Reasonableness and fairness in Dutch law: will terms hold?

Published on 10 November 2026

Reasonableness and fairness under Dutch law (redelijkheid en billijkheid) is the Dutch form of good faith. It can add obligations that are not in the written contract and, in exceptional cases, set a term aside. As a Dutch contract lawyer at MAAK Advocaten in Amsterdam, I advise foreign companies on contracts and disputes that turn on it.

This article is for companies outside the Netherlands with a contract governed by Dutch law: suppliers, distributors, buyers and licensees. For an overview of the code itself, see our guide to the Dutch Civil Code in English.

What does reasonableness and fairness mean in Dutch contract law?

Reasonableness and fairness is an open standard. The creditor and the debtor must behave towards each other in accordance with what reasonableness and fairness require. It applies to every contract governed by Dutch law, whatever the contract itself says.

The rule is in Article 6:2 Dutch Civil Code (DCC). What the standard requires is not fixed in advance. Under Article 3:12 Dutch Civil Code, a court takes into account generally recognised principles of law, the legal convictions current in the Netherlands and the social and personal interests involved in the case.

In practice the standard works in three ways:

Function	What it does	Basis
Interpretation	Shapes what the contract terms mean	Haviltex standard (case law), closely linked to reasonableness and fairness
Supplementing effect	Adds obligations the parties did not write down	Article 6:248(1) DCC
Restrictive effect	Sets a term aside to the extent applying it would be unacceptable	Article 6:248(2) and Article 6:2(2) DCC

How these functions play out depends on the type of contract, the relationship between the parties and what happened between them. That is where most disputes start.

Which obligations can reasonableness and fairness add to your contract?

A Dutch contract has the legal effects the parties agreed, plus those that follow from the law, custom and reasonableness and fairness, given the nature of the contract. The written text is therefore not always the whole contract.

This is the supplementing effect of Article 6:248(1) Dutch Civil Code. Think of a duty to cooperate in performance, or to tell the other side something it clearly needs to know. Whether such a duty exists in your case depends on the nature of the contract and the facts.

For a foreign company, this means that a contract under Dutch law is not only what it says. In disputes I handle, the other side regularly argues that an obligation follows from reasonableness and fairness although the contract is silent. My advice is to close the obvious gaps when you draft or renegotiate, rather than leave them to a Dutch court. The standard already applies during negotiations; see pre-contractual liability in the Netherlands.

When can a Dutch court set aside a contract term?

Only where applying the term would be unacceptable by standards of reasonableness and fairness in the circumstances. A result that is unfair or disappointing is not enough, and Dutch courts apply the test with restraint.

This is the restrictive effect of Article 6:248(2) Dutch Civil Code; Article 6:2(2) applies the same test to rules that apply between the parties under the law or custom. The Dutch Supreme Court has held that a court should in general exercise restraint when it assesses an appeal to reasonableness and fairness, and that there is even less room where a mandatory rule is involved (Dutch Supreme Court 22 June 2012, ECLI:NL:HR:2012:BW5695).

The argument can be aimed at any term, for example an exclusion or limitation clause, a strict deadline or a termination right used at an awkward moment. For some terms, the Civil Code has its own test. A clause in general terms and conditions can be annulled if it is unreasonably onerous (Article 6:233(a) DCC). Between businesses that are not both established in the Netherlands, that rule does not apply at all (Article 6:247(2) DCC), and companies that publish annual accounts or employ 50 or more people cannot rely on it either (Article 6:235(1) DCC). A foreign business then relies mainly on reasonableness and fairness; see forbidden terms in Dutch contracts. At the debtor’s request, a court can also reduce a contractual penalty where fairness clearly requires it (Article 6:94(1) DCC; see reducing a contractual penalty).

Whether your clause survives depends on the type of clause, how it was negotiated, the positions of the parties and the conduct of the party relying on it.

Is the other side relying on reasonableness and fairness against your contract? Send me the contract and the correspondence through our page for a Dutch contract lawyer, and I will tell you where you stand.

How does reasonableness and fairness affect the interpretation of your contract?

A Dutch court does not read a contract on its words alone. It asks what meaning the parties could reasonably give the terms in the circumstances, and what they could reasonably expect of each other.

This is the Haviltex standard (Dutch Supreme Court 13 March 1981, ECLI:NL:HR:1981:AG4158). The court may also consider the social circles the parties belong to and the legal knowledge that can be expected of them. Our page on the interpretation of Dutch contracts explains how the standard works for negotiated commercial contracts.

For you, this means that emails, drafts and what was said at the table can change how a clause is read. That record is evidence, and it is easiest to secure before a dispute starts.

How does Dutch good faith differ from what you may be used to?

If you are used to a system where the written terms are the whole bargain, Dutch law will feel different. A Dutch court tests both the contract and the way a party uses it against reasonableness and fairness.

Articles 6:2 and 6:248 of the Dutch Civil Code apply because Dutch law governs the contract, not because the contract refers to them. Clauses that try to fix the meaning of the text, such as an entire agreement clause, can help. They do not by themselves decide every dispute; much depends on the wording and the facts. Our comparison of Dutch civil law and English contract law sets out the main differences.

Before you accept Dutch law as the governing law, ask how much room you want to leave for an open standard. That choice is easier to make at the drafting stage than in a dispute.

Can reasonableness and fairness change a contract when circumstances change?

Mainly through a separate rule. A Dutch court can amend or dissolve a contract on the ground of unforeseen circumstances if the other party, by standards of reasonableness and fairness, may not expect the contract to remain unchanged.

That rule is Article 6:258(1) Dutch Civil Code, and the court acts on the claim of one of the parties. It does not apply to the extent the circumstances are for the account of the party invoking them, by the nature of the contract or generally accepted views (Article 6:258(2)). Our page on unforeseen circumstances under Dutch law explains the test.

Whether a cost increase, a sanctions regime or a lost supplier qualifies depends largely on what your contract already allocates.

What should you do when the other side invokes reasonableness and fairness?

Do not dismiss the argument and do not concede it. Collect the facts first, then test the claim against the contract and the high threshold of Article 6:248(2) DCC, and choose a commercial response.

What you can do yourself straight away:

• Keep the signed contract, all drafts and the negotiation emails together.
• Write down the chronology of performance and of the dispute.
• Note which term the other side wants to set aside or add, and on what grounds.
• Avoid admissions in emails and calls until your position is clear.

My approach is always the same: facts first, then the contract, then the strategy. A party that reaches for reasonableness and fairness often has a commercial problem behind it. Solving that problem is frequently worth more than winning the legal argument.

Practical example: an exclusion clause under pressure

Suppose a German machine builder sells a production line to a Dutch food processor. The contract, governed by Dutch law, excludes liability for consequential loss. After a breakdown, the buyer claims lost production and argues that relying on the exclusion is unacceptable, because the seller knew of the defect and did not warn.

Whether the clause holds depends on what the seller knew, what was negotiated and how the seller acted after the breakdown (Article 6:248(2) DCC). In a case like this I would first secure the evidence on knowledge and communication, and then choose the route that fits your commercial goal.

When do you need a Dutch lawyer for a good faith dispute?

As soon as reasonableness and fairness may decide whether a term applies or a new obligation exists. That is a legal assessment of facts, negotiation history and case law, and most Dutch court proceedings require a lawyer anyway.

In the Netherlands, parties can litigate in person before the subdistrict court (Article 79(1) Dutch Code of Civil Procedure), and a defendant can do so in summary proceedings (Article 255(1) Dutch Code of Civil Procedure). In all other cases they can only act through a lawyer (Article 79(2)). The moments that matter most are before you sign or renegotiate, when the other side asks to set a term aside, before you suspend or terminate, and when a claim arrives.

How does MAAK Advocaten handle reasonableness and fairness disputes?

We work in four steps, in English, alongside your in-house counsel or your lawyers at home. You know your business and your customer; we take care of the Dutch side.

1. We read the contract, the drafts and the correspondence, and secure any deadlines.
2. We establish the facts that count under reasonableness and fairness.
3. I advise on the route that fits your commercial goal: performance, renegotiation, settlement or proceedings.
4. We negotiate and, where needed, act in summary proceedings or proceedings on the merits, at first instance and on appeal.

Frequently asked questions about reasonableness and fairness in Dutch law

Is reasonableness and fairness the same as good faith?

In substance, yes. The Dutch Civil Code uses the term reasonableness and fairness (redelijkheid en billijkheid) for the standard that other systems call good faith. It governs the relationship between contracting parties under Articles 6:2 and 6:248 of the Dutch Civil Code.

Can reasonableness and fairness override a clear contract term?

Only in exceptional cases. Under Article 6:248(2) of the Dutch Civil Code, a term does not apply to the extent that applying it would be unacceptable by standards of reasonableness and fairness in the circumstances. The Dutch Supreme Court has held that courts should apply this test with restraint (Dutch Supreme Court 22 June 2012, ECLI:NL:HR:2012:BW5695).

Does reasonableness and fairness apply to general terms and conditions?

Yes. It applies to every contract governed by Dutch law, including general terms and conditions. The separate test for unreasonably onerous clauses in Article 6:233(a) of the Dutch Civil Code does not apply between businesses that are not both established in the Netherlands (Article 6:247(2)). A foreign business then relies mainly on Article 6:248(2).

What does a Dutch court consider when it applies reasonableness and fairness?

Article 3:12 of the Dutch Civil Code requires the court to consider generally recognised principles of law, the legal convictions current in the Netherlands and the social and personal interests involved. Under Article 6:248, the nature of the contract and the circumstances of the case also count, including the conduct of both parties.

When should I involve a Dutch lawyer about reasonableness and fairness?

When the other side invokes reasonableness and fairness, or before you rely on it yourself. Whether a term holds depends on facts and case law and needs a legal assessment. At MAAK Advocaten in Amsterdam we advise on these questions and act in Dutch courts at first instance and on appeal.

Primary sources

• Article 3:12 Dutch Civil Code: what reasonableness and fairness require
• Article 6:2 Dutch Civil Code: reasonableness and fairness between creditor and debtor
• Article 6:94 Dutch Civil Code: mitigation of a contractual penalty
• Article 6:233 Dutch Civil Code: unreasonably onerous clauses in general terms and conditions
• Article 6:235 Dutch Civil Code: who cannot rely on Article 6:233
• Article 6:247 Dutch Civil Code: when the rules on general terms and conditions apply in international contracts
• Article 6:248 Dutch Civil Code: supplementing and restrictive effect of reasonableness and fairness
• Article 6:258 Dutch Civil Code: unforeseen circumstances
• Article 79 Dutch Code of Civil Procedure: representation by a lawyer
• Article 255 Dutch Code of Civil Procedure: appearing in person in summary proceedings
• Dutch Supreme Court 13 March 1981, ECLI:NL:HR:1981:AG4158 (Haviltex): interpretation of contracts
• Dutch Supreme Court 22 June 2012, ECLI:NL:HR:2012:BW5695: restraint in applying the restrictive effect

Does your Dutch contract, or your dispute, turn on reasonableness and fairness? Put your question to me: call +31 20 210 31 38 or send it through our page for a Dutch contract lawyer.