Contracts are often made under the tension of two opposing influences. On the one hand, when parties get to the stage where they want to enter into a contract, they intend to come to a transaction jointly. On the other hand, both parties often have opposing interests. The task of lawyers is to bridge this tension.
One option is to leave the opposing interests unsaid or not address them too clearly. While this is the easiest method, it is questionable whether it serves the parties very well. It ensures that when a conflict arises there is little guidance and therefore little certainty.
A more fruitful way is usually to raise the different interests in so many words and see if an actual solution is conceivable. That may create friction, but it provides the opportunity for building in solutions. If you want to minimize friction costs when entering into transactions, it is best to be as clear as possible.
A good example of how not to do it can be found a judgment of the Rotterdam District Court dated July 16, 2025 (ECLI:NL:RBROT:2025:8916).
Non-compete
This ruling is about whether a former shareholder violated a non-compete agreement. This non-compete clause was contained in a 2013 shareholder agreement. In 2017, one of the original shareholders transferred her shares to a sister company. Although a new shareholder agreement was made, it was not signed. In 2021, the natural person behind the other shareholder joined a competitor. In the proceedings, the company and the new shareholder complained that this violated the non-compete agreement.
The Court is quick to dismiss these claims - there is no question of a violation of the non-compete agreement. The new shareholder is not a party to the 2013 shareholder agreement and the 2017 shareholder agreement has not been signed. Thus, there is no contractual basis for the claim.
The company also has no claim: the non-compete agreement was not written for its benefit: "Contrary to [Company B2]'s contention, [C] and [Company C] did not undertake towards [Company A] to comply with the non-compete agreement. A shareholders' agreement creates rights and obligations between shareholders." (r.o. 5.9, emphasis added).
Shareholder Agreement
There is a lot to be said about this statement - what is the role of an unsigned agreement? What is the role of the corporation in a shareholder agreement? But as far as this column is concerned, the most important lesson is expressed pithily in the note by J.A.M ter Berg: "the disagreement about the interpretation of the [shareholders' agreement] finds, I think, its cause in the rather clumsy way in which this agreement seems to have been edited ... The agreement could also have been clearer regarding its end and its consequences." (JOR 2026/2).
With proper drafting of the agreement, the parties could have saved themselves going to court and all the additional costs.
American Chief Justice Oliver Wendell Holmes wrote in 1904 that "hard cases make bad law." We can add that "bad drafting makes high costs." It seems tempting to avoid confrontations, but those who are wise ensure that a confrontation early on does not degenerate into a (costly) conflict. Those who are wise therefore invest in clarity at the front end of the process. That is always cheaper than a conflict afterwards.
