CASE

Anita decides to rent her husband, Ben, a boat from Anchors Ltd, as a gift. The contract is between Anita and Anchors, and specifies that the crew of the boat will be Ben and four friends.

Ben and his friends take the boat out. They have a great time – so great, in fact, that they are a day late in returning the boat to Anchors. Anchors tell Ben that he will have to pay a late return penalty of €750. Ben refutes this. Anchors draw Ben's attention to clause 14(a) of the contract between Anchors and Anita, which provides for a late-return fee.

Question

From whom can Anchors seek payment of the penalty?

DISCUSSIONS

BELGIUM

Siel Demeyere and Vincent Sagaert

I. Operative Rules

Anchors can seek payment from Anita under the contract. They may, alternatively, be able to seek damages from Ben on a non-contractual basis, as a result of Ben's complicity in contractual breach.

II. Descriptive Formants

This case can be solved in two ways, depending on whether the timely return of the boat, under penalty of the fee, is in the first place conceived as a contractual obligation, or as a burden connected with the clause in favour of a third party. Looking at it from the former point of view, Anchors can seek payment of the penalty from Anita: she is the contracting party and the breach of contract is toerekenbaar/imputable (accountable) to her.