29 July 2002

Jeroen van der Lee and Gerrit-Jan Zwenne

Internet market places introduce suppliers and customers to each other and provide them the facilities to conclude agreements with each other. The subject of this article (please see link to Dutch article below) are the agreements on the basis of which such market places will be entertained. In particular, attention is paid to the question whether a market place agreement under Dutch law may be qualified as a commission contract, agency contract or lease, and which consequences a particular qualification has. Further, a number of other questions are treated that are of interest for the draft of such agreements, such as the question as to who is responsible for the fulfilment of the transactions, who bears the debt-collection risk for the transactions and who is responsible for the information on the website.

The conclusion is that under Dutch law market place agreements are usually regarded as commission contracts and often also as agency contracts. The qualification as lease is less obvious.

If a market place agreement is indeed a commission contract or agency contract, this implies that a number of articles of law apply (mandatory). For example: under Dutch law the qualification as an agency contract means that upon termination of the agreement the market place provider is entitled to a goodwill compensation and that parties are bound to minimum statutory notice periods.

The overview "Points of Interest Internet Market Places" included in the article provides a brief summary of the consequences of a particular qualification. It also shows that the question of qualification of the market place agreement has practical consequences too. Therefore, parties must determine what kind of legal relationship it is prior to drafting the market place agreement. If this is omitted, that parties may be surprised at a certain moment by the applicability of statutory provisions, which were not taken into account at the time of the draft of the contract.

The article has been published in the Dutch Internet Law Review JAVI, 1 June 2002, p. 2-9 (see www.javisite.nl)