Condition precedent under Dutch law: when is a deal binding?

Published on 10 November 2026

A condition precedent under Dutch law is a suspensive condition (opschortende voorwaarde): the obligation only takes effect once a future, uncertain event occurs, such as merger clearance, financing or a customer’s approval. As a Dutch contract lawyer at MAAK Advocaten in Amsterdam, I review and negotiate these conditions for foreign companies before they sign.

This article is for companies abroad that buy, sell or supply under a contract governed by Dutch law. For conditions in a share deal, see also our page on M&A and share purchase agreements under Dutch law.

What is a condition precedent under Dutch law?

Under Dutch law, an obligation is conditional when the parties make its effect depend on a future, uncertain event. With a condition precedent, the obligation exists from signing, but nobody has to perform until that event has occurred.

The definition is in Article 6:21 Dutch Civil Code. Article 6:22 adds that a suspensive condition makes the obligation take effect only when the event occurs. The Dutch Civil Code does not use the term “condition precedent”; English-language contracts under Dutch law use it for the suspensive condition. In principle, almost any juridical act can be made conditional (Article 3:38(1) Dutch Civil Code).

Examples of conditions precedent in commercial contracts are:

• clearance by a competition or investment screening authority;
• financing for the buyer;
• consent of a landlord, a major customer or a supervisory board;
• a permit, certification or sample approval before delivery starts.

Whether a clause is a real condition, a mere deadline or an obligation of one party depends on its wording. Dutch courts read that wording in light of what the parties could reasonably expect of each other; our page on the interpretation of Dutch contracts explains that test.

What is the difference between a condition precedent and a resolutive condition?

A condition precedent postpones the effect of an obligation until the event occurs. A resolutive condition (ontbindende voorwaarde) works the other way round: the obligation applies at once and lapses if the event occurs.

Both forms are set out in Article 6:22 Dutch Civil Code. The practical difference lies in what happens in the meantime:

Question	Condition precedent (suspensive)	Resolutive condition
Must the parties perform before the event?	No	Yes
What happens when the event occurs?	The obligation takes effect	The obligation lapses
Performance already made?	Can be reclaimed while the condition is unfulfilled (Article 6:25)	Must in principle be undone (Article 6:24)
Example	Clearance or financing before closing or delivery	A contract that runs at once but ends if, for example, a permit is refused

My advice is to use a condition precedent for anything that must be certain before performance starts. Waiting is usually easier than unwinding a contract that is already running. A resolutive condition only makes sense if both parties deliberately want to start now and accept that risk.

Negotiating a contract under Dutch law with a condition in it? Send me the draft through our page for a Dutch contract lawyer, and I will tell you what the condition does for your side.

Does fulfilment of a condition have retroactive effect under Dutch law?

No. Under Dutch law, fulfilment of a condition has no retroactive effect. The obligation takes effect, or lapses, from the moment the event occurs, and the Civil Code then provides rules for undoing what was already performed.

The rule is in Article 3:38(2) Dutch Civil Code. Once a resolutive condition is fulfilled, the creditor must undo the performance already received, unless the content or purpose of the contract points otherwise (Article 6:24(1)). If a party performs under a condition precedent before the event has occurred, it can reclaim that performance as long as the condition remains unfulfilled (Article 6:25). For the rest, the ordinary rules on obligations apply, insofar as the conditional nature does not stand in the way (Article 6:26).

For a foreign party this matters: do not assume that fulfilment reaches back to the date of signing. Under Dutch law it does not, so the contract itself should state what happens with deliveries, payments and costs made before the event.

What happens if the other party prevents the condition from being met?

The condition counts as fulfilled if the party that benefits from non-fulfilment prevented it, where reasonableness and fairness require this. The reverse also applies: if the party that benefits from fulfilment brought it about, the condition can count as unfulfilled.

Both rules are in Article 6:23 Dutch Civil Code, paragraphs 1 and 2. The test is not automatic. The court looks at what the party had to do under the contract, what it actually did and why. A buyer that simply stops applying for financing is in a different position from one whose bank refused for reasons outside its control.

Article 6:23 is a safety net, not a plan. My advice is to agree an express duty in the contract to make efforts to fulfil the condition. Our article on the MAC clause under Dutch law discusses an Amsterdam case in which a buyer was ordered to make such efforts.

Can a condition depend entirely on the will of one party?

Not without risk. If fulfilment depends purely on the will of one party, Dutch law treats this as a purely potestative condition, and that party may not be bound at all. Approval “at the buyer’s discretion” can therefore mean there is no binding contract yet.

The District Court of Rotterdam applied this to the purchase of let commercial property, where price and conditions had been agreed by email and the sellers never signed the buyer’s letter of intent (District Court of Rotterdam 12 October 2022, ECLI:NL:RBROT:2022:8460). The buyer had made its offer subject to due diligence results satisfactory to the buyer and to approval by its own supervisory board. The court held that these were suspensive conditions (Articles 6:21 and 6:22), but that fulfilment lay entirely in the buyer’s hands. The buyer had therefore not yet wanted to be bound, and no purchase agreement existed. The buyer’s damages claim against the sellers, who had sold to third parties in the meantime, failed.

Conditions such as board approval or satisfactory due diligence can be workable. What makes the difference is an objective element: a standard to test against, or concrete circumstances in which the party may invoke the condition. A deadline alone is not enough: in the Rotterdam case each condition ran for four weeks, during which the buyer could walk away without any restriction. Whether your clause has enough of that is a judgement I make per contract.

How do conditions precedent work in a Dutch share purchase agreement?

In a share purchase agreement (SPA), the conditions precedent decide whether the parties must close. Signing creates the obligation; closing follows once clearances, consents or financing are in place, and a long stop date sets the deadline.

Shares in a Dutch BV pass by notarial deed at closing (Article 2:196(1) Dutch Civil Code); until then, the conditions work under Articles 6:21 to 6:23. Which conditions a Dutch SPA needs is covered on our page on share purchase agreements under Dutch law. A material adverse change can also be drafted as a closing condition; see MAC clauses in a Dutch SPA.

Who may waive a condition, who must make efforts and what happens at the long stop date depend on the SPA wording.

How are conditions precedent used in supply contracts?

In Dutch supply contracts the best-known condition precedent is retention of title: the supplier delivers, but ownership only passes once the buyer has paid. Deliveries can also depend on a permit, certification, sample approval or financing.

A seller that reserves ownership until payment is presumed to have agreed to transfer the goods under the suspensive condition of payment (Article 3:92(1) Dutch Civil Code). Delivery takes place by giving the buyer control of the goods (Article 3:91), but the buyer only acquires a right subject to the same condition (Article 3:84(4)). Our page on retention of title under Dutch law explains the requirements.

For other conditions in a supply deal, the risk sits in the goods made or shipped before the condition is met. If the condition fails, the contract should say who bears those costs. See also our page on supply agreements in the Netherlands.

Practical example: a supply deal conditional on financing

This is an illustration, not a real case. A US machine builder agrees to supply a production line to a Dutch food company. The contract, governed by Dutch law, applies “subject to the buyer obtaining financing within three months”. The buyer later finds a cheaper second-hand line, stops talking to its bank and lets the three months pass.

The supplier wants the contract performed. Whether the court will treat the condition as fulfilled under Article 6:23 depends on what the buyer had to do to obtain financing and on the evidence of what it did. In this situation I would first secure that evidence, then put the buyer on notice, and only then decide between enforcing the contract, negotiating a settlement or a clean exit.

When should you instruct a Dutch lawyer about a condition precedent?

Instruct a Dutch lawyer before you sign a contract with a condition precedent, and again as soon as it looks as if a condition will not be met in time. The first moment fixes the wording; the second decides your evidence and deadlines.

Except in subdistrict court cases (kantonrechter), a party can only enforce the contract before a Dutch district court through a lawyer (Article 79(2) Dutch Code of Civil Procedure). In urgent cases the preliminary relief judge can order provisional measures (Article 254 Dutch Code of Civil Procedure); see our page on summary proceedings in the Netherlands. We work alongside your in-house counsel or your lawyers at home, in English.

How does MAAK Advocaten handle conditions precedent?

We handle conditional contracts for buyers, sellers, suppliers and customers in fixed steps, from reading the draft to proceedings before a Dutch court, so that you know what comes next:

1. We read the contract and the correspondence, and list the conditions, the duties to make efforts and the deadlines.
2. We establish the facts: what has happened, and who did what to fulfil each condition.
3. We advise on the route that serves your commercial goal: saving the deal, renegotiating or a clean exit.
4. We negotiate and, if needed, act in summary proceedings or proceedings on the merits, at first instance and on appeal.

Frequently asked questions about conditions precedent under Dutch law

What is a condition precedent called in Dutch law?

In Dutch law it is an opschortende voorwaarde, a suspensive condition. Under Article 6:22 of the Dutch Civil Code it makes an obligation take effect only once a future, uncertain event occurs. In English-language contracts governed by Dutch law it is called a condition precedent.

Can a condition precedent be waived under Dutch law?

Whether one party can waive a condition on its own, or only with the other party’s agreement, depends first on the wording of the contract and on whose interest the condition serves. A share purchase agreement can say expressly who may waive which condition.

What is a long stop date?

A long stop date is the contractual deadline by which the conditions precedent must be fulfilled. Dutch law has no statutory long stop date, so the contract decides what happens when it passes, for example whether either party may then terminate the agreement.

Does a fulfilled condition take effect from the date of the contract?

No. Under Article 3:38(2) of the Dutch Civil Code, fulfilment of a condition has no retroactive effect. The obligation takes effect when the event occurs. Performance made before that moment can be reclaimed as long as the condition is unfulfilled, under Article 6:25.

When should I involve a Dutch lawyer in a conditional contract?

Before signing, and as soon as a condition may not be met in time. Whether a condition counts as fulfilled, and what you can still do before the deadline, needs a legal assessment. At MAAK Advocaten in Amsterdam we make that assessment and act in Dutch courts at first instance and on appeal.

Primary sources

• Article 2:196 Dutch Civil Code: transfer of shares in a BV by notarial deed
• Article 3:38 Dutch Civil Code: juridical acts under a condition; no retroactive effect
• Article 3:84 Dutch Civil Code: transfer of property; delivery under a conditional obligation
• Article 3:91 Dutch Civil Code: delivery under a suspensive condition
• Article 3:92 Dutch Civil Code: retention of title
• Article 6:21 Dutch Civil Code: conditional obligations
• Article 6:22 Dutch Civil Code: suspensive and resolutive conditions
• Article 6:23 Dutch Civil Code: prevented or induced fulfilment of a condition
• Article 6:24 Dutch Civil Code: undoing performance after a resolutive condition
• Article 6:25 Dutch Civil Code: performance before a suspensive condition is fulfilled
• Article 6:26 Dutch Civil Code: general rules apply to conditional obligations
• Article 79 Dutch Code of Civil Procedure: representation by a lawyer
• Article 254 Dutch Code of Civil Procedure: summary proceedings
• District Court of Rotterdam 12 October 2022, ECLI:NL:RBROT:2022:8460: purely potestative conditions in a letter of intent; no purchase agreement

Signing a contract under Dutch law that depends on a condition, or facing one that has not been met? Put your draft or your dispute to me: call +31 20 210 31 38 or send your question through our page for a Dutch contract lawyer.