Breach of contract and lost profit involving scarce products
Two traders in Disney Lorcana collectible cards were held jointly and severally liable to repay €46,000 in purchase price and €27,835 in lost profit after refusing to deliver 591 of 603 ordered products. The court rejected the plea of force majeure and upheld the validity of the mandate agreement despite its (belated) termination. Professional traders cannot hide behind their supplier and must prove that they actually purchased the products.
Breach of contract on delivery of Disney Lorcana collectible cards
The Midden-Nederland District Court held two traders in Disney Lorcana collectible cards jointly and severally liable to repay the purchase price and to compensate lost profit. Of an order of 603 products worth over €62,000, only 12 were delivered. The court held that the sale agreements had been validly rescinded in part and that neither defendant could rely on force majeure.
In May and June 2023 the claimant ordered a large consignment of the first limited print run of Disney Lorcana products from defendant 2: 500 booster boxes, 100 gift sets and 3 playmats, for a total purchase price of €62,399.96. Defendant 2 in turn placed the order with defendant 1. The products were to be delivered in three “waves”, starting around 1 September 2023.
Problems arose immediately with the first wave. Defendant 1 refused to deliver products following a WhatsApp dispute between the three parties that had got out of hand. In the only delivery that did take place — on 10 October 2023, through the parties' lawyers — the claimant received just 5 booster boxes, 5 gift sets and 2 playmats. After a formal demand on 14 November 2023 and the continued absence of further delivery, the claimant rescinded the agreements in part on 2 January 2024.
A notable feature of the case was the mandate agreement entered into by the claimant and defendant 2 on 23 September 2023. Under that agreement the claimant could bring claims directly against defendant 1 in her own name and to the exclusion of defendant 2. Defendant 2 terminated that mandate agreement after receiving the writ of summons.
Mandate agreement not terminable during the proceedings
The court held that the termination of the mandate agreement was not valid. Although the agreement contained no express provision excluding interim termination, it followed from its purport and from the renewal provision in article 5.1 that termination during ongoing proceedings was not possible. A different reading would mean that, while conducting proceedings, the claimant would continually risk having the plug pulled while still having to bear the costs. The power of termination under Section 7:408(1) DCC is of a non-mandatory nature for professional principals — here the parties had tacitly excluded it.
The claimant could therefore also address defendant 1 directly. The court found that defendant 1 had not delivered in accordance with her own distribution method (in order of receipt) and that the single partial delivery did not meet the arrangements. Both defendants were in default, and the failure to perform — 591 of 603 products not delivered — justified rescission.
Defendant 2's plea of force majeure failed: as a professional trader, it is at her risk that her supplier fails to deliver. Defendant 1's reliance on force majeure and on her general terms and conditions likewise came to nothing. She had not even substantiated that she had actually purchased the products, let alone that a force majeure situation existed. The assertion that products had been stolen from her car remained unproven.
The lost profit of €27,835.36 — calculated as the difference between the purchase price paid and the market value on the date of rescission — was awarded in full. The court considered the substantiation with per-product market prices on the reference date sufficiently realistic. The reliance on mitigation (Section 6:109 DCC) was rejected: the damages arose from a failure to perform under a voluntarily concluded agreement.
In the indemnity proceedings, defendant 1 was ordered to pay defendant 2 whatever defendant 2 had been ordered to pay in the main proceedings.
What does this mean for lost-profit claims involving scarce products?
This judgment illustrates the strength of a well-structured mandate arrangement. Through the mandate agreement, the claimant could address both her supplier and her supplier's supplier in a single set of proceedings, with joint and several liability. That the intermediate party then tried to terminate the mandate after receiving the writ of summons only made it clearer that the parties had not intended that arrangement to be non-committal.
The assessment of damages is also worth noting. The court accepted a relatively simple calculation of lost profit based on the market value on the date of rescission. Anyone claiming lost profit on scarce products that appreciate in value would do well to record the per-product market value on the reference date using verifiable sources.
Finally, the judgment confirms that professional traders cannot hide behind their supplier when that supplier fails to deliver. Force majeure is a narrow gateway for professional parties — all the more so where they cannot even show that they actually purchased the products.
Frequently asked questions
Can a mandate agreement be terminated during ongoing proceedings?
Not as a matter of course. This case shows that the purport of a mandate agreement may mean that termination during proceedings is not permitted. The court held that termination would place the claimant in an unequal position: she bears the costs of the proceedings while the mandatary is able to withdraw. Parties can exclude that power by means of a clear provision.
When is the substantiation of lost profit sufficient?
Lost profit can be calculated as the difference between the purchase price paid and the market value on the date of rescission. This judgment accepts a relatively simple method: the market values on the reference date are established per product using verifiable sources (price comparison, trading platforms). Documentation is crucial; vague estimates meet with objections.
Can a professional trader hide behind its supplier's force majeure?
No. For professional businesses, force majeure is a narrow gateway. They must properly organise their own supply chain. In addition, force majeure must be substantiated in detail: which products were ordered, how were they purchased, why could delivery not take place? Bare assertions without evidence fall short.
ECLI:NL:RBMNE:2025:933, Midden-Nederland District Court, 26 February 2025.
Cited case law
District Courts: ECLI:NL:RBMNE:2025:933