Duty to mitigate under Dutch law: what must you do?

Published on 12 November 2026

The duty to mitigate under Dutch law requires a party claiming damages to take the steps that can reasonably be expected of it to limit its loss. If it does not, a court can reduce the compensation under Article 6:101 of the Civil Code. As a Dutch contract lawyer at MAAK Advocaten in Amsterdam, I advise foreign companies on which steps to take before they claim or defend.

This article is for companies abroad whose Dutch counterparty has failed to perform, or that face a damages claim from one. It covers what a Dutch court expects of you, who pays for the steps you take and who must prove a failure to limit the loss. It also explains when the Vienna Sales Convention (CISG) applies instead. For the wider framework, see our overview of commercial contracts in the Netherlands and our page on compensation for breach of contract by suppliers under Dutch law.

Is there a duty to mitigate under Dutch law?

Yes, in effect. No article carries that name, but the Supreme Court requires an injured party to limit its loss as far as can reasonably be required. A failure can reduce the compensation (Supreme Court 5 December 2014, ECLI:NL:HR:2014:3532, para. 3.8.2).

The reduction runs through Article 6:101(1) Dutch Civil Code. If the loss is partly the result of a circumstance attributable to the injured party, the compensation is reduced. The loss is divided between both sides in proportion to how much each side’s circumstances contributed. A different division applies if fairness requires it, because of the different seriousness of the faults or other circumstances. The obligation can even lapse or remain in full. The claim itself rests on Article 6:74 Dutch Civil Code: a failure to perform obliges the debtor to compensate the loss, unless it cannot be attributed to the debtor.

The term “duty to mitigate” is familiar from English and US contract law. Dutch law has no article with that name. What it requires of you follows from the Supreme Court’s rule and the reduction in Article 6:101, and a court decides it by weighing the circumstances of the case.

What should you do when your Dutch counterparty stops performing?

Keep your business running and your decisions on record. Take the steps that limit the loss, and write down why you chose them. Reasonable costs of preventing or limiting loss are themselves recoverable loss (Article 6:96(2)(a) Dutch Civil Code).

What you can do yourself, before anything else:

• read your contract and find out whether the CISG applies (see below);
• check what alternatives exist: other suppliers or buyers, resale, moving production around;
• tell your counterparty in writing what you plan to do and what it will cost;
• keep the quotes, prices and emails that show which alternatives you considered.

My first step is not legal but practical: keep your production running. The legal side runs alongside. What counts as reasonable depends on your contract, your market and what your counterparty has done, so I assess that per file.

Which measures can a Dutch court expect from you?

Measures that are reasonable in the circumstances, and no more. A court looks at what was available, what it would cost and what the other side did. It does not expect steps that are costly or unrealistic.

The Supreme Court has held that a landlord can in some circumstances be required to let the premises to a third party on less favourable terms. That landlord’s counterparty refused to pay the agreed rent, arguing that no lease had been concluded (Supreme Court 26 September 2003, ECLI:NL:HR:2003:AF9414, para. 5.8). A recent appeal shows how far the expectation goes for a seller:

Situation	What the court held	Source
Landlord whose counterparty denies the lease and refuses the rent	Can in some circumstances be required to re-let on less favourable terms	Supreme Court 2003, para. 5.8
Seller of goods the buyer wrongly refused to take: talks with other buyers, production and shipment stopped	Counted as limiting the loss	Court of Appeal ‘s-Hertogenbosch 2025, para. 12.48
Same seller: new sales channels or repackaging at extra cost	Could not be required in the circumstances	Court of Appeal ‘s-Hertogenbosch 2025, para. 12.50
Same seller: storage after the shelf life expired, buyer not informed	Storage costs from a set date shared equally	Court of Appeal ‘s-Hertogenbosch 2025, para. 12.53

In that appeal, Court of Appeal ‘s-Hertogenbosch 30 September 2025, ECLI:NL:GHSHE:2025:2680, I represented the seller. The court accepted the seller’s talks with other buyers and the stop on production and shipment as limiting the loss. It did not expect new sales channels or repackaging at extra cost. The court looked at the circumstances: a one-off transaction, no existing sales network or channel for these goods, and extra costs on top of the high costs the buyer’s failure had already caused (para. 12.50). The stop on production and shipment and the talks with other buyers were treated as limiting the loss (para. 12.48). The buyer’s argument succeeded only on the storage costs, described in the next section.

Is your Dutch counterparty failing to perform, or relying on your own conduct to cut your claim? Send me the contract and the correspondence through our page for a Dutch contract lawyer. I will tell you which steps a Dutch court is likely to see as reasonable.

Who pays for the costs of limiting your loss?

The liable party, as long as the costs were reasonable. Costs of preventing or limiting loss that could be expected as a result of the event count as financial loss (Article 6:96(2)(a) Dutch Civil Code).

Like any loss, those costs must also be attributable to the event on which liability rests (Article 6:98 Dutch Civil Code). The 2025 appeal shows where cost sharing starts. The seller kept the unsold goods in storage after their shelf life expired and did not tell the buyer what that cost. The court held that the seller should have enabled the buyer to make its own assessment. It divided the storage costs from a set date equally between the parties (para. 12.53). The court did not reduce the destruction costs: it held that the seller could not be required to destroy the goods earlier and bear the lower, but still considerable, costs of 2022 itself (para. 12.52).

My advice: tell your counterparty in writing what you propose to do and what it costs, before the costs build up. Give it the chance to respond. That costs you a short email and takes away an argument.

Who has to raise the argument that you failed to limit the loss, and on what basis?

The party sued for damages must raise it. A court may not reduce damages for the injured party’s own fault of its own motion. It needs a sufficiently reasoned argument from the defendant (Supreme Court 26 September 2003, ECLI:NL:HR:2003:AF9414, para. 5.2).

The court may raise the question itself. It must then give the parties the chance to debate it. It must not decide the point if they do not want that debate. For the proof, the general rule applies: a party relying on the legal consequences of facts it alleges must prove them (Article 150 Dutch Code of Civil Procedure). In the 2025 appeal the court did not decide who bears the burden. It held that the buyer had to support its position in more detail and had supplied no data, while the seller had explained its choices (paras. 12.50 and 12.54). The buyer had argued that the seller’s transport and storage arrangements were inefficient and unnecessary.

As claimant’s counsel, I work out the claim from the start in two versions, with and without this defence. As defendant’s counsel, I put the facts in the first written submission, with a calculation of what would have remained had the other side acted reasonably. Both give you a position to negotiate from.

Does the CISG change the duty to mitigate?

Yes, for a sale of goods between parties in different contracting states, unless they excluded the convention. Article 77 CISG then governs the duty to limit the loss, not Article 6:101 of the Civil Code.

The convention applies to contracts for the sale of goods between parties established in different contracting states (Article 1(1)(a) CISG). The parties may exclude it (Article 6 CISG). The Netherlands, Germany and the United States are all contracting states (UNCITRAL status of the CISG). Article 77 CISG requires a party relying on a breach to take measures that are reasonable in the circumstances to limit the loss, including loss of profit. If it fails, the party in breach can claim a reduction by the amount by which the loss should have been limited. After avoidance of the contract, Article 75 CISG applies. A buyer who bought replacement goods, or a seller who resold the goods, in a reasonable manner and within a reasonable time after avoidance can claim the difference between the contract price and the replacement or resale price.

Question	Article 6:101 Dutch Civil Code	Article 77 CISG
When it applies	Dutch-law claims for damages	International sale of goods between parties in different contracting states, unless excluded
What triggers it	A circumstance attributable to the injured party contributed to the loss	The party relying on the breach did not take reasonable measures to limit the loss
Consequence	Loss divided in proportion to each side’s contribution	Damages reduced by the amount by which the loss should have been limited
Fairness correction	Yes, in the text of Article 6:101(1)	None in the text of Article 77

Whether your choice-of-law clause leaves the CISG in place or excludes it depends on its wording. Our pages on the UN Convention on Contracts for the International Sale of Goods and on excluding the CISG in general terms and conditions explain the starting point.

Practical example: a replacement purchase after a failed delivery

A hypothetical illustration: a US manufacturer buys machine parts from a Dutch supplier under a contract governed by Dutch law that does not exclude the CISG. The supplier announces that it cannot deliver. Another supplier could deliver within three weeks at a higher price. The manufacturer waits two months for the original delivery instead, and its production line stops in the meantime.

When the manufacturer claims, the supplier will say that it should have bought elsewhere. Whether that was reasonable depends on what the contract allows, what was available at what price, and what the supplier said at the time. I would first secure the documents and check whether the CISG applies. Then I would assess whether avoidance and a replacement purchase fit the facts, and only after that decide how to frame the claim.

When should you instruct a Dutch lawyer?

Before you take a costly step to limit the loss, and before you respond to a counterparty who says you should have done more. Both moments shape what a court later accepts as reasonable.

Once a dispute starts, your correspondence becomes part of the circumstances a court weighs. If the case goes to a Dutch court, you must be represented by a Dutch lawyer, except in cases before the cantonal judge (kantonrechter), where parties may appear in person (Article 79(1) and (2) Dutch Code of Civil Procedure). For the wider rules on claiming loss, see our page on claims for damages under Dutch law.

How does MAAK Advocaten handle duty to mitigate questions?

For foreign companies with a Dutch counterparty, we work in four steps:

1. We establish the facts, read the contract and check whether the CISG applies.
2. We advise which measures are reasonable and what you should record.
3. We write to the counterparty and negotiate.
4. Without a solution, we act in summary proceedings or on the merits, at first instance and on appeal.

We work in English with your legal department or your own counsel.

Frequently asked questions about the duty to mitigate under Dutch law

How much can a Dutch court reduce damages for failure to limit the loss?

There is no fixed percentage. Under Article 6:101(1) Dutch Civil Code the court divides the loss in proportion to how much each side’s circumstances contributed. It can depart from that if fairness requires, up to letting the obligation lapse or remain in full.

Do I have to buy replacement goods after a failed delivery?

Under Dutch law you must take the measures that can reasonably be required of you. Whether a replacement purchase is one depends on availability, price and your contract. Under the CISG, Article 75 gives you the price difference after avoidance if you bought in a reasonable manner and time.

What if both sides could have limited the loss?

If both sides could have limited the loss, it depends on the circumstances whether, and how far, the liable party can hold the injured party’s failure against it. The Supreme Court adds that it matters if the liable party’s own conduct put the injured party in that situation (ECLI:NL:HR:2014:3532, para. 3.8.2).

Is Article 6:109 the Dutch rule on mitigation of damages?

No. Article 6:109 Dutch Civil Code lets a court reduce a statutory obligation to pay damages if full compensation would clearly be unacceptable. It looks at the nature of the liability, the relationship and the parties’ financial capacity. A contractual penalty follows Article 6:94: see mitigating a contractual penalty under Dutch law.

When should I have a Dutch lawyer look at a failure to limit the loss?

Before you take a costly step, and before you answer the other side’s argument that you should have done more. Whether a step is reasonable needs a legal assessment of the contract and the facts. At MAAK Advocaten in Amsterdam we make that assessment and act at first instance and on appeal.

Primary sources

• Article 6:74 Dutch Civil Code: damages for failure to perform
• Article 6:94 Dutch Civil Code: moderation of a contractual penalty
• Article 6:96 Dutch Civil Code: financial loss and the costs of limiting it
• Article 6:98 Dutch Civil Code: attribution of loss
• Article 6:101 Dutch Civil Code: contributory fault of the injured party
• Article 6:109 Dutch Civil Code: judicial moderation of a statutory obligation to pay damages
• Article 79 Dutch Code of Civil Procedure: representation by a lawyer
• Article 150 Dutch Code of Civil Procedure: burden of proof
• Article 1 CISG, Article 6, Article 75 and Article 77: scope, exclusion, replacement purchase and the duty to limit the loss
• UNCITRAL, status of the CISG: contracting states
• Supreme Court 26 September 2003, ECLI:NL:HR:2003:AF9414: contributory fault only on a reasoned argument; re-letting on less favourable terms
• Supreme Court 5 December 2014, ECLI:NL:HR:2014:3532: the injured party’s duty to limit the loss
• Court of Appeal ‘s-Hertogenbosch 30 September 2025, ECLI:NL:GHSHE:2025:2680: measures expected from a seller; storage costs

Facing a Dutch counterparty that has stopped performing, or one that says you should have done more? Put your contract and the correspondence to me before you take a costly step: call +31 20 210 31 38 or send your question through our page for a Dutch contract lawyer.