Reinier advises national and international companies
reinier.russell@russell.nl +31 20 301 55 55The Hermitage Amsterdam museum negotiates with the operator of the museum restaurant on alteration of the opening hours but negotiations fail at the last moment. Is the museum allowed to hold the restaurant to the original agreement?
In 2004, the Hermitage museum concluded a co-operation agreement with the Hermitage Café regarding the running of the catering in the museum, including the Neva restaurant. For this, Hermitage café has to pay an annual depreciation amount of EUR 150,000, plus 8% of the turnover exceeding EUR 2,375,000.
It turns out that the restaurant attracts few costumers outside the openings hours of the museum and therefore Hermitage Café wishes to alter the opening hours (no longer till 1:00 AM). The café negotiates new opening hours and the expected turnover with the museum. Parties agree on the following issues: The restaurant will be open for groups and sponsors at nights, the depreciation amount will be raised to EUR 175,000 annually and beyond a turnover of EUR 1,600,000 the Café has to pay a compensation of 6% of the turnover. So far, the parties had agreed.
Negotiations came to a halt at the last moment because of a new demand by the museum: an additional compensation of 20% of the turnover in the evening hours. The museum then held the Hermitage café to the original agreement but the Neva restaurant still closes its doors at night.
Subsequently, the museum claims termination of the agreement, clearing of the catering sections, and ordering the Hermitage Café to pay damages. In an interim relief procedure it was ordered in favour of the museum and the Hermitage café has to clear the café-restaurant premises. On appeal, the court sets aside the decision of the subdistrict court and holds the museum liable for damages suffered by the Hermitage café because of lost sales and costs caused by the clearing. The museum lodges a cassation appeal. The Supreme Court rendered a decision in this case on 6 October 2017.
The question is whether it is reasonable in the circumstances that the museum holds the café to the original agreement where the café has to be open at night. It was clear to both parties that a structural evening opening of the café-restaurant was not profitable. After all, the turnover threshold was to be lowered. Therefore, the museum could not have reasonably expected the Hermitage Café to comply with the new condition. The Supreme Court does not consider it reasonable for the museum to hold the Hermitage Café to the original agreement in such an advanced stage of the negotiations. Parties, for instance, should have engaged a mediator.
Anyone who undermines negotiations at the last moment by imposing new, unreasonable demands cannot invoke legal proceedings for non-fulfilment of obligations arising from the original agreement. Are you stuck in negotiations? We will gladly help you and determine your position. Please contact us:
What should you bear in mind if you want to change the rent for your business premises? When are you allowed to adjust the price yourself? And in which cases do you have to go to court?
In principle, a continuing performance agreement can always be terminated, even if no arrangements have been made in this regard. But you can’t just do it. What do you need to take into account when terminating the agreement? And what if you want to deviate from the arrangements made about terminating the agreement?
A new EU regulation requires anyone wishing to import cultural goods into the EU to have an import license or submit an importer’s declaration from 28 June 2025 onwards. When is which type of document required? How does it affect art dealers, galleries, auction houses and collectors, both inside and outside the EU?
On 28 June 2025, the European Accessibility Act will come into force. From that data, digital products and services must also be accessible to people with disabilities. Which companies, products and services does the Act apply to? What disabilities should you take into account? What are the consequences of not complying with the Act?
If a contract has ended, there may still be obligations you want your contract partner to fulfil, such as warranties or confidentiality. You can regulate this through survival clauses. What should you look out for when including such clauses?
The franchise agreement and the distribution agreement are very similar, but there are also important differences. What are the consequences if you conclude a franchise agreement when it is actually a distribution agreement or vice versa? How can you avoid this misunderstanding?
