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Excluding or limiting liability in general terms and conditions is in principle allowed between businesses under Dutch law. Whether the clause holds depends on three questions: did the terms become part of the contract, do the Dutch rules on general terms apply (only if both businesses are established in the Netherlands, Article 6:247 Dutch Civil Code), and is relying on the clause acceptable in the circumstances (Article 6:248(2)).
This page is for foreign companies that buy from or sell to a Dutch business and want to know whether a liability clause in their own terms, or in the terms of the Dutch party, will stand up in a dispute. It covers exclusions and caps in general terms. The specific question of indirect or consequential loss is dealt with on our page on exclusion of liability for indirect damage in the Netherlands, and a short introduction to the topic is on limitation of liability under Dutch law.
What is an exoneration clause in Dutch general terms and conditions?
An exoneration clause (exoneratiebeding) excludes or limits a party’s obligation to pay damages. In general terms it usually takes the form of an exclusion of certain types of loss, a cap on the amount, or a short period within which claims must be made.
Common versions in Dutch business terms are:
- an exclusion of indirect or consequential loss, such as lost profit or business interruption;
- a cap, for example the invoice value of the order or the amount the liability insurer pays out;
- a requirement that claims are notified or brought within a set period;
- an exclusion of liability for subcontractors and other auxiliaries.
General terms are clauses drafted to be included in a number of contracts, except clauses that set out the core of the performance, as far as these are clear and understandable (Article 6:231(a)). A liability clause drafted specifically for this one contract is not part of general terms. It is then tested only under general contract law, mainly Article 6:248(2).
When is a liability clause in general terms part of the contract?
When the other party has accepted the general terms, usually through a reference made before or when the contract was concluded (Article 6:217 and Article 6:231(c)). Where the Dutch rules on general terms apply, the other party is bound even if it did not know the content (Article 6:232). Between businesses that are not both established in the Netherlands, Articles 6:231 and 6:232 do not apply (Article 6:247(2)), and the general rules on offer and acceptance decide (Article 6:217).
Three points often decide a dispute about a liability clause before its content is even discussed:
- Timing. A reference that first appears on the invoice or delivery note comes after the contract was concluded and is as a rule too late.
- Two sets of terms. If offer and acceptance refer to different general terms, the second reference has no effect unless it expressly rejects the first terms (Article 6:225(3)). See our page on the battle of forms under Dutch law.
- International sale of goods. If the CISG governs the contract, whether a party consented to general terms and the liability clauses in them is decided under the CISG itself, not under national law (HR 28 January 2005, ECLI:NL:HR:2005:AR4837, para. 3.3.2).
Where the Dutch rules on general terms apply, the user must also have given the other party a reasonable opportunity to read the terms, usually by handing them over before or at the conclusion of the contract (Article 6:233(b) and Article 6:234). If not, the clauses are voidable, unless Article 6:235 excludes that ground for the other party. More on this on our main page on when general terms and conditions apply under Dutch law.
Do the Dutch rules on general terms apply to your contract?
Only if both businesses are established in the Netherlands. Between businesses that are not both established in the Netherlands, the Dutch rules on general terms (Articles 6:231-6:247 Dutch Civil Code) do not apply, whatever law governs the contract (Article 6:247(2)).
| Situation | Dutch rules on general terms (Articles 6:231-6:247) | How a liability clause is tested |
|---|---|---|
| Both businesses established in the Netherlands | Apply, regardless of the governing law (Article 6:247(1)) | Unreasonably onerous (Article 6:233(a)), unless Article 6:235 excludes that ground; also Article 6:248(2) |
| A foreign business and a Dutch business | Do not apply, regardless of the governing law (Article 6:247(2)) | If Dutch law governs: Article 6:248(2) and Article 3:40 |
| Business and consumer with habitual residence in the Netherlands | Apply, regardless of the governing law (Article 6:247(4)) | Grey list: a clause that releases the user from a statutory obligation to pay damages is presumed unreasonably onerous (Article 6:237(f)) |
A party counts as established in the Netherlands if its principal place of business is there or, where another establishment is to perform the contract, that establishment is in the Netherlands (Article 6:247(3)). A foreign group whose Dutch subsidiary or Dutch branch contracts with Dutch customers is therefore inside the Dutch regime for those contracts, while the same group selling directly from abroad is not.
Which liability can you not exclude under Dutch law?
A business cannot as a rule rely on a liability clause if the damage was caused by its own intent or deliberate recklessness, or that of the persons charged with managing its business. Reliance on the clause is then in general unacceptable by standards of reasonableness and fairness.
That rule comes from case law, not from a statutory list. The Dutch Supreme Court (Hoge Raad) held that an exoneration clause does not apply to the extent that applying it would be unacceptable by standards of reasonableness and fairness, and that this will in general be the case if the damage is due to intent or deliberate recklessness of the debtor or of persons in charge of managing its business (HR 12 December 1997, ECLI:NL:HR:1997:ZC2524). For mistakes of other staff or subcontractors, a clause can in principle still work.
Separately, a clause that by its content or purpose is contrary to good morals or public order is void, and a clause that conflicts with a mandatory statutory provision is void or voidable (Article 3:40 Dutch Civil Code).
How does a Dutch court test a liability clause between businesses?
Through one of two tests. If the Dutch rules on general terms apply, the clause is voidable if it is unreasonably onerous (Article 6:233(a)). In every contract governed by Dutch law, the clause does not apply as far as relying on it would be unacceptable (Article 6:248(2)).
Under Article 6:233(a), the court looks at the nature and the rest of the content of the contract, the way the terms came about, the mutually recognisable interests of the parties and the other circumstances of the case. Some businesses cannot use this ground at all: a legal entity referred to in Article 2:360 that had last published its annual accounts or to which Article 2:403(1) had last been applied, a party where fifty or more persons worked, and a party that itself repeatedly uses the same or almost the same general terms (Article 6:235(1) and (3)). For small businesses, the consumer grey list can play an indirect role, the so-called reflex effect. We explain that on our page on the reflex effect on general terms under Dutch law.
Article 6:248(2) is the test that remains in a cross-border contract governed by Dutch law. It sets a high threshold: the question is not whether the clause is unfair in the abstract, but whether relying on it in the specific circumstances is unacceptable. The cause of the damage, the degree of fault, the relationship between the parties and the way the clause came about all play a role. A cap that leaves the other party without any meaningful claim for a defect that goes to the heart of the contract is more vulnerable than a cap that tracks the value of the order.
What changes if the CISG governs the sale?
The CISG decides whether the general terms became part of the contract, but not whether a liability clause is valid. Validity remains a matter for the national law that governs the contract (Article 4(a) CISG).
For a sale of goods between parties whose places of business are in different contracting states, the CISG applies unless the parties exclude it (Articles 1(1)(a) and 6 CISG). Without a valid clause, damages under the CISG cover the loss suffered, including lost profit, but not more than the loss the breaching party foresaw or ought to have foreseen at the conclusion of the contract as a possible consequence of the breach (Article 74 CISG). A liability clause in general terms therefore still matters, but the route to incorporating it runs through the CISG.
Many sellers exclude the CISG and agree on Dutch law in full. How to do that effectively is explained on our page on excluding the CISG in general terms and conditions.
How do you draft a liability clause that holds up under Dutch law?
Keep the clause specific, proportionate to the contract and consistent with your insurance, and make sure it is actually part of the contract. A clause that tries to exclude everything invites a court to set it aside.
- Define which losses are excluded, such as lost profit or loss of data, rather than using a vague “indirect damage”.
- Choose a cap that relates to the contract, for example the order value or the amount your insurer pays, and add a fallback if the insurer does not pay.
- Make an express exception for intent and deliberate recklessness of your management. The clause will in general not protect you there anyway, and the carve-out makes the rest of the clause more credible.
- Set a claims period that leaves the other party a realistic chance to find the problem.
- With a foreign counterparty, put the main liability terms in the main contract or order confirmation that the other party signs, not only in general terms on your website.
- Send the terms with the offer, in a language the other party understands, and keep proof of it.
Do you want to know whether your liability clause will work with your Dutch customers or suppliers? A Dutch lawyer can review your general terms and conditions and adapt the clause to how you actually contract.
Does Article 6:98 Dutch Civil Code apply to contractual liability?
Yes. Article 6:98 applies to every statutory obligation to pay damages, so to damages for breach of contract as well as to damages for a wrongful act. Only loss that can be attributed to the debtor as a consequence of the event is recoverable.
The provision sits in the part of Book 6 that governs statutory obligations to pay damages (Article 6:95), and the obligation to compensate for a breach of contract is such an obligation (Article 6:74). Under Article 6:98, the court decides whether the loss is so connected with the event that it can be attributed to the debtor, taking into account the nature of the liability and of the loss. A liability clause comes on top of that rule: it can limit the damages further than Article 6:98 already does, within the limits described above.
Frequently asked questions about excluding liability in Dutch general terms
Can you exclude all liability in general terms and conditions under Dutch law?
Not effectively. A clause can exclude a lot between businesses, but reliance on it is in general unacceptable where the damage is due to intent or deliberate recklessness of the user or its management (HR 12 December 1997, ECLI:NL:HR:1997:ZC2524). Between two businesses established in the Netherlands, a far-reaching clause can also be annulled as unreasonably onerous (Article 6:233(a)).
Is a liability cap in Dutch general terms valid against a foreign customer?
Often yes. The Dutch rules on general terms do not apply between businesses that are not both established in the Netherlands (Article 6:247(2)), so the clause is not tested as “unreasonably onerous”. If Dutch law governs, the foreign customer can still argue that relying on the cap is unacceptable under Article 6:248(2).
Is a limitation of liability to the invoice amount valid in the Netherlands?
Such a cap is common and is not unlawful in itself. Whether it holds in a specific case depends on the circumstances, such as the cause of the damage, the degree of fault and the relation between the cap and the value of the contract (Articles 6:233(a) and 6:248(2) Dutch Civil Code).
Does a liability clause in general terms bind a party that never read the terms?
Yes, if that party accepted the general terms. Where the Dutch rules on general terms apply, Article 6:232 provides that the other party is bound even if the user understood or should have understood that it did not know the content. Whether the terms were accepted at all, and on time, is a separate question.
Does the CISG make a liability clause invalid?
No. The CISG does not deal with the validity of contract clauses (Article 4(a) CISG); that question is answered by the national law that governs the contract. The CISG does govern whether the general terms containing the clause became part of the contract.
Primary sources
Dutch statutes are only officially available in Dutch, on wetten.overheid.nl. Judgments can be found on rechtspraak.nl by their ECLI number.
- Dutch Civil Code (Burgerlijk Wetboek) Book 3: Article 3:40
- Dutch Civil Code Book 6: Article 6:74, Article 6:95, Article 6:98, Article 6:217, Article 6:225, Article 6:231, Article 6:232, Article 6:233, Article 6:234, Article 6:235, Article 6:237, Article 6:247 and Article 6:248
- United Nations Convention on Contracts for the International Sale of Goods (CISG): Article 4 and Article 74
- Hoge Raad 12 December 1997, ECLI:NL:HR:1997:ZC2524
- Hoge Raad 28 January 2005, ECLI:NL:HR:2005:AR4837
Is a liability clause blocking your claim, or do you need one that works?
Whether a Dutch supplier relies on its general terms to refuse your claim, or you want to limit your own liability towards Dutch customers, our Dutch law firm can assess the clause and the way it became part of the contract. Read more about our work as a contract lawyer in the Netherlands for international companies.
