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    The (ir)relevance of an entire agreement clause

    As a standing rule for the interpretation of contracts under Dutch law, the meaning which both parties may, under the relevant circumstances at stake, reasonably give to a certain provision and what they may reasonably expect from each other in respect thereof shall be decisive (the Dutch Supreme Court in its famous Haviltex judgment of 1981).

    Over more recent years the Dutch Supreme Court held that, in commercial agreements between professional parties, as a starting point, the most obvious grammatical interpretation in the context of the wider agreement shall be of decisive importance, though counter evidence is always permissible (inter alia in Pont Meyer and UPC/Land).

    In its recent judgment of April 5, 2013 (Lundiform/Mexx) the Dutch Supreme Court ruled that there is no reason to attribute great importance to the specific wording of an agreement if (i) such wording was not negotiated, (ii) was part of a standard agreement drafted by the legal department of one party and (iii) the other party was not assisted by a lawyer when entering into the agreement.

    In addition, the Supreme Court ruled that an entire agreement clause does not change that as the meaning thereof depends on all relevant circumstance at stake, including (a) the wording thereof, (b) the nature, content, purpose and level of detail of the agreement and (c) the way the clause was discussed and became part of the agreement. The Court added that an entire agreement clause in itself is not an interpretation clause and does not necessarily have any specific meaning under Dutch law or prevent that the interpretation of the agreement is affected by statements made and actual conduct prior to the execution of the agreement.

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