ဒတ်ချ်ဥပဒေအရ စာချုပ်ဖျက်သိမ်းခြင်း- မည်သည့်အချိန်တွင် မည်သို့အလုပ်လုပ်သည်

You can dissolve a contract under Dutch law (ontbinding) when the other party fails to perform: Article 6:265 of the Dutch Civil Code (BW) gives that right for every failure, unless it is so minor or of such a special nature that dissolution is not justified. In most cases the other party must first be in default (verzuim), which usually requires a written notice of default with a reasonable final period.

Dissolution has no retroactive effect (Article 6:269 BW). It releases both parties from what is still to be performed and creates an obligation to undo what has already been performed.

ဒတ်ချ်ဥပဒေအရ ဖျက်သိမ်းခြင်းဆိုတာ ဘာကိုဆိုလိုတာလဲ။

Dissolution is one of the remedies for a failure in performance (tekortkoming, usually called wanprestatie). It is the heaviest remedy, because it ends the relationship and obliges both sides to return what they received (Article 6:271 BW).

The other remedies are demanding performance, suspending your own performance and claiming damages. Keep three ways of ending a contract apart. Dissolution responds to a failure during a valid contract. Annulment (vernietiging) responds to a defect at formation, such as fraud, threat or mistake, and works retroactively. Termination by notice (opzegging) ends a continuing contract for the future without any failure. Choosing the wrong instrument is a common reason why a claim fails. Our overview of the တရားဝင်စာချုပ်၏ အချက်များ explains when an agreement is validly formed.

Because dissolution works only for the future, clauses meant to survive the contract stay in force, such as confidentiality, choice of law, arbitration, penalty and limitation-of-liability clauses. You are released only from the obligations still to be performed.

When does a breach justify dissolution?

Any failure does, unless the debtor shows that it is too minor or too special to justify dissolution with all its consequences (Article 6:265(1) BW). The burden of proving that exception lies with the party resisting dissolution.

The court weighs all circumstances: the nature of the contract, the size of the failure compared with the whole performance, whether it can still be repaired, what the creditor stands to lose and how the debtor behaved once the problem surfaced. Under the same article you can also dissolve only partly; Article 6:270 BW then reduces both performances proportionally.

• Failures that usually justify dissolution: machinery that does not meet the specification and cannot be fixed within a workable period, a substantial unpaid part of the price after repeated demands, a contractor who abandons the works, software that is unusable for its agreed purpose.
• Failures that usually do not: a delay of a few days where time was not essential, a cosmetic defect, a shortfall in a marginal part of a large contract. Price reduction, damages or suspension are then the proportionate remedies.

For the underlying concept, see our glossary entry on စာချုပ်ဖောက်ဖျက်မှု.

What does your contract say about dissolution?

Read the contract and the general terms first. Businesses often exclude or limit the right to dissolve, or make it conditional on a cure period; between businesses such clauses are in principle valid. In consumer contracts a clause that takes away the consumer’s right to dissolve is on the black list of Article 6:236(b) BW and is deemed unreasonably onerous. Check older standard documents against our guide to ယေဘူယျစည်းကမ်းသတ်မှတ်ချက်များ.

Do you first have to put the other party in default?

Usually yes. Under Article 6:265(2) BW the right to dissolve only arises once the debtor is in default, unless performance has become permanently or temporarily impossible; default normally requires a written notice of default (ingebrekestelling) under Article 6:82 BW.

A valid notice states exactly what the other party failed to do and gives a reasonable period to still perform: a few days for a payment, longer for a repair that needs parts. Send it in writing to the contractual address and keep proof of sending. If you dissolve before a reasonable period has run, your dissolution is premature. Our explanation of the ပုံသေသတိပေးချက် sets out what the letter should contain.

When is no notice of default needed?

Article 6:83 BW lists three situations in which default arises automatically:

• a deadline for performance passes, unless it appears that the deadline was meant otherwise (so not every contract date is a strict deadline, fatale termijn);
• the obligation arises from an unlawful act or is a duty to pay damages, and it is not performed immediately;
• the creditor must infer from a statement by the debtor that the debtor will not perform.

If performance has become impossible, for example because a unique item sold has been destroyed, no default is needed either (Article 6:265(2) BW). When in doubt, send the notice: it costs a day and removes the most successful defence against dissolution.

How do you dissolve: by letter or through the court?

Usually by letter. Under Article 6:267 BW dissolution takes effect through a written declaration by the entitled party, and the court can also pronounce it on request.

If the contract was concluded electronically, the declaration can also be made electronically. State clearly that the contract is dissolved, identify the contract and the failure, refer to the notice of default and give the date of effect. Do not combine dissolution with a continuing demand for performance; that invites the argument that you never dissolved.

Ask the court (gerechtelijke ontbinding) when the facts are contested, when the stakes justify the certainty of a judgment, or when the law requires it. Under Article 7:231 BW a lease of a building, including a home or business premises, can only be dissolved by the court for a tenant’s failure, apart from limited exceptions such as serious disturbance of public order. Employment contracts follow their own rules, set out below.

Is suspension a better first step?

Often. Under Article 6:262 BW you may suspend your own performance while the other party does not perform; with partial or improper performance only to the extent the failure justifies it. Suspension keeps the contract alive and puts pressure on the counterparty while your notice of default runs. Say clearly that you suspend and why.

စာချုပ်ဖျက်သိမ်းပြီးနောက် ဘာတွေဆက်ဖြစ်မလဲ။

Both parties are released from the obligations covered, and whatever was already performed must be undone (Article 6:271 BW). Goods and money go back; the legal ground for what was performed remains, but each party must return what it received.

What if a performance cannot be returned?

Then its value is paid instead. Under Article 6:272 BW the value at the time of receipt replaces the duty to undo; a painter cannot take the paint off your wall and a consultant cannot take back advice. If the performance did not meet the contract, the payment is limited to the value it actually had for the recipient, which for a badly executed service can be modest.

Can you claim damages as well?

Yes. Under Article 6:277 BW the party whose failure caused the dissolution must compensate the loss suffered because the contract is dissolved instead of performed. That covers the extra cost of a replacement transaction, wasted costs and lost profit that can be substantiated. Keep quotations from replacement suppliers and a clear record of costs.

Which special rules apply to consumer sales, leases and employment?

Several fields restrict the general right to dissolve. The most important are consumer sales (Article 7:22 BW), leases of buildings (Article 7:231 BW) and employment contracts, where dismissal law applies instead.

စားသုံးသူရောင်းချမှု

A consumer buyer usually cannot go straight to dissolution. Under Article 7:22(2) BW the right to dissolve or reduce the price only arises when repair and replacement are impossible or cannot be required of the seller, or the seller failed to repair or replace properly; a minor defect does not justify dissolution. Under Article 7:23(1) BW the buyer must notify the seller within a reasonable time after discovering the defect; in a consumer sale a notice within two months of discovery is always in time.

အလုပ်အကိုင်စာချုပ်များ

An employer cannot dissolve an employment contract by letter. For redundancy and long-term incapacity the employer needs permission from the UWV; for other grounds, such as poor performance or a damaged working relationship, it asks the subdistrict court (kantonrechter) to dissolve the contract under Article 7:671b BW on one of the grounds in Article 7:669(3) BW. Most employment relationships in practice end by settlement agreement (vaststellingsovereenkomst).

Where the employer takes the initiative, the employee is in principle entitled to the transition payment (transitievergoeding) under Article 7:673 BW, from the first day of employment. See our pages on the အကူးအပြောင်းငွေပေးချေမှု, စမ်းသပ်ကာလတွင် အလုပ်ထုတ်ပယ်ခြင်း နှင့် ရပ်စဲခြင်းနှင့် အသိပေးခြင်းကာလများ.

Which deadlines can cost you the right to dissolve?

Two: the duty to complain and prescription. Under Article 6:89 BW a creditor who does not protest within a reasonable time after discovering a defect, or after he should have discovered it, loses every remedy for that defect, dissolution included.

Under Article 3:311 BW the legal claim to dissolve prescribes five years after the day following the day the creditor became aware of the failure, and in any case twenty years after the failure arose. The claim to undo performances after dissolution prescribes five years after the day following the dissolution. Under Article 6:268 BW a dissolution can still be invoked as a defence against a claim for performance after prescription.

What should you check as the party who wants to dissolve?

• Record the failure in writing as soon as you notice it, and protest in time (Article 6:89 BW).
• Check the contract and general terms for exclusions or cure periods.
• Send a notice of default with a realistic final period, unless Article 6:83 BW applies.
• Put the dissolution in a separate, unambiguous letter.
• Keep what you must return and secure the evidence of your loss.
• If the other party is in financial trouble, weigh dissolution against a secured settlement.

What should you check as the party facing dissolution?

• Check whether you were actually in default: was there a valid notice with a reasonable period?
• Assess whether the failure is too minor to justify dissolution; you bear the burden of proof.
• Check whether the contract or general terms limit the other party’s right to dissolve.
• Contest an unjustified dissolution in writing at once and keep offering performance.
• Calculate what the other party must return to you under Articles 6:271 and 6:272 BW.

What can we do for you with dissolving a contract?

ကျွန်တော်တို့၏ contract and corporate lawyers act for both the dissolving party and the party facing dissolution.

• We assess whether the failure justifies dissolution under Article 6:265 BW.
• We draft the notice of default and the declaration of dissolution.
• We calculate the restitution and the damages claim under Articles 6:271 to 6:277 BW.
• We contest an unjustified dissolution and demand performance.
• We conduct the proceedings before the district court or the subdistrict court.

အကျဉ်းချုပ်

• Every failure in performance can justify dissolution, unless it is too minor or special (Article 6:265 BW).
• The debtor must usually be in default first, normally through a written notice of default.
• Dissolution is made by written declaration; a lease of a building can only be dissolved by the court.
• Dissolution works for the future: performances are undone and damages can be claimed on top.
• Complain in time and watch the five-year prescription period of Article 3:311 BW.

မကြာခဏမေးခွန်းတွေမေး