Boilerplate clauses under Dutch law: do they still work?

Published on 11 November 2026

Boilerplate clauses under Dutch law do not always work as an English or American drafter expects: Dutch courts read them by what the parties could reasonably expect, and reasonableness and fairness can limit them. As a Dutch contract lawyer at MAAK Advocaten in Amsterdam, I review clauses such as the no oral modification clause and the non-waiver clause before foreign companies sign.

This article covers five standard clauses for companies abroad with an English-language contract governed by Dutch law: no oral modification, non-waiver, best or reasonable efforts, contra proferentem and severability. For the wider framework, see our overview of commercial contracts in the Netherlands.

Do boilerplate clauses work the same under Dutch law?

Not always. A Dutch court gives effect to a boilerplate clause, but reads it as the parties could reasonably understand it. English case law on the same words does not decide the matter.

The standard is the Haviltex test. What matters is the meaning the parties could reasonably give to the clause, and what they could reasonably expect of each other. A purely linguistic reading is not enough (Supreme Court 13 March 1981, ECLI:NL:HR:1981:AG4158). On top of that, a contractual rule does not apply where that would be unacceptable by standards of reasonableness and fairness (Article 6:248(2) Dutch Civil Code). We compare the two systems in more detail in Dutch civil law compared with English contract law.

Clause	What the English drafter expects	What Dutch law makes of it
No oral modification	Only signed written changes count	Valid, but the parties can agree to set it aside, also by conduct; interpretation and Article 6:248(2) DCC decide
Non-waiver	Tolerating a breach never costs a right	Helps, but forfeiture and reasonableness and fairness still apply (Article 6:248(2) DCC)
Best / reasonable efforts	A graded duty with a known meaning	No statutory meaning; an obligation of means, interpreted case by case
Contra proferentem	Ambiguity counts against the drafter	A statutory rule only for standard terms used with consumers (Article 6:238(2) DCC); between businesses one circumstance among others
Severability	The rest survives a void clause	Largely the statutory default already (Article 3:41 DCC)

Is a no oral modification clause enforceable under Dutch law?

Yes, a no oral modification clause is valid under Dutch law, but it is not watertight. The parties who agreed it can also agree to set it aside, and depending on the circumstances they can do so informally.

Declarations can be made in any form and can follow from conduct, unless otherwise provided (Article 3:37(1) Dutch Civil Code). A written-form clause is such a provision, agreed by the parties themselves. But the parties remain free to change their contract, including that clause, and that later agreement can itself be informal. A Dutch court will ask what the parties meant by the clause: is writing a condition for any change to bind, or a way to prove a change? It will also ask whether their later conduct shows that they set the clause aside. And invoking the clause can be unacceptable by standards of reasonableness and fairness (Article 6:248(2)).

The risk sits in emails. Whether an informal change binds depends on who agreed it, with what authority, and how both sides acted afterwards. For amendments generally, see contract amendment under Dutch law.

My advice is to treat the clause as a procedure, not a shield. Agree who may sign changes on each side, and record every change in a signed addendum.

Is your counterparty relying on a boilerplate clause, or are you about to sign one? Send me the contract and correspondence through our page for a Dutch contract lawyer, and I will tell you what the clause does for your position under Dutch law.

Does a non-waiver clause protect your rights under Dutch law?

Largely, yes. A non-waiver clause supports the position that tolerating a breach is not giving up a right. It does not switch off reasonableness and fairness, so a right can still be lost through clear conduct.

Dutch law already starts from a similar point. Forfeiture of a right (rechtsverwerking) requires conduct that is incompatible, by standards of reasonableness and fairness, with later exercising the right. The mere passage of time is not enough. There must be special circumstances: justified reliance that the right will not be exercised, or unreasonable prejudice to the other party if it still is (Supreme Court 12 January 2024, ECLI:NL:HR:2024:24, para. 3.4).

Two points need attention. First, the clause itself remains subject to Article 6:248(2) Dutch Civil Code. Second, an actual waiver of a claim is an agreement under Dutch law. An offer to waive for nothing in return counts as accepted if the other side takes note of it and does not reject it without delay (Article 6:160 Dutch Civil Code). An email saying “we will not charge the penalty this time” can therefore cost more than intended.

What does best efforts or reasonable efforts mean in a Dutch contract?

Dutch law gives “best efforts” and “reasonable efforts” no fixed meaning. Both usually create an obligation of means (inspanningsverbintenis), not of result, and what they require follows from interpreting your contract.

The Dutch Civil Code does not define these terms, and the graded scale familiar from common-law practice (best, reasonable, all reasonable) has no statutory basis in the Netherlands. A Dutch court applies the Haviltex test. One general ruling on interpretation, not about efforts clauses, shows how this works. In a detailed, English-language share purchase agreement with an entire agreement clause, negotiated with professional advice, the Supreme Court accepted that the most obvious linguistic meaning could carry decisive weight as a starting point (Supreme Court 19 January 2007, ECLI:NL:HR:2007:AZ3178, paras. 3.4.3 and 3.7.3). In such a contract the choice between “best” and “reasonable” can matter. What it requires still follows from interpreting your contract, not from English case law.

If a party falls short of what the clause requires, the usual consequence is liability for damages. As a rule the party must first be in default, and there is no liability if the shortcoming cannot be attributed to it (Article 6:74 Dutch Civil Code). In disputes, the question is what the party actually did. I therefore advise clients to describe the expected efforts concretely in the contract, in terms of actions, resources and reporting, rather than to rely on the adjective.

Does contra proferentem apply to a Dutch commercial contract?

Not as a fixed rule. Dutch statute applies contra proferentem only to standard terms used with consumers. Between businesses, who drafted an unclear clause is one circumstance a court may weigh under the Haviltex test.

The statutory rule is in Article 6:238(2) Dutch Civil Code: in case of doubt, the interpretation most favourable to the other party prevails. It applies to contracts covered by Articles 6:236 and 6:237, which concern counterparties who are natural persons not acting in the course of a business.

Who drafted the text still matters. In a dispute over a supply contract, the Supreme Court found that a court of appeal had not explained why it gave great weight to the wording. The supplier had argued that the text was not negotiated, that it had no lawyer, and that the model came from the buyer’s legal department (Supreme Court 5 April 2013, ECLI:NL:HR:2013:BY8101, para. 3.4.2). The court did not apply contra proferentem as a rule; it treated the drafting history as part of the Haviltex test. Interpretation disputes are covered in our page on the interpretation of Dutch contracts.

What happens to the rest of the contract if one clause is void?

Under Dutch law the rest of the contract usually survives a void clause, even without a severability clause. The exception is where the void part is inseparably connected to the rest, given the contract’s content and purpose.

This partial nullity rule is in Article 3:41 Dutch Civil Code. Article 3:42 adds conversion: a void act can take effect as another, valid act if its purpose matches closely enough that the parties would have chosen that alternative. A severability clause therefore mainly records what the parties intended, which helps when the “inseparable connection” is disputed.

The replacement wording does not settle everything either. A duty to agree a valid replacement “closest to the original intent” still leaves the content open. A Dutch court can fill gaps through reasonableness and fairness (Article 6:248(1) Dutch Civil Code). For void and voidable contracts generally, see the invalidity of a contract under Dutch law.

Where does the entire agreement clause fit in?

The entire agreement clause carries weight under Dutch law, but it does not exclude the Haviltex test either. We cover it separately in our article on the entire agreement clause under Dutch law.

What should you do when the other side relies on a boilerplate clause?

Do not accept the clause at face value, and do not answer in a hurry. Under Dutch law, the outcome depends on the full contract, the correspondence and how both sides have performed, so collect those first.

What you can do yourself, before you reply:

• gather the signed contract, all amendments and the governing-law clause;
• collect the emails and invoices that show how both sides actually performed;
• note who on each side agreed changes, and when;
• avoid statements that could read as a waiver or as accepting the other side’s reading.

Whether the clause holds, and what your reply should say, depends on those documents. That is what I assess per file.

Practical example: a supply contract and a price change by email

A hypothetical illustration: a US manufacturer supplies components to a Dutch distributor under an English-language contract governed by Dutch law, with a no oral modification clause and a non-waiver clause. The manufacturer’s sales director agrees by email to a temporary discount. The distributor keeps paying the discounted price for eighteen months, and the manufacturer keeps invoicing it without comment.

When a new finance team claims the difference, the clauses help, but they do not settle the matter. The distributor will argue that the parties set the written-form requirement aside, or that the manufacturer’s conduct makes the claim unacceptable. I would first establish what the email said and who had authority. Then I would put the distributor on notice for the future. Only then would I decide whether to claim the past difference or negotiate a new price.

When should you have a Dutch lawyer review your boilerplate clauses?

At two moments. First, before you sign a Dutch-law contract based on an Anglo-American template. Second, as soon as your counterparty invokes a boilerplate clause against you, or ignores one you rely on.

Once a dispute starts, the correspondence you send becomes part of the circumstances a court weighs. If the case goes to a Dutch district court, you need a lawyer outside cantonal cases (Article 79(2) Dutch Code of Civil Procedure). For the general role of good faith in these disputes, see reasonableness and fairness in Dutch law.

How does MAAK Advocaten handle boilerplate clauses?

For foreign companies with a contract under Dutch law, we work in four steps:

1. We read the contract and identify which template clauses Dutch law treats differently from what you expect.
2. We advise which clauses to keep, which to adapt, and where the real protection lies in how you work, not in the clause.
3. In a dispute, we assess the correspondence and conduct, and write to the counterparty.
4. Without a solution, we negotiate a settlement or act in summary proceedings or on the merits, at first instance and on appeal.

Frequently asked questions about boilerplate clauses under Dutch law

Are boilerplate clauses enforceable under Dutch law?

Yes, in principle. Dutch law gives effect to standard clauses in commercial contracts, but interprets them by what the parties could reasonably understand and expect, not by their meaning in English case law. A clause also does not apply where that would be unacceptable by standards of reasonableness and fairness.

Is a no oral modification clause valid in the Netherlands?

Yes. A clause requiring written amendments is valid between businesses in the Netherlands. Because the parties can always agree to change their own contract, including that clause, they can also set it aside again, sometimes by their conduct. Whether they did so depends on the facts and the correspondence.

Can you lose a contractual right by not enforcing it under Dutch law?

Through forfeiture, only in exceptional cases. Under Dutch law the mere passage of time is not enough: there must be special circumstances that created justified reliance, or that would unreasonably prejudice the other party. Limitation periods and the duty to complain about a defective performance apply separately (Articles 3:307 and 6:89 Dutch Civil Code).

Does Dutch law apply contra proferentem between businesses?

Not as a statutory rule. The Dutch Civil Code applies the most favourable interpretation for the other party only to standard terms used with consumers. In business contracts, the fact that one party drafted an unclear clause is one of the circumstances a court can weigh when interpreting it.

When should I have a Dutch lawyer review the boilerplate in my contract?

Before you sign a Dutch-law contract based on an English or American template, and as soon as the other side relies on a boilerplate clause. Whether a clause protects you needs a legal assessment of the contract and the correspondence. At MAAK Advocaten in Amsterdam we make that assessment and represent companies at first instance and on appeal.

Primary sources

• Article 3:37 Dutch Civil Code: form of declarations
• Article 3:41 Dutch Civil Code: partial nullity
• Article 3:42 Dutch Civil Code: conversion of a void act
• Article 3:307 Dutch Civil Code: limitation of claims for performance
• Article 6:74 Dutch Civil Code: damages for failure to perform
• Article 6:89 Dutch Civil Code: duty to complain about a defective performance
• Article 6:160 Dutch Civil Code: waiver (release) of a claim
• Articles 6:236 and 6:237 Dutch Civil Code: standard terms in contracts with consumers
• Article 6:238 Dutch Civil Code: interpretation of standard terms in consumer contracts
• Article 6:248 Dutch Civil Code: supplementing and limiting effect of reasonableness and fairness
• Article 79 Dutch Code of Civil Procedure: representation by a lawyer
• Supreme Court 13 March 1981, ECLI:NL:HR:1981:AG4158 (Haviltex): interpretation of contracts
• Supreme Court 19 January 2007, ECLI:NL:HR:2007:AZ3178: weight of the wording in a negotiated English-language agreement with an entire agreement clause
• Supreme Court 5 April 2013, ECLI:NL:HR:2013:BY8101: interpretation of a commercial contract drafted by one party
• Supreme Court 12 January 2024, ECLI:NL:HR:2024:24: forfeiture of rights (rechtsverwerking)

Signing a contract under Dutch law, or facing a counterparty that relies on its boilerplate? Put your contract and the correspondence to me: call +31 20 210 31 38 or send your question through our page for a Dutch contract lawyer.