Dutch law has the principle of freedom of contract, parties can agree whatever they want, in whatever form they want. As long as it is not illegal or contrary to morality. However, because there is a social need for regulation, specific rules for contracts are also included in the law, so-called special contracts, of which the contract of assignment is one. Other agreements that, like the assignment contract, involve the performance of work, but are not covered by the rules of the assignment contract under the law, are:
- Employment contracts;
- Contracts for hire (bringing about a ‘work of a material nature’);
- Contracts of custody;
- Agreements to publish works;
- Transport contracts.
The commission contract is mainly regulated in the law for when the contractor and principal have not agreed anything. If they did agree on something, it applies. The best-known of the above special agreements is the employment contract, which, as we know, is subject to a lot of rules, but in the context of the flexibilisation of the labour market, the last few years have seen a strong growth of the self-employed without personnel, also known as the zzp-ers. The self-employed worker works on the basis of a so-called contract for services.
The assignment contract is an agreement in which the contractor accepts an assignment from the client. That assignment must involve the performance of work. The contractor must perform his work as a good contractor. In other words, he may not ‘pull the wool over his eyes’. He must also carry out the assignment himself, unless it is clear from the assignment that he may have the assignment carried out by others. The contractor must also follow timely and responsible instructions given by the employer. If the client gives unreasonable instructions and does not want to deviate from them, the contractor can terminate the assignment contract (more on that later). While working on the assignment, the contractor must keep the client informed about his work and must notify the client as soon as he has finished his assignment (unless the client already knows about it, of course). He then also indicates how he has completed the assignment. If he has spent money or received money on behalf of the principal, he will indicate how much it was. If there are several persons who have jointly received a commission contract from a client, they are in principle each separately liable for the entire commission, unless the relevant shortcoming cannot be attributed to either of them.
The client is obliged to pay wages to the contractor if he concludes the assignment contract on a business basis. If it has not been agreed how high that wage is, it will be calculated in the usual way. If there is no usual way of calculating the wage, a reasonable wage is paid. If the expenses incurred by the contractor are not already included in the wage (this will have to be stated in the assignment contract), the client is obliged to reimburse the contractor for them. If the contractor suffers damage due to a special danger associated with the assignment when performing the assignment and the realisation of the danger cannot be attributed to him, the employer must pay that damage. Had the contractor entered into the assignment contract as an entrepreneur, this only applies if the hazard is not part of the normal risks associated with that profession or business. Even if the contractor had not entered into the assignment contract in his profession or business, but he does receive wages and the hazard was factored in, the principal is not liable.
If there is a client who gave the assignment together with another person, both are jointly and severally liable (each for the whole) towards the contractor.
Termination of assignment agreement
Cancelling a commission contract can be done at any time for the client. In case law it has been determined that, based on reasonableness and fairness, this cannot always be done. A professional client may have to pay damages, depending on the circumstances of the case. A private client never has to and it is not possible to deviate from this in the contract.
The professional contractor may only terminate the assignment contract if he has weighty reasons (such as unwillingness to comply with unreasonable demands imposed on him by the client) or the assignment contract is for an indefinite period of time and does not end by completion.
If the assignment contract ends prematurely, the contractor is entitled to wages and the client will, of course, have to pay them. If only wages were agreed for the completion of the entire assignment, a reasonable wage will be determined (on the basis of the work already performed, the client’s benefit thereof and the manner in which the contract ended).
Points of attention commission contract
With the assignment contract, there are two major points of attention:
Do not misuse the assignment contract as an alternative employment contract. Indeed, misuse may result in the agreement still being regarded as an employment contract, as a result of which all the rules of the employment contract also apply. Among other things, minimum wage (or CAO wage) will then have to be paid and holiday allowance will have to be paid.
Most of the regulations on the assignment contract concern so-called ‘regulatory law’, which allows for deviations. For example, it may be interesting to deprive the client who is an entrepreneur of the right to terminate at all times (or attach a notice period to it). For private individuals, this is not possible.
Assignment contract – Conclusion
The assignment contract is a special contract with a number of specific rules in the law governing the obligations of client and contractor as well as regulating how the assignment contract comes to an end.
Given the specific nature of the assignment contract, it is wise to contact a lawyer specialised in it at Fruytier Lawyers in Business when drawing it up or when having questions and conflicts about it.