A Dutch court considers an agreement between an emeritus professor and the former dean of the faculty board of the Tilburg School of Humanities to supervise PhD students, appropriately concluded and acceptable by standards of reasonableness and fairness.
An emeritus professor and the former dean and director of the faculty board of the Tilburg School of Humanities (hereafter TSH) concluded an agreement mid-2012 on the basis of which the emeritus professor agreed to supervise PhD students from October 2012 onwards and receive an amount of € 25,000 excluding VAT for every doctorate by an external PhD student that took place at Tilburg University under the professor’s supervision as of 1 November 2012. In the period of 2012 to 2016, the professor supervised eight doctorates and invoiced up to a total amount of € 224,455. In this period, Tilburg University paid the full amount of the sums invoiced by the professor. A new dean became aware of this agreement and informed the emeritus professor that the university would no longer pay "doctorate bonuses for professors". A sum of € 75,000 that had been previously approved was not paid. In 2017, the emeritus professor (plaintiff) brought a civil action demanding performance of the Agreement by Tilburg University (defendant).
In the court’s view, the agreement explicitly stated that the plaintiff would no longer be affiliated with the university as a professor. The argument of the plaintiff that the former dean and the former director at the time deliberately agreed on a construction to "bypass" the Executive Board by "replacing the remuneration with a doctorate bonus" and that they were therefore incompetent to conclude the agreement was not followed by the court: "The answer to the question whether the contracting parties at the time had the intention of 'bypassing' is not relevant for answering the question whether the dean and the director were competent to conclude this contract. In any case, a reference to [...] the regulations cannot simply lead to the conclusion that they lack the competence to do so." The defendant's claim that awarding the plaintiff's claim would be contrary to the principle of reasonableness and fairness (Section 6: 248 paragraph 2 DCC) was also dismissed by the court.
The agreement could only be set aside if demanding performance would be unacceptable to standards of reasonableness and fairness. This was not seen to be the case according to the judgment of the court.
The fact that the former dean's conduct and the practice of PhD bonuses was subsequently frowned upon by the defendant was insufficient to unilaterally set aside obligations that were entered into on the basis of Article 6: 248, paragraph 2 of the Dutch Civil Code. Another decisive factor was that the defendant deliberately chose to enter into a paid legal relationship with the plaintiff, despite it being good practice in the academic world for emeriti to exercise ius promovendi without financial consideration.
The court concluded that even if the contract entailed a potential perverse incentive, the plaintiff in any case had not considered this when entering into the agreement. Furthermore, the invocation of nullity of the agreement on the basis of Article 3: 40 Dutch Civil Code fails, because the defendant had not put forward arguments other than the ones dealt with under Article 6: 248 paragraph 2 of the Dutch Civil Code. The court declared that the defendant was legally bound to execute the contract of assignment between it and the plaintiff and ordered the defendant to pay the costs of the proceedings, estimated at € 5,056.13.
Fortunately, nowadays, it is common practice not to pay remuneration to emeriti professors for the supervision of PhD candidates. The court, however, did not deem this practice to be a decisive factor, although the court could have reasonably done so in my opinion.