Contract Interpretation under Dutch law: The High Court’s Latest Verdict

Published on 3 March 2024 · Last updated 25 October 2026

Dutch courts do not interpret a written contract on its wording alone. Under the Haviltex standard, the question is what meaning the parties could reasonably give to its provisions in the circumstances and what they could reasonably expect from each other (Articles 3:33 and 3:35 Dutch Civil Code). On 25 August 2023 the Supreme Court let stand a ruling applying a clause requiring purely ‘grammatical’ interpretation.

The 2023 case arose from a maintenance settlement between former spouses, but the question it raises matters to any business with a contract governed by Dutch law: can the parties agree that their contract will be read literally? The starting point is that interpretation looks beyond the text, and that reasonableness and fairness (redelijkheid en billijkheid) can add to the contract or set aside a contractual rule whose application would be unacceptable (Article 6:248(1) and (2) Dutch Civil Code). Our team also advises on Dutch Distribution Law.

Whether parties can exclude the Haviltex standard (named after a 1981 Supreme Court judgment) in their contract, leaving only the text as the basis for interpretation, has long been debated. In the 2023 case, the Supreme Court did not have to decide that question. The appeal did not complain that the court of appeal had interpreted the parties’ interpretation clause by the wrong standard or in an incomprehensible way (para. 3.2.2). This article looks at what can and cannot be inferred from the decision.

What Does the Haviltex Criterion Entail?

In its Haviltex judgment of 13 March 1981 (ECLI:NL:HR:1981:AG4158), the Supreme Court held that how a written contract regulates the parties’ relationship, and whether it leaves a gap that must be filled, cannot be answered on the basis of a purely linguistic reading of its provisions alone. What matters is the meaning the parties could reasonably give to the provisions in the circumstances and what they could reasonably expect from each other. The social circles to which the parties belong and the legal knowledge that can be expected of them may also be relevant.

Context therefore matters, especially where a contract is the result of negotiations: e-mails, draft agreements and other exchanges can show what the parties could reasonably expect. The plausibility of the legal consequences of one reading or another is also a factor that must, where relevant, be taken into account. According to the Supreme Court, this applies to general terms and conditions as well (Hoge Raad 29 September 2023, ECLI:NL:HR:2023:1354, para. 3.2).

What was the Dutch court case about?

The case concerned the interpretation of family law agreements. The arrangements were set out in a settlement agreement in September 2009. The settlement agreement contained the following provisions:

‘In the execution of this agreement, the literal text of this agreement, notwithstanding the Haviltex criterion, shall prevail over any intention of the parties, so that in the event of any dispute arising in any way from this agreement, even if only one of the parties considers that a dispute exists, the competent court shall interpret and apply the provisions contained in this agreement solely on a literal basis.

and:

“Spousal maintenance shall cease on the date on which the wife reaches retirement age, i.e. on 24 May 2021”.

The date in this provision was disputed. The wife turned 65 on 25 May 2022, not on 24 May 2021, and she would become entitled to the Dutch state pension (AOW) on 25 May 2024. Her guardian (curator) asked the court to extend the maintenance until 25 May 2024 or, alternatively, until 25 May 2022 (para. 2.2).

How did the Dutch judges rule?

The district court (rechtbank) granted the alternative request. It held that the words “that is to say” linked the date to the retirement age and that the date was a slip of the pen. It ordered the husband to pay maintenance until 24 May 2022 (paras 2.3 and 2.4).

The court of appeal (“gerechtshof”) took a different view. It ruled:

‘5.5.1. The Court of Appeal first noted that it was not disputed by the parties that, based on the provisions in the preamble to the settlement agreement concluded between them in September 2009, they had excluded an interpretation of the provisions of the agreement by the Haviltex criterion and that, in the event of a dispute between the parties, the court should interpret the relevant provision of the settlement agreement only grammatically. However, there is a dispute between the parties as to what should be the result of the grammatical interpretation of the provisions of Article 1.7. Concerning the end date of the spousal maintenance to be paid by the husband to the wife.

5.5.2. based on the content of Article 1.7. of the settlement agreement, the court thinks that the only fact in this Article that cannot be interpreted in two ways is the end date of the spousal maintenance to be paid by the husband to the wife. The term ‘retirement age’ is, in the Court’s view, open to multiple interpretations, which is not permissible in view of the exclusion of the Haviltex criterion.‘

On that basis, the court of appeal held that the maintenance obligation had ended on 24 May 2021. The Supreme Court (Hoge Raad) dismissed the appeal, so that decision stands. The appeal argued that, even under a grammatical or objective interpretation, the plausibility of the legal consequences of a reading must be considered. The Supreme Court held that this argument overlooked the fact that the parties had agreed their own, contractual standard of interpretation, and that the appeal did not complain that the court of appeal had interpreted that standard incorrectly or incomprehensibly (para. 3.2.2):

“To the extent that the plea complains that the Court of Appeal, by this judgment, disregarded the grammatical or objective standard of interpretation as referred to in the case law of the Supreme Court, by disregarding the plausibility of the legal consequences of the interpretation of Article 1.7 given by the Court of Appeal, it ignores the fact that the preamble to the Settlement Agreement contains the aforementioned own, contractual standard of interpretation. The plea does not criticize the Court of Appeal for interpreting this contractual standard incorrectly or incomprehensibly.“

Advocate General Valk had advised the Supreme Court to set the decision aside. In his view, the court of appeal had not adequately explained why the parties’ own clause meant that the wife’s arguments about what had been assumed during the negotiations could play no role (Opinion of 12 May 2023, ECLI:NL:PHR:2023:481, paras 3.14-3.16). The Supreme Court did not follow that advice.

Does the High Court’s Decision Redefine Contractual Interpretation?

The decision does not state in general terms that the Haviltex standard can be excluded. The Supreme Court accepted that the contract contained the parties’ own standard of interpretation and reviewed the case on that basis, because the appeal did not challenge how the court of appeal had read that standard (para. 3.2.2). According to A-G Valk, the prevailing view in literature and case law appears to be that parties can validly agree on the standard by which their contract is to be interpreted, including ‘grammatical’ interpretation (Opinion, para. 3.4).

The case shows the risk of such a clause: the court of appeal read it as excluding every term that is open to more than one meaning, such as “retirement age”, and relied only on the date (para. 3.2.2). A literal-interpretation clause can therefore lead to an outcome that one of the parties did not expect.

How is the Haviltex standard applied in practice?

The Supreme Court has continued to apply the Haviltex standard since August 2023. On 29 September 2023 it held that, in interpreting a written contract, all circumstances of the case are decisive, assessed by standards of reasonableness and fairness, so the plausibility of the legal consequences of one reading or another must where relevant be taken into account; this applies to general terms and conditions too. It set aside the court of appeal’s judgment and referred the case to another court of appeal (ECLI:NL:HR:2023:1354, para. 3.2). On 23 January 2026 it dismissed an appeal against a judgment holding that a district heating supplier’s supply contract, including its general terms, gave no basis for charging a periodic connection fee (ECLI:NL:HR:2026:94). Neither decision concerned a literal-interpretation clause like the one in the 2023 case.

How do you draft a contract that leaves no room for doubt?

Parties who want their contract to be read literally can consider the following steps:

Incorporate a clause that either mirrors the one described in the August 25, 2023, ruling or explicitly adopts a ‘literal’ interpretation standpoint.
Define what ‘grammatical’ or ‘literal’ interpretation means, and state whether context, the plausibility of the legal consequences or obvious drafting errors may still be taken into account.
Include an entire agreement clause so that prior arrangements do not form part of the contract. Bear in mind that this clause, too, will be interpreted.
Contact a Dutch contract lawyer

Even then, according to A-G Valk, a court must first determine, under the normal Haviltex standard, what the parties meant by their interpretation clause (Opinion, para. 3.10); the Supreme Court did not decide this point. And reasonableness and fairness can still set aside a contractual rule where applying it would be unacceptable in the circumstances (Article 6:248(2) Dutch Civil Code).

What can businesses conclude from the 2023 decision?

The absence of a definitive judgment from the Dutch Supreme Court regarding the contractual exclusion of the Haviltex standard does not render the decision irrelevant.

The decision is consistent with the prevailing view, as described by A-G Valk, that parties can agree on the standard by which their contract is to be interpreted. Neither court decided this expressly: before the court of appeal it was undisputed between the parties that they had excluded the Haviltex standard (court of appeal, para. 5.5.1, quoted in para. 2.4 of the Supreme Court’s decision).

This suggests, albeit cautiously, that parties are free to determine the standard of interpretation within their contract. Two caveats apply. First, according to A-G Valk, choosing a standard of interpretation does not exclude the restrictive effect of reasonableness and fairness (Article 6:248(2) Dutch Civil Code), which cannot be excluded. Parties can limit the room for the supplementary effect (Article 6:248(1)) by covering as many issues as possible in their contract, but in his view it is plausible that the supplementary effect as such cannot be excluded (Opinion, para. 3.6 and footnote). Second, according to A-G Valk, the meaning of an agreed interpretation clause must itself first be determined under the normal Haviltex standard (para. 3.10). The Supreme Court did not address these points.

In summary, a clause excluding the Haviltex standard can be effective, but it is not certain how a court will read it. Clear and consistent drafting is essential to avoid an outcome that neither party intended.

Frequently asked questions about contract interpretation under Dutch law

What is the Haviltex criterion?

It is the Dutch standard for interpreting contracts. The decisive question is what meaning the parties could reasonably give to a provision in the circumstances and what they could reasonably expect from each other; a purely linguistic reading is not enough (Hoge Raad 13 March 1981, ECLI:NL:HR:1981:AG4158). The social circles of the parties and their expected legal knowledge may also be relevant.

Can the Haviltex norm be excluded in a Dutch contract?

The prevailing view, according to A-G Valk, is that parties can agree on their own standard of interpretation, including ‘grammatical’ interpretation. The Supreme Court did not decide this expressly in 2023, but reviewed the case on the basis of the parties’ clause (ECLI:NL:HR:2023:1131, para. 3.2.2). Reasonableness and fairness can still set aside a contractual rule (Article 6:248(2) Dutch Civil Code).

What did the Dutch Supreme Court decide on 25 August 2023?

It dismissed an appeal against a court of appeal decision that, under a clause requiring purely grammatical interpretation, spousal maintenance ended on the date stated in the agreement (24 May 2021). The appeal did not complain that the court of appeal had interpreted the clause incorrectly or incomprehensibly (ECLI:NL:HR:2023:1131, para. 3.2.2).

What role does reasonableness and fairness play in Dutch contract law?

Under Article 6:248(1) Dutch Civil Code, a contract has not only the legal effects agreed by the parties, but also those that, given the nature of the contract, follow from the law, custom or reasonableness and fairness (redelijkheid en billijkheid). Reasonableness and fairness can also set aside a contractual rule to the extent that applying it would be unacceptable by standards of reasonableness and fairness in the circumstances (Article 6:248(2)).

Are general terms and conditions interpreted under the Haviltex standard?

All relevant circumstances must be taken into account in interpreting general terms too, including the plausibility of the legal consequences of one reading or another (Hoge Raad 29 September 2023, ECLI:NL:HR:2023:1354, para. 3.2).