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Under Dutch law, a contract (overeenkomst) is formed by an offer and its acceptance (Article 6:217(1) Dutch Civil Code). Each party needs a will aimed at a legal effect, expressed in a declaration (Article 3:33). No particular form is required unless the law provides otherwise, and an acceptance in principle takes effect when it reaches the offeror (Article 3:37(1) and (3)).
What makes a contract binding in the Netherlands?
Under Dutch contract law, a contract is a multilateral juristic act by which one or more parties assume an obligation towards one or more others (Article 6:213(1)). A contract has not only the legal effects the parties agreed, but also those that follow from the nature of the contract, the law, custom and reasonableness and fairness (Article 6:248(1)).
Dutch law does not require “consideration” or a separate “intention to create legal relations”, as common law does. A contract can also create obligations for one party only. What counts is a will aimed at a legal effect, expressed in a declaration (Article 3:33). If the other party reasonably understood your statement or conduct as a declaration with a certain meaning, you cannot invoke that you did not have that will (Article 3:35).
A contract comes into existence through an offer (aanbod) and its acceptance (aanvaarding) (Article 6:217(1)). Formation is not the same as validity. The parties must have capacity (Article 3:32) and the obligations must be determinable (Article 6:227). A contract that by its content or purpose is contrary to good morals or public order is void (Article 3:40(1)), and a contract concluded under defective consent can be voidable, as explained below.
The formation of a contract is governed by Article 6:217 of the Dutch Civil Code:
Article 6:217 Dutch Civil Code (unofficial translation)
1. A contract comes into existence by an offer and its acceptance.
2. Articles 6:219 up to and including 6:225 apply, unless the offer, another juridical act or a custom provides otherwise.
This article is written by Remko Roosjen, contract lawyer in the Netherlands. It sets out how a contract is formed under Dutch law and when a contract can be annulled for mistake, fraud, threat or abuse of circumstances. See also our page on what makes a contract binding in the Netherlands.
How do offer and acceptance create a contract?
An offer is a proposal to conclude a contract that is specific enough to be accepted. An offer can in principle be revoked, unless it contains a period for acceptance or its irrevocability follows from the offer in another way. Revocation is only possible as long as the offer has not been accepted and no acceptance has been sent; an offer stated to be without obligation (vrijblijvend) can still be revoked without delay after acceptance (Article 6:219(1) and (2)). An oral offer lapses if it is not accepted immediately, a written offer if it is not accepted within a reasonable time, and any offer lapses when it is rejected (Article 6:221).
An acceptance that deviates from the offer counts as a new offer and as a rejection of the original one. If it deviates only on minor points, it counts as an acceptance and the contract is formed on the terms of the acceptance, unless the offeror objects to the differences without delay (Article 6:225(1) and (2)).
A declaration directed at a specific person only takes effect once it has reached that person. A declaration that did not reach the addressee, or reached it late, still takes effect if this is due to the addressee’s own act, the act of persons for whom it is responsible, or other circumstances concerning its person that justify that it bears the disadvantage (Article 3:37(3)). The contract is then deemed concluded at the moment the acceptance would have been received without the disruption (Article 6:224). The offeror can treat a late acceptance as made in time if it informs the other party without delay (Article 6:223(1)).
If offer and acceptance refer to different general terms and conditions, the second reference has no effect, unless it also expressly rejects the terms referred to first (Article 6:225(3)). A party is also bound by general terms if, when the contract was concluded, the user understood or should have understood that it did not know their content (Article 6:232). Between businesses that are not both established in the Netherlands, the Dutch statutory rules on general terms and conditions in Articles 6:231 to 6:247, including Article 6:232, do not apply, whatever law governs the contract (Article 6:247(2)). Article 6:225(3) is not part of those rules and still applies if Dutch law governs the contract. For the international sale of goods, the CISG has its own rules on the formation of the contract (Article 4 CISG).
When can you avoid a contract for mistake?
A contract concluded under the influence of mistake (dwaling), which would not have been concluded with a correct view of the facts, is voidable in three cases (Article 6:228(1)): (a) the mistake is due to information given by the other party, unless that party could assume that the contract would have been concluded without that information; (b) the other party, given what it knew or ought to have known about the mistake, should have informed the mistaken party; or (c) the other party made the same incorrect assumption when the contract was concluded, unless it did not need to understand, even with a correct view of the facts, that this would keep the mistaken party from concluding the contract. Dutch law does not use the distinction between a “mistake of fact” and a “mistake of law” as the test.
Annulment cannot be based on a mistake that concerns a purely future circumstance, or that should remain for the mistaken party’s account given the nature of the contract, generally accepted views or the circumstances of the case (Article 6:228(2)). The right to annul lapses if the other party, in good time, proposes an amendment that adequately removes the disadvantage, and the court can amend the contract instead of annulling it (Article 6:230). A voidable contract is annulled by an out-of-court declaration or by a court judgment (Article 3:49). The legal claim to annul for mistake or fraud is time-barred three years after the mistake or fraud was discovered (Article 3:52(1)(c)), but a ground for annulment can always be invoked as a defence against a claim based on the contract (Article 3:51(3)).
What counts as fraud or misrepresentation?
Dutch law has no general concept of “misrepresentation”. A false statement can amount to fraud (bedrog): someone induces another to perform a juristic act by a deliberately incorrect statement, by deliberately keeping silent about a fact he was obliged to disclose, or by another trick. Recommendations in general terms, even if untrue, are not fraud in themselves (Article 3:44(3)). If the fraud comes from someone who is not a party, it cannot be invoked against a contracting party that had no reason to suspect it (Article 3:44(5)).
A contract concluded through fraud is voidable (Article 3:44(1)). An incorrect statement that was not made deliberately is not fraud, but it can make the contract voidable for mistake if the mistake is due to that information (Article 6:228(1)(a)). Apart from annulment, a party that was misled may be able to claim damages, for example on the basis of tort (onrechtmatige daad) if the conditions of Article 6:162 are met.
When is a contract concluded under unlawful pressure?
Dutch law recognises two grounds here. Threat (bedreiging) exists when someone induces another to perform a juristic act by unlawfully threatening that person or a third party with harm to person or property; the threat must be such that a reasonable person can be influenced by it (Article 3:44(2)). Abuse of circumstances (misbruik van omstandigheden) exists when someone who knows or should understand that another is induced to perform a juristic act by special circumstances, such as necessity, dependency, carelessness, an abnormal mental state or inexperience, promotes that act although what he knows or should understand should keep him from doing so (Article 3:44(4)).
A contract concluded under threat or abuse of circumstances is voidable (Article 3:44(1)). In the case of abuse of circumstances, the right to annul lapses if the other party, in good time, proposes an amendment that adequately removes the disadvantage, and the court can amend the contract instead of annulling it (Article 3:54). The legal claim to annul is time-barred three years after the influence has ceased to operate (Article 3:52(1)(b)). Damages may also be claimed if the conditions of Article 6:162 are met.
Frequently asked questions about contract formation under Dutch law
What does Article 6:217(1) of the Dutch Civil Code say?
Article 6:217(1) provides that a contract comes into existence by an offer and its acceptance. Article 6:217(2) adds that the rules in Articles 6:219 to 6:225, among other things on revocation and lapse of the offer and on late or deviating acceptances, apply unless the offer, another juridical act or a custom provides otherwise.
What is the Dutch word for contract or agreement?
The Dutch Civil Code uses the word overeenkomst (Article 6:213(1)). In everyday Dutch, contract (het contract) is also used. An offer is an aanbod and an acceptance is an aanvaarding (Article 6:217(1)).
Is there an official English version of the Dutch Civil Code?
No. The authentic text of the Dutch Civil Code (Burgerlijk Wetboek) is the Dutch text published on wetten.overheid.nl. English translations of the Code are unofficial, so for a legal question always check the Dutch text of the article concerned.
When is a contract concluded: when the acceptance is sent or when it is received?
In principle when it is received: a declaration directed at a specific person only takes effect once it has reached that person (Article 3:37(3) Dutch Civil Code). The offeror can, however, no longer revoke the offer once an acceptance has been sent (Article 6:219(2)).
Can an offer be revoked under Dutch law?
Yes, unless the offer contains a period for acceptance or its irrevocability follows from the offer in another way, and only as long as it has not been accepted and no acceptance has been sent (Article 6:219(1) and (2) Dutch Civil Code). An offer made without obligation (vrijblijvend) can still be revoked without delay after acceptance.
Primary sources
Dutch statutes are only officially available in Dutch, on wetten.overheid.nl.
- Dutch Civil Code (Burgerlijk Wetboek) Book 3: Articles 3:32, 3:33, 3:35, 3:37, 3:40, 3:44, 3:49, 3:51, 3:52 and 3:54
- Dutch Civil Code Book 6: Articles 6:162, 6:213, 6:217, 6:219, 6:221, 6:223, 6:224, 6:225, 6:227, 6:228, 6:230, 6:232, 6:247 and 6:248
- UN Convention on Contracts for the International Sale of Goods (CISG), Article 4
Why does contract formation matter for foreign businesses?
Understanding the formation of contracts under Dutch law, complete with its complexities and finer points, helps ensure that your agreement stands legally valid and protects you against potential legal problems.
In practice: check when your offer becomes binding and whether it is revocable, react without delay to an acceptance that deviates from your offer, and expressly reject the other party’s general terms if you want your own to apply. If you were misled, threatened or taken advantage of, the contract may be voidable for mistake, fraud, threat or abuse of circumstances. See also our pages on what makes a contract binding in the Netherlands and the sales contract in the Netherlands.
