When concluding an agreement, parties often talk about its content. They often talk about liability, retention of title, intellectual property, etc. However, it is important not to skip the beginning. The beginning involves 'parties' and 'the preamble'. I will explain this.
Parties
It often seems simple and a formality: 'which parties enter into the agreement'? But, if too little attention is paid to this, it can have unpleasant consequences.
First, it is important to consider in what capacity a party enters into an agreement.
If the contract is concluded by (i) a person acting as a sole proprietorship, a person in private concludes the contract and can therefore be held liable in private for the obligations ensuing from the contract, (ii) a general partnership, the partners can be held jointly and severally liable for the obligations ensuing from the contract and (iii) a limited liability company (B.V.), a legal entity enters into the obligations ensuing from the contract, as a result of which - barring exceptions - only the legal entity can be held liable for the obligations ensuing from the contract.
However, not only checking the party under the heading 'parties' is important. Often, the body of the agreement will contain a provision naming parties other than the party listed under 'parties'. Terms you then come across are "affiliations", "subsidiaries and/or sister companies" and "affiliates of the party".
It should be borne in mind that by including these parties in the body of the agreement, these parties could start deriving rights from the agreement. This could mean that other parties become involved in the agreement when that is not the intention.
If other parties are involved in the contract, then the impact on (i) obligations to supply services or products, (ii) liability, (iii) insurance coverage, (iv) creditworthiness of the other parties, (v) etc. should be examined.
In addition, it should be carefully checked whether the person signing on behalf of the party is also authorised to bind that party to the agreement. Should a person sign on behalf of a party but is ultimately not authorised to sign, there is a chance that that party may not feel bound by the agreement. Should that circumstance arise, it creates all sorts of problems.
Considerans
The function of the preamble is to set out the principles on the basis of which the parties concluded the agreement. In addition, the preamble is also intended to provide background information on the parties.
The preamble is not intended to set out therein the agreements between the parties. The agreements are meant to be included in the body of the agreement.
Sometimes it is not possible to clearly articulate provisions of the agreement, for instance because the parties cannot agree on a particular wording. In order to ascertain what exactly the parties have agreed on when there is subsequent discussion about this, it will be necessary to look not only at the (literal) linguistic wording of the relevant agreement, but also "at the sense which the parties could reasonably ascribe to these provisions in the given circumstances and at what they could reasonably expect from each other in this respect. The social circles to which the parties belong and the legal knowledge that can be expected from such parties may also be of importance. (the so-called Haviltex criterion).
When the intention and expectations of the parties are included in the preamble, it is very helpful in answering the question on how to interpret the provision in question.
Note! The importance and meaning of the recitals in interpreting the contract can be regulated by the parties. This can be for the better as well as for the worse.
Strengthening the preamble can be done through a provision in the agreement, such as, for example, "The preamble is an indissoluble part of the agreement and the arrangements made are to be interpreted in the light of the considerations contained therein".
On the other hand, a contract may contain a provision that "The recitals are for background information only and will not affect the interpretation of the provisions contained in the contract." This is intended to limit the importance of the recitals.
Resumen
These two topics are often briefly considered. By paying too little attention to these two topics, legal situations may suddenly be interpreted differently than intended. It is therefore important not to underestimate these two topics and to pay sufficient attention to them to avoid unpleasant surprises.