Contract amendment under Dutch law

As attorneys in the Netherlands specializing in contract law, we often receive the question of whether and how contracts can be adapted or amended. If, due to unforeseen circumstances, a contract is no longer up to date and one party suffers a disadvantage for this reason, an adjustment or amendment of a contract is an alternative to the termination or cancellation of a contract. In these circumstances, the rights and obligations under the contract will remain in force and only those clauses will be amended that disadvantage the party entitled to the amendment. In the following article, the most important aspects of a contract amendment under Dutch law are explained in more detail.

Possibility of adapting the contract in the Netherlands

Firstly, the possibility of adapting a contract is regulated in the Dutch Civil Code in Article 6:230 BW (burgerlijk wetboek). According to this article, an agreement can be amended if, due to an error, there is a power to annul the agreement. Thus, before the agreement is terminated, the parties are given the opportunity to adjust only those parts of their agreement that are disadvantageous to one (or both) parties.

If, for example, you have bought a car from a Dutch car dealer and it turns out a short time later that the car does not meet your expectations, you have the option of withdrawing from the contract. However, instead of cancelling the agreement with the result that you will receive the purchase price back in exchange for returning the car to the dealer, the parties can agree to amend the agreement. Such an adjustment could, for example, be a reduction in the purchase price.

Conditions for amending the agreement under Dutch law

Before a contract can be adapted or amended, the party wishing to adapt or amend the contract must notify the other party in good time or propose the amendment. Timely notification of the desired adjustment then has the legal consequence that a cancellation or withdrawal from the contract is no longer possible. Rather, the parties have then reached an agreement among themselves and adjusted the contract accordingly.

Especially in cross-border situations and international contracts with a Dutch party, language barriers can sometimes cause inconsistencies in the contract which can be resolved by an adjustment. In this case, it is advisable to consult a English-speaking lawyer who can assist you with contract adjustments with a Dutch party.

Adjustment of the contract by the Dutch judge

Moreover, in court proceedings the court may also at the request of one of the parties amend the contract rather than order its annulment in order to remove the relevant disadvantage. This is regulated in CC Art. 6:258. In this case, it is therefore the judge who decides that the contract should be amended, and not the parties themselves, who decide among themselves. However, a precondition is that unforeseen circumstances exist. Unforeseen circumstances are, among other things, circumstances that occurred after the agreement was concluded and which those parties did not take into account (explicitly or implicitly) in an agreement. The circumstances must also be such that the party entitled to withdraw cannot reasonably expect the agreement to continue unchanged. The court may also impose further conditions, such as the payment of compensation.

In order to assess whether unforeseen circumstances exist, it is possible, for example, to take into account the assumptions made by the parties when concluding the contract. However, it is not possible to say in general terms when an unforeseen circumstance exists. Rather, it depends on the circumstances of the individual case whether a party can invoke an unforeseen circumstance. In addition, the nature of the contract and its interpretation can also be the starting point for examining the existence of an unforeseen circumstance.

Dutch specialist lawyer for contract law and procedural law

Although the threshold for premature termination of an existing contract is certainly high, this does not mean that it is impossible to adapt or amend it. Our lawyers in the Netherlands will be happy to help you with questions regarding contract adjustments. In the event of legal proceedings, our German-speaking litigation lawyers can also provide you with the best possible support. If you have any questions regarding (international) contracts, simply contact our English-speaking specialist lawyers in Amsterdam. MAAK Advocaten will be happy to help you.

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E-mail: remko.roosjen@maakadvocaten.nl