Maatschap contract

A partnership is sealed by means of a partnership agreement. It is important to note that a partnership agreement is completely free of formalities. The advantage is that you can determine everything yourself. The disadvantage is that it is easy not to be very strict, which can lead to conflicts later on due to gaps or ambiguities in the agreement. Because of this, it is important to prepare well for drawing up a partnership agreement. What must be agreed? What scenarios are possible in the near and more distant future regarding entry and exit? What about the goodwill?

Looking at the jurisprudence of the Health Care Sector Arbitration Tribunal, it is striking that most problems concerning the partnership contract that has been concluded concern a small number of matters.

Non-Compete

Just as in many employment contracts, a non-competition clause (non-compete) is common in partnership contracts. Many partnership contracts have a very broadly formulated non-competition clause. In other words, if a medical specialist partner leaves the partnership, he or she may not open a competitive practice in a large radius around the former practice for the first few years. The circumstances of the case determine whether such a clause will stand up legally. It makes a difference whether the practice is located in a busy urban area with many other practices or in the countryside with no other competing partnerships in the vicinity.
In principle, pacta sunt servanda (what is agreed is agreed) applies. Medical specialists are highly educated and know what they are signing up for (see also this judgment). However, it follows from European competition decisions that:
A maximum period of two years is considered justified, and a prohibition of competition of a longer duration can only be justified in a limited number of circumstances.
It is understandable that partners include generous non-competition clauses in their partnership contracts. However, in order to avoid conflicts when leaving, it is advisable to take this into account when drafting the contract and to adopt a reasonable and fair attitude. An extreme non-competition clause in violation of the above is null and void, which means that the ex-partner no longer has to take it into account at all. This can have unpleasant consequences.

Distribution

The partners do not agree on the division of the result or the spreading of costs or a loss of the partnership. Uncertainty about goodwill also often plays a role in partnership conflicts. These problems are often easy to prevent. For example, very clear agreements can be made on patient allocation, goodwill contribution and share of costs and benefits. It cannot be emphasised often enough: the clearer and more concrete such provisions are in the partnership agreement, the better. Although you probably have a good relationship of trust with the other partners, it is very wise to consider every possible scenario, discuss it with the other partners and make written agreements on this basis. Do not assume gentleman’s agreements, but rather a dark scenario. A good starting point could be previous cases of the Arbitration Tribunal. It is advisable to engage the services of a good accountant at this stage.

Forced departure from the maatschap

Voluntary departure from the partnership is relatively simple. Most partnership agreements give the departing partner a period of six months to do so. If a partner leaves the company, the conflict is already at an advanced stage. The rest of the partners are no longer happy and want to expel the non-performing (or fraudulent etc.) partner. A number of creative partners once decided to individually terminate the partnership and subsequently start a new one without the partner they wanted to expel. Unfortunately, reasonableness and fairness (Article 6:248 of the Dutch Civil Code) stood in their way.
Therefore, a separate exclusion clause must be included in the partnership agreement. In the event of a conflict, this is fairly easy. Again, go through all possible scenarios that could lead to conflict. Based on this, you can include concretely formulated stipulations. These limits (event A. triggers a warning, 3 occurrences B. and there is a conflict of interest) are the same as the ones in the partnership agreement.