Plain meaning of the words not always determinative for commercial contracts

The Dutch Supreme Court decision of 5 April 2013, LJN BY8101 (Lundiform/Mexx), gave an important ruling about the interpretation of commercial contracts that potentially reduces commercial certainty. The ruling reduces the emphasis on the specific wording of a contract, even if it contains an ‘entire agreement clause’, and makes it clear that the courts will consider other factors if it can be shown that the contract does not express the parties’ intentions.

Under Dutch law, if there is a dispute about the meaning of a contract provision, a Dutch court will ascertain this meaning by applying the following standard: what could the parties reasonably have understood that provision to mean and what could they reasonably have expected from each other? For this so-called ‘Haviltex formula’, all facts and circumstances are relevant, including the conduct of the parties before and after entering into the contract. Until recently, for commercial contracts (such as between financial service providers and professional parties), the plain meaning of the words used has been widely regarded as most important when interpreting the contract, even more so if it contained an ‘entire agreement clause’…

If you are registered and logged in to the site, click on the link below to read the rest of the Allen & Overy briefing. If not, please register or sign in with your details below.

Analysis from The Lawyer

  • Panel reviews

    Panel reviews 2014: The chosen ones

    Which firms are cutting it in this era of slimline rosters, and who are the GC new brooms making clean sweeps? The Lawyer can reveal all

  • training

    Accutrainee: Revolution postponed

    At the time of its launch Accutrainee was described as a revolutionary change to the training model. Has it proved to be so? Not really.

View more analysis from The Lawyer


One Bishops Square
E1 6AD

Turnover (£m): 1,189.00
No. of lawyers: 2,304
Jurisdiction: UK
No. of offices: 11
No. of qualified lawyers: 273