Excluding Modification of a Purchase Agreement Under Dutch Law

Published on 25 November 2025 · Last updated 28 October 2026

Under Dutch law, parties to a purchase agreement can in principle exclude annulment for mistake (dwaling, Article 6:228 Dutch Civil Code) and the court’s power to modify the contract instead (Article 6:230). In share and asset deals, buyers and sellers often do so in favour of a warranty regime. Have the clause reviewed before signing: an exclusion that covers only Article 6:228 may leave room for a price adjustment.

This page is for foreign buyers and sellers of a Dutch company, business or other asset who negotiate a purchase agreement under Dutch law. You will read what mistake means, why parties exclude it, how to word the exclusion, where its limits lie and what a buyer can still do after closing. For the general rules on buying, see our page on purchase agreements under Dutch law.

What is mistake under Dutch contract law?

A contract concluded under the influence of mistake, which would not have been concluded with a correct view of the facts, is voidable in three situations (Article 6:228(1) DCC). The mistake must be caused by information from the other party, by its failure to inform, or by a shared incorrect assumption.

Mistake cannot be based on a purely future circumstance, or on a mistake that should remain for the account of the mistaken party given the nature of the contract, generally accepted views or the circumstances (Article 6:228(2)). In a purchase, the question whether the seller should have informed the buyer is closely linked to the buyer’s own duty to investigate; see our page on the duty of disclosure in the Netherlands.

What is the difference between annulment and modification?

Annulment undoes the contract with retroactive effect (Article 3:53 DCC). Modification keeps the contract but changes its effects, for example by lowering the price, so that the disadvantage caused by the mistake is removed (Article 6:230 DCC).

Article 6:230 works in two ways. The right to annul lapses if the other party offers, in time, a change that adequately removes the disadvantage (paragraph 1). And at the request of either party, the court may modify the effects of the contract instead of annulling it (paragraph 2). In a business sale, modification is often the more realistic remedy: few buyers want to return a company they have run for a year.

Why do parties exclude mistake in a share or asset purchase?

Parties exclude mistake because they want a closed system of remedies. The seller gives warranties, the buyer checks the target in due diligence, and claims run only through the warranty clause, with its thresholds, caps and notice periods. A mistake claim outside that system would bypass the agreed limits.

The rules on mistake are not mandatory between businesses, so they can be excluded. Without an exclusion, a buyer who discovers after closing that, for example, important customers had already terminated their contracts could try to annul the purchase or ask for a lower price, irrespective of the caps in the warranty clause.

How should you word an exclusion of mistake?

Exclude annulment and modification expressly, and name both articles. A clause that only excludes the right to annul for mistake does not necessarily exclude the court’s power to modify the contract under Article 6:230(2) DCC; a court will interpret the clause in the light of all circumstances.

A workable clause has four elements:

An express agreement that neither party will annul the agreement on the ground of mistake (Article 6:228 DCC).
An express exclusion of modification of the effects of the agreement under Article 6:230 DCC, both at the request of a party and by the court.
A statement that the warranties and the related remedies are the buyer’s only remedies for incorrect or incomplete information.
A carve-out for fraud and wilful concealment, which reflects the limit that reasonableness and fairness set in any event (Article 6:248(2) DCC).

If your agreement is governed by Dutch law but drafted in English, use the Dutch terms in brackets. Words such as “rescission” or “misrepresentation” come from common law and do not match the Dutch concepts exactly. Read more on choosing Dutch law in international contracts.

Can a court still adjust the price despite an exclusion?

Only within limits. A contractual rule does not apply insofar as that would be unacceptable by standards of reasonableness and fairness in the circumstances (Article 6:248(2) DCC). The word “unacceptable” sets a high threshold, certainly between professional parties who were advised, but in exceptional cases it can set an exclusion clause aside.

The Supreme Court’s Maetis judgment of 6 December 2019 (ECLI:NL:HR:2019:1910) shows how far the court’s power under Article 6:230(2) goes when mistake has not been excluded. A buyer had purchased the shares in two companies for a price set at 5.47 times their 2008 EBIT. The Court of Appeal found that the buyer had contracted under mistake about customer terminations, but rejected the requested price reduction, partly because the price mechanism in the contract stood in the way.

The Supreme Court disagreed. Article 6:230(2) gives the court the power to amend the contract itself, including its price clause; and once mistake and disadvantage are established, the court must determine the size of that disadvantage, if necessary by estimate (r.o. 3.1.2 and 3.2). For sellers, the lesson is that a price formula alone is no protection; an express exclusion of Article 6:230 is the clearest way to limit this route, subject to Article 6:248(2) DCC.

Are you negotiating the sale or purchase of a Dutch business? Have a Dutch contract lawyer review the warranty and exclusion clauses before signing.

Do fraud and other defects of consent fall under the exclusion?

Usually not. Fraud (bedrog) is a separate ground for annulment: a party who induces the other to contract by an intentionally incorrect statement or by deliberately withholding a fact it had to disclose (Article 3:44(3) DCC). A clause that excludes “mistake” does not cover fraud by its wording.

Even a clause that does cover fraud will rarely protect a seller who deliberately misled the buyer, because relying on it would generally be unacceptable under Article 6:248(2) DCC. Threat and abuse of circumstances are the other defects of consent (Article 3:44(2) and (4)). For claims after deliberate deception, see our page on fraud in a purchase under Dutch law.

How does a buyer invoke mistake, and within what period?

Annulment takes place by an out-of-court declaration to the other party or by a court ruling (Article 3:49 DCC). The claim to annul for mistake becomes time-barred three years after the mistake was discovered (Article 3:52(1)(c) DCC).

For contracts relating to registered property, such as real estate, an out-of-court declaration only works if all parties accept the annulment (Article 3:50(2) DCC); otherwise you need a court. Mistake can always be invoked as a defence against a claim based on the contract, even after the three years (Article 3:51(3) DCC).

Step	What to do	Source
1	Document what you assumed, what was said and what turned out to be different	Burden of proof, Article 150 DCCP
2	Check the purchase agreement for exclusions, warranties and notice periods	Contract
3	Notify the seller in writing; state the facts and the remedy you seek	Article 3:49 DCC
4	Consider a claim for modification (price reduction) as an alternative to annulment	Article 6:230 DCC
5	Start proceedings in time	Article 3:52(1)(c) DCC: three years

What should a seller do to limit the risk?

A seller limits the risk by disclosing fully and by documenting that disclosure. Information the buyer received in a data room or disclosure letter can hardly support a later claim that the seller failed to inform it (Article 6:228(1)(b) DCC).

Keep an index of the data room, have the buyer confirm which documents it received, and attach a disclosure letter to the agreement. Combine that with the express exclusion of Articles 6:228 and 6:230 and a clear warranty clause with caps and notice periods. Sellers who know of a problem should disclose it: deliberate silence about a fact that should have been disclosed is fraud, against which no exclusion is reliable (Article 3:44(3) DCC).

Want to know where your transaction stands? Our contract lawyers in the Netherlands review purchase agreements for foreign buyers and sellers. More on the general framework is on our Dutch contract law page.

Frequently asked questions about excluding mistake

Can mistake be excluded in a Dutch purchase agreement?

Yes. Between businesses the rules on mistake in Article 6:228 DCC are not mandatory and can be excluded. Exclude modification under Article 6:230 DCC expressly as well, and keep a carve-out for fraud.

Does excluding annulment also exclude a price adjustment?

Not necessarily. Article 6:230(2) DCC gives the court a separate power to modify the contract. Exclude that power expressly if the warranty clause is meant to be the only remedy.

What did the Supreme Court decide in Maetis (2019)?

That the court may amend the contract, including its price clause, under Article 6:230(2) DCC, and must determine the buyer’s disadvantage, if necessary by estimate (ECLI:NL:HR:2019:1910).

How long does a buyer have to invoke mistake?

A claim to annul becomes time-barred three years after the mistake was discovered (Article 3:52(1)(c) DCC). As a defence against a claim under the contract, mistake can be invoked at any time (Article 3:51(3)).

Does an exclusion of mistake protect a seller who lied?

Rarely. Fraud is a separate ground under Article 3:44(3) DCC, and relying on an exclusion after deliberate deception will usually be unacceptable under Article 6:248(2) DCC.

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. Legal position checked on 28 October 2026.