Purchase agreement formed by email: what counts is consensus, not the signature
Seller demands performance after an acquisition that fell through at the final step
After months of negotiations over the acquisition of a paper-processing company — shares for €1,070,000, business premises for €2,025,000 — the deal appeared to be done. On 8 October 2021, the representative of buyer Lindans wrote that "the purchase agreements and the escrow agreement can be signed shortly." A notary appointment had been scheduled for 9 November 2021.
Seventeen days later, Lindans withdrew. It argued that seller XX had breached the confidentiality obligation and would continue its activities in breach of the non-compete clause. XX disputed both allegations and claimed damages for breach of contract.
The district court dismissed the advisory and investigation costs: XX would have incurred them anyway. On appeal, the court of appeal reversed that ruling.
Final consensus by email: the clause does not act as a firewall
The letter of intent contained a condition precedent: Lindans would only be bound "upon reaching final agreement on all parts of the Purchase Agreement and the agreements and declarations connected with it (including the Escrow Agreement)."
Lindans argued that this clause offered protection: as long as there was no signed deed, it was free to walk away. The court of appeal rejected this. The email of 8 October 2021 confirmed agreement on all parts — the share purchase agreement, the real estate purchase agreement and the escrow agreement. After that date, the parties had not negotiated on substance any further, and Lindans itself had made no reservation. The condition precedent had thus been fulfilled.
An advanced stage of negotiations does not always give rise to a binding effect. The Court of Appeal in The Hague held in Bluehoef/AMG that there was no binding purchase agreement: the LOI expressly provided that the transaction would only come about upon signing of the transaction documents and that, upon termination, the parties would owe no damages (clauses 13.1 and 13.2 of the LOI). Justified reliance on the formation of an agreement was therefore excluded. The contrast with the present case is stark: here there was no express exclusion clause, and an email of 8 October 2021 confirmed that all parts had been agreed.
The fact that the written agreement had never been sent made no difference. An agreement is formed by an offer and its acceptance; a signature is not a constitutive requirement unless the parties have expressly agreed so or the law prescribes it.
The reliance on mistake (Section 6:228 DCC) also failed. Lindans' position amounted to a claim that XX intended to breach the non-compete clause. That is a mistake about future conduct — not about an existing circumstance at the time the agreement was concluded. Section 6:228 DCC applies only to mistakes about existing facts. The defence failed.
On the point of the contractual penalty under clause 9 of the NVM purchase deed, the court of appeal found in Lindans' favour. That provision specifically governs the situation of rescission (paragraph 2) and a claim for performance (paragraph 3). XX had converted the obligation into a claim for damages under Section 6:87 DCC. That scenario falls outside the literal wording of clause 9 — the penalty was not awarded.
Positive contractual interest: which costs are covered?
The court of appeal corrected the district court on the calculation of damages. The district court had dismissed the advisory and investigation costs, reasoning that XX would have incurred those costs anyway had Lindans performed.
The court of appeal rejected that. The positive contractual interest seeks to place the creditor in the position it would have been in had the agreement been properly performed. Had Lindans performed, XX would have received the purchase price of over €3 million — and that revenue would have amply covered the costs. Since the agreement was not performed, XX's assets have been reduced by the costs without receipt of the purchase price. Those costs therefore constitute direct loss.
Awarded: advisory costs €42,982.25 + soil investigation €3,212.08 + internal staff hours €12,092.75 = a total of €65,287.08.
The classic defence — "you would have incurred those costs anyway" — only holds for the negative contractual interest. Under the positive contractual interest the question is different: did the cost item stand in the way of the expected net profit? If the revenue would have covered the costs, they count in full as recoverable loss in the event of non-performance.
Frequently asked questions
Can a purchase agreement be formed by email, even where there is not yet a signed deed?
Yes. An agreement requires offer and acceptance — a signature is not a constitutive requirement, unless the parties have expressly agreed so or the law prescribes it. An email confirming that agreement has been reached on all parts, including the escrow agreement, may be sufficient to create a binding effect, even where the deed was never drawn up.
What is the difference between the positive and negative contractual interest in damages for breach of contract?
The negative contractual interest compensates the loss suffered as a result of relying on the formation of the agreement — wasted costs. The positive contractual interest places the creditor in the position as if the agreement had been performed. Preparatory costs fall within the positive contractual interest where those costs would, upon performance, have been covered by the purchase price received.
When does the contractual penalty in an NVM purchase deed not apply?
The penalty provision in clause 9 of the NVM purchase deed is tied to specific situations: rescission (paragraph 2) and a claim for performance (paragraph 3). If the creditor chooses to convert the obligation into a claim for substitute damages under Section 6:87 DCC, that situation falls outside the literal scope of clause 9 — the penalty then does not apply.
Court of Appeal 's-Hertogenbosch 24 March 2026, ECLI:NL:GHSHE:2026:847
Cited case law
Courts of Appeal: ECLI:NL:GHDHA:2023:421 · ECLI:NL:GHSHE:2026:847