we hold you liable for …”. You do not have to be anxious if you receive such letter as the law determines whether you are liable and not (the lawyer of) the other party! Holding someone liable doesn’t have any meaning. Either you are liable or you are not, regardless if someone ‘holds’ you liable.
How often do you see a sign that reads: “We (or the management) do not hold ourselves liable for theft/loss/damage etc”. We have never seen anyone who holds him/herself liable! What is the value of such sign? Lets assume that the person or company intends to say that it is not liable. Is that even possible? No, the law determines if someone is liable or not, and not (legal) person. For example, a secured parking garage or cloakroom cannot claim that they are not liable for theft or loss. That is the core of the agreement you have with them. The best option is to place a warning sign “at your own risk”, so it is clear what is meant.
Notarial deed? In the Netherlands a notarial deed of transfer is required for the sale and transfer of shares. On Curacao, St Maarten and the BES-island this is not a requirement. An agreement between the purchaser and seller of shares is sufficient. Please note that the law of the country where the company is established, determines the applicable law. We advise to have a lawyer draw such agreement in order to ensure that all legal aspects arising from a transfer will be accordingly dealt with.
Please be aware of the word “preliminary”. Never sign a “preliminary contract” if you do not wish to be bound. Once you sign, an agreement is entered into! People are often put under pressure to sign by urging that it is an amazing offer and if you do not sign, the offer does not apply any longer. Never sign in such an event as mostly the party who desperately wishes to sign, is the party who has the best deal. Never sign straight away. Take some time to think about it. The offer won’t go away.
Legal Opinion In international (financing) transactions you wish to know whether the other party is authorized to enter into the transaction, if such transaction is permitted under the laws of the foreign country and if all required notifications, registrations, permits etc. have been filed. It is advisable to ask a specialized lawyer if this is the case. We call this a “legal opinion”.
Warranty Warranty, who does not know it? What does a warranty actually entail? Often people speak about a statutory warranty, which is odd as “warranty” is not incorporated in the laws of Bonaire or Curacao! Recently it does exist under Dutch law, based on European rules, however, until recent you couldn’t find the word guarantee in a law. A warranty merely means that a seller agrees that in the event there is a defect in the product, the buyer may return such product (without any extra costs) within a certain period of time. This sounds very reasonable, however, it is legally determined that a purchased product should have a regular/normal lifespan. For example, a washing machine should have a lifespan of approximately 10 years. In the event your washing machine breaks down after the 3 year warranty period given by the seller, the seller still has to replace or repair the washing machine if it broke down within those 10 years!
Terms and conditions Many sellers (shops) state in their terms that a product cannot be returned, cannot be changed for a different product or that you are not entitled to a refund (sometimes within a short period of time). This is not permitted by law. If you purchase a product and it appears to be broken, the seller is obliged to repair, give you another product or provide you with a refund.
Sellers (or their lawyers) may write anything they wish in their terms, but that does not mean that it is right. A simple example: Falkena c.s. may include in its general terms that it has the right to smash the car of its client with a hammer in the event the client does not pay. Fortunately, such an action is prohibited by law, and therefore such a condition is not valid.