On 24 June 2024, a judgment of the Zeeland-West Brabant District Court was published in a dispute concerning the indebtedness of commission in connection with the sale of a yacht (ECLI:NL:RBZWB:2024:4180).
Facts presented
A yacht broker and a shipyard signed two agreements in September 2020. These concern a commission to be paid by the yard to the broker for bringing and assisting a buyer of a yacht in an amount of €10,000 and €30,000, respectively. The commission is due by 15 November 2019. The yard has paid a total of only €15,000. The broker assigned its rights under the commission agreements to the plaintiff in March 2021. The deed of assignment was served on the yard by a bailiff’s writ in April 2021.
The plaintiff claims payment of the balance of the agreed commission. The yard believes that the claimant should be declared inadmissible in its claim, or at least that the claim should be dismissed.
Court considerations
The court considers that the two agreements qualify as private deeds. A private deed provides compelling evidence regarding the truth of a party’s statement for the benefit of the other party. Counter evidence may be adduced against this compelling evidence. In this case, therefore, the owed commission is established unless the yard provides sufficient counter-evidence to refute the compelling evidence, the court said.
The court rejects the yard’s contention that the second commission agreement was drafted only to convince the broker’s landlord of its sound financial situation. The yard did not sufficiently substantiate this contention in light of the plaintiff’s challenge, and thus cannot detract from the binding probative value of the yard’s statement in the commission agreements. The assertion is also contradicted by the fact that the yard paid €5,000 in any event under the second commission agreement. The yard’s contention that the broker did not introduce and guide the yacht buyer in question at all is also rejected as insufficiently substantiated. An appeal by the yard to set off the agreed commission against earlier payments to the broker is also rejected as insufficiently substantiated.
The court further considers that the assignment of the broker’s claim to the plaintiff was valid. A claim such as the one at issue here can be assigned by, inter alia, a deed to that effect and notification thereof to the debtor. The bailiff’s service of the deed of assignment qualifies as such a notification. The court therefore orders the yard to pay the plaintiff the balance of the agreed commission plus interest from 15 November 2019.
Lessons learned
This case demonstrates the importance of a signed document – a deed. The binding probative value of a deed is not easily compromised, especially when parties are divided on the facts. It is therefore important that the wording of an agreement is appropriate to the situation at the time.
We have extensive experience in drafting commission agreements and litigating the indebtedness of commissions on behalf of yards and brokers. If you have questions about the content of such contracts or need an analysis of your dispute, please feel free to contact us.
