Faculty of law blogs / UNIVERSITY OF OXFORD

On Dutch Law Legal Opinions

Author(s)

Jan Marten van Dijk

Posted

Time to read

2 Minutes

In my book ‘On Opinions. A concise guide to drafting and evaluating Dutch Legal opinions’ – I define an opinion as (a) an opinion by an appropriately qualified legal expert – a lawyer (advocaat), a civil law notary (notaris), or an in-house lawyer; (b) on a certain legal relationship (or legal situation) – an agreement, a security right, a share, a legal entity; and (c) whose substance, and, often, whose form is customary in practice. Opinions, thus defined, are common, particularly in the financial sector. The purpose of an opinion is to give the recipient insight into the legal risks attaching to the legal relationship that is the subject of the opinion. In an opinion, the opinion-giver confirms that certain risks do not exist, and alerts the recipient to the risks that do. This gives the recipient a point of departure for determining whether it is responsible to enter into the legal relationship that is the subject of the opinion.

As a matter of Dutch law, the opinion-giver must give his opinion with the care that would be observed by a reasonable opinion-giver. This applies whether the recipient is the opinion-giver's client, or any another person. Determining the level of care that a reasonable opinion-giver should observe requires deliberation. I put forward three reference points for making that deliberation: (a) what is the purpose that the recipient wants to achieve; (b) what can the opinion-giver do to accommodate that purpose; and (c) what are the costs involved in giving the opinion? As opinions are highly standardized in practice, and the fundamental circumstances in which opinions are given are usually identical or comparable, this deliberation can largely be made on a general level. The outcome is reflected in ‘customary opinion practice’, which is generally followed by opinion-givers when giving their opinions.

My book is based on and focuses on practice. It explains what an opinion is, it describes the different building blocks which, in accordance with customary opinion practice, are usually included in opinions, it analyses which risks will typically be indicated in an opinion and which risks will not, and it clarifies why opinion-givers must perform certain research and may leave other research aside.

Jan Marten van Dijk is a partner at De Brauw Blackstone Westbroek.

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