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Dutch Contract Law

What Are Unforeseen Circumstances Under Dutch Law?

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Unforeseen circumstances (onvoorziene omstandigheden) are circumstances that lay in the future when a contract was concluded and that the contract does not account for. If the other party, by standards of reasonableness and fairness, may not expect the contract to continue unchanged, the court can, at the request of either party, amend the contract or terminate it in whole or in part (Article 6:258 Dutch Civil Code).

The starting point of Dutch contract law is that agreements are binding (pacta sunt servanda). Article 6:258 DCC is an exception, and courts must apply it with restraint: reasonableness and fairness require above all that parties keep their word, and allow a departure only in highly exceptional cases (Supreme Court (Hoge Raad) 20 February 1998, ECLI:NL:HR:1998:ZC2587, r.o. 4.3.2). Circumstances that, by the nature of the contract or generally accepted views, are at the risk of the party invoking them do not count (Article 6:258(2) DCC).

You cannot exclude Article 6:258 DCC by contract (Article 6:250 DCC). Either party can invoke it, and a person to whom a right or obligation under the contract has passed is treated as a party (Article 6:258(3) DCC). See also our pages on price agreements with suppliers and distributors, the third party beneficiary clause under Dutch law and the right of retention under Dutch law.

A circumstance is “unforeseen” within the meaning of Article 6:258 DCC if it still lay in the future when the contract was concluded and the contract has not accounted for it (in Dutch: it is not verdisconteerd). Whether the contract has accounted for it must be established by interpreting the contract (Supreme Court 24 December 2021, ECLI:NL:HR:2021:1974, r.o. 3.2.3). The question is therefore not only whether the circumstance was foreseeable, but whether the contract, properly interpreted, covers it.

If the test is met, the court has more options than simply ending the contract. It can amend the consequences of the contract or terminate it in whole or in part, with retroactive effect if necessary (Article 6:258(1) DCC), and it can attach conditions to its decision (Article 6:260(1) DCC). The Supreme Court requires restraint: the requirement that the other party may not expect the contract to continue unchanged will not easily be met (ECLI:NL:HR:1998:ZC2587, r.o. 4.3.2).

What Conditions Must You Fulfill Under Netherlands Law?

In short, Article 6:258 DCC requires:

  • A future circumstance: the circumstance still lay in the future when the contract was concluded.
  • Not accounted for: the contract, properly interpreted, did not provide for it (ECLI:NL:HR:2021:1974, r.o. 3.2.3).
  • The reasonableness test: the circumstance is such that the other party, by standards of reasonableness and fairness, may not expect the contract to continue unchanged (Article 6:258(1) DCC).
  • Not your own risk: the circumstance is not, by the nature of the contract or generally accepted views (in het verkeer geldende opvattingen), at the risk of the party invoking it (Article 6:258(2) DCC).

Key point: the test is strict. A contract must in principle be performed, even if this turns out to be disadvantageous for one of the parties. Amendment or termination is only possible in exceptional cases (ECLI:NL:HR:1998:ZC2587, r.o. 4.3.2).

Consequently, businesses cannot simply claim unforeseen circumstances whenever market conditions deteriorate. The threshold remains deliberately high to preserve contractual certainty, a foundation of commercial relationships in the Netherlands.

Credit Crisis and Price Increases: Unsuccessful Invocations

For many years, case law showed great restraint in economic crises. Fluctuations in commodity and energy prices were generally seen as part of doing business: a normal business risk that, by generally accepted views, is borne by the party invoking it (Article 6:258(2) DCC).

As a result, businesses rarely succeeded with an appeal to Article 6:258 DCC based on market volatility alone. This strict approach preserved contractual certainty, but left businesses exposed during economic shocks.

Would you like clarity about your legal position after extreme price increases or market fluctuations? Our lawyers in Amsterdam can analyse your contract and advise you on your options under Dutch contract law.

Was COVID-19 an unforeseen circumstance under Dutch law?

The COVID-19 pandemic marked a clear break, especially in commercial leases. On 24 December 2021, the Supreme Court answered preliminary questions (prejudiciële vragen) about the lease of business premises within the meaning of Article 7:290 DCC, such as shops and restaurants. If a tenant that depends on visiting customers could not operate its business from the premises, or only to a small extent, because of government COVID-19 measures, this is an unforeseen circumstance for leases concluded before 15 March 2020, unless there are concrete indications to the contrary. The court can then reduce the rent (ECLI:NL:HR:2021:1974, r.o. 3.2.4-3.2.6).

For leases concluded after that date, it must be assessed case by case whether there is such an unforeseen circumstance (r.o. 3.2.6). To calculate the rent reduction, the Supreme Court offered a model, the fixed costs method (vastelastenmethode). In principle, the loss is shared equally between landlord and tenant, insofar as it is not compensated by government support (TVL). Reasonableness and fairness may justify a different split, for example because of the capacity or the financial position of one of the parties (r.o. 3.3.2-3.3.4).

The pandemic showed that Article 6:258 DCC can act as a safety valve in a genuine crisis. That does not mean that a normal economic downturn or a predictable market development qualifies.

What Does the War in Ukraine Mean for Contracts According to Dutch Legislation?

Recent Case Law Shows Shift

Since early 2022, discussion arose again regarding boundaries of unforeseen circumstances. The war in Ukraine, soaring inflation, the energy crisis, and worldwide price increases raised new questions for the courts. Some provisional decisions of lower courts in summary proceedings, discussed below, suggest a possible change in approach.

Important developments per sector:

  • Construction: whether price increases caused by the war can be unforeseen circumstances is also debated for construction contracts. First check whether the contract or the general terms agreed, such as the UAV 2012, already deal with cost increases; to that extent, the contract has accounted for them.
  • Energy supply: on 13 October 2022, the preliminary relief judge of the Rotterdam District Court found that the gas price had increased more than tenfold in just over a year, which it attributed to the European energy crisis that arose partly from the war in Ukraine. The judge did not rule out that a court in main proceedings would treat the extreme gas price as an unforeseen circumstance. The supplier’s appeal to force majeure failed, but the customers’ claims for performance were still rejected, partly because the supplier could not actually deliver (ECLI:NL:RBROT:2022:8502, r.o. 4.8 and 4.13-4.16).
  • Public contracts: on 16 December 2022, the preliminary relief judge of the Noord-Holland District Court ordered a contractor to perform a framework agreement with a municipality. As a provisional measure, demonstrable excessive cost increases for energy and materials resulting from the COVID-19 pandemic and the war in Ukraine, insofar as not covered by the contractual indexation, were to be shared equally (ECLI:NL:RBNHO:2022:11110, r.o. 4.13-4.15 and decision).

Which Factors Do Courts Weigh in the Netherlands?

In these summary proceedings, factors such as the following played a role:

  • Size of the price increase: whether it goes beyond the price increases and indexation that could normally be expected (ECLI:NL:RBROT:2022:8502, r.o. 4.14).
  • Cause of the development: external shocks such as a geopolitical crisis or a pandemic.
  • Financial impact: threatening losses that go beyond normal business risk.

Example (hypothetical): a company concluded a framework agreement for building materials at fixed prices before the war in Ukraine, and raw material prices rose sharply in 2022. In such a case, a preliminary relief judge may make a provisional arrangement for the extra costs until the main proceedings provide clarity, as the Noord-Holland court did (ECLI:NL:RBNHO:2022:11110, r.o. 4.14-4.15).

These decisions were given in summary proceedings (kort geding), not in main proceedings. A decision in summary proceedings is provisional and does not prejudice the main proceedings (Article 257 Dutch Code of Civil Procedure). We are not aware of a Supreme Court ruling on the war in Ukraine and the energy crisis comparable to its 2021 ruling on COVID-19, which leaves uncertainty.

Can Your Business Invoke This Provision Under Netherlands Law?

Threshold Remains High Despite Recent Judgments

Although some courts have appeared more lenient since 2022, the bar remains high. Whether such provisional decisions would be followed in main proceedings or on appeal is uncertain.

Essential limitations:

  • Article 6:258(2) DCC excludes amendment or termination insofar as the circumstances, by the nature of the contract or generally accepted views, are at the risk of the party invoking them.
  • General business risks, such as market fluctuations, usually fall into this category.
  • Poor business results generally do not justify amending a contract. An employer that agreed a severance payment, for example, will usually not be able to rely on a crisis in its sector or on its own poor financial position.

How Can You Limit Risks in New Contracts According to Dutch Legislation?

Implementing Provisions: Essential from 2023

For contracts concluded after the first COVID-19 wave, and certainly after February 2022, the situation is different. These developments were then generally known, so it will be harder to argue that the contract did not account for them. Whether a contract has accounted for a specific circumstance remains a question of interpretation (ECLI:NL:HR:2021:1974, r.o. 3.2.3).

Practical contract clauses that help:

  • Price indexation clauses: Link prices to CBS index figures or specific commodity prices
  • Hardship clauses: Define concrete threshold values (for example, 25% price increase within six months)
  • Renegotiation obligation: Establish that parties negotiate in good faith during extreme developments
  • Phased payments: Divide large projects into partial deliveries with price adjustment moments

Important caveat: you cannot exclude Article 6:258 DCC by contract (Article 6:250 DCC). You can, however, allocate specific risks in the contract. A risk that the contract expressly deals with is in principle not an unforeseen circumstance, because the contract has accounted for it.

Clauses like these allow you to deal with economic volatility in advance, while keeping the certainty that a binding contract offers.

Contact our law firm in Amsterdam for personal legal advice about your specific contractual situation. We assist you with drafting solid agreements that account for current economic volatility.

What Are the Procedural Aspects in the Dutch Jurisdiction?

Court Claim: Step-by-Step Plan

Amendment or termination under Article 6:258 DCC requires a court decision on the claim of a party (Article 6:258(1) DCC). You can bring that claim yourself or as a counterclaim. In summary proceedings, unforeseen circumstances can also be raised as a defence against a claim for performance, as in the Rotterdam and Noord-Holland cases (ECLI:NL:RBROT:2022:8502, r.o. 4.9-4.16; ECLI:NL:RBNHO:2022:11110, r.o. 4.12-4.14). The procedure in the Netherlands roughly runs as follows:

  • Start proceedings: claim the amendment or termination before the competent court.
  • Substantiate: explain, and prove if necessary, that the contract did not account for the circumstance and that the other party may not expect the contract to continue unchanged.
  • Make a specific claim: for example an adjusted price, with partial or full termination in the alternative.
  • Pay the court fee (griffierecht): in principle, the claimant and each defendant that appears pay a court fee for each instance; the amount follows the table annexed to the Court Fees in Civil Cases Act (Article 3(1) and (5) Wgbz).

The court can decide on:

  • Amendment: adjustment of specific contract terms, such as prices or deadlines.
  • Partial termination: certain obligations lapse.
  • Full termination: the contract ends. Amendment and termination can be given retroactive effect and made subject to conditions (Article 6:258(1) DCC and Article 6:260(1) DCC). If the court amends or partially terminates the contract, it can allow a party to terminate the contract entirely by written statement within a set period (Article 6:260(2) DCC).

In summary proceedings, the court does not amend the contract definitively, but it can take a provisional measure, as in the Noord-Holland case. A decision in summary proceedings does not prejudice the main proceedings (Article 257 Dutch Code of Civil Procedure).

How Long Does a Procedure Take Under Dutch Law?

There is no standard duration. It depends on the court, the complexity of the case and whether the parties first go to summary proceedings, which are faster but only provisional. Court fees, lawyers’ fees and procedural risk make litigation an expensive route, so a negotiated solution is often worth exploring, also during the proceedings.

Article 6:258 DCC itself does not require prior negotiations. Many contracts, however, contain a hardship clause that obliges the parties to negotiate first. In the Rotterdam case, such a clause committed the parties to seek a reasonable solution in a loyal and friendly way (ECLI:NL:RBROT:2022:8502, r.o. 4.14).

What Role Does Reasonableness and Fairness Play in Dutch Law?

General Principles Govern Agreement

Creditor and debtor must behave towards each other in accordance with reasonableness and fairness (redelijkheid en billijkheid) (Article 6:2(1) DCC). Reasonableness and fairness can supplement a contract and can set aside a contractual rule insofar as applying it would be unacceptable (Article 6:248 DCC). Article 6:258 DCC is a specific application of this principle. However, not every unforeseen situation justifies amending a contract.

In the weighing, factors such as these can play a role:

  • Balance: are performance and counter-performance still in balance?
  • Purpose: can the original purpose of the contract still be achieved?
  • Severity: has performance become extraordinarily disadvantageous?

For example, an employer that agreed a generous bonus scheme generally cannot rely on unforeseen circumstances merely because it has been taken over by a group that wants to change the scheme. Such business developments are generally at its own risk (Article 6:258(2) DCC).

The position of the parties can also matter. In the COVID-19 rent cases, the Supreme Court held that reasonableness and fairness may justify departing from an equal split of the loss, for example because of the capacity of the tenant or landlord or the financial position of one of them (ECLI:NL:HR:2021:1974, r.o. 3.3.3).

How Do Unforeseen Circumstances Relate to Force Majeure in the Netherlands?

Although both concepts concern exceptional situations, they differ in how they apply and what they lead to:

Force majeure (overmacht, Article 6:75 DCC):

  • A failure in performance that cannot be attributed to the debtor: it is not its fault, and it is not for its account under the law, a juridical act or generally accepted views
  • The debtor does not owe damages for that failure (Article 6:74(1) DCC)
  • Can be temporary or permanent
  • The other party can in principle still terminate the contract (Article 6:265(1) DCC); if performance is permanently or temporarily impossible, no default is required first (Article 6:265(2) DCC)

Unforeseen circumstances (Article 6:258 DCC):

  • The circumstances lay in the future when the contract was concluded, and the contract did not account for them
  • Leads to amendment or termination of the contract
  • Requires a court decision
  • Can be invoked by either party

An important advantage of Article 6:258 DCC is that the court can tailor the outcome. Force majeure only releases the debtor from liability for damages; it does not adjust the contract, and the other party may terminate it under Article 6:265 DCC. Force majeure is also not easily accepted: in the Rotterdam case, the appeal to force majeure failed, while an appeal to unforeseen circumstances remained possible (ECLI:NL:RBROT:2022:8502, r.o. 4.8 and 4.14).

Force majeure is often relied on for a temporary disruption, while Article 6:258 DCC can lead to a lasting adjustment of the contract. This distinction matters when you face long-term structural changes rather than a temporary disruption.

What Do Dutch Lawyers Expect for the Future According to Dutch Legislation?

The decisions since 2022 create a tense legal situation. Previously, price increases and economic crises were generally treated as a business risk. Some courts now accept, at least provisionally, that extreme geopolitical developments can go beyond that.

Critical observations:

  • The decisions discussed on this page were given in summary proceedings, not in main proceedings
  • We are not aware of a Supreme Court ruling on this situation
  • How these decisions relate to the earlier, stricter case law on economic crises is not yet clear
  • Since early 2022, these developments have been widely known

For contracts concluded after February 2022, there is much to be said for the view that geopolitical tensions, inflation and energy prices will usually no longer be “unforeseen”. Parties then already had information about these risks and could take them into account. Whether a specific contract accounted for a circumstance, however, remains a matter of interpretation (ECLI:NL:HR:2021:1974, r.o. 3.2.3).

Recommendations for Entrepreneurs in the Netherlands

  1. Document carefully: Record what information you possessed at contract conclusion
  2. Maintain communication: Consult timely with your counterparty regarding problems
  3. Seek legal advice: Have your position analyzed before initiating procedures
  4. Renegotiate proactively: Often joint consultation produces better results than legal procedures

Dutch courts continue to respect the binding force of contracts. The flexibility shown during the pandemic was a response to exceptional circumstances. You should not assume that a court will adjust your contract because of adverse economic developments.

Frequently asked questions about unforeseen circumstances under Dutch law

What does “unforeseen circumstances” mean?

Under Dutch law, unforeseen circumstances are circumstances that still lay in the future when the contract was concluded and that the contract has not accounted for; that is established by interpreting the contract (ECLI:NL:HR:2021:1974, r.o. 3.2.3). They only lead to amendment or termination if the other party, by standards of reasonableness and fairness, may not expect the contract to continue unchanged (Article 6:258(1) DCC).

What does unforeseen circumstances mean in court?

In a Dutch court, it refers to Article 6:258 DCC: at the request of a party, the court can amend the consequences of a contract or terminate it in whole or in part, also with retroactive effect and subject to conditions (Articles 6:258(1) and 6:260(1) DCC). Courts apply this with restraint (ECLI:NL:HR:1998:ZC2587, r.o. 4.3.2). In summary proceedings, the court can only take provisional measures (Article 254(1) Dutch Code of Civil Procedure), which do not prejudice the main proceedings (Article 257 Dutch Code of Civil Procedure).

Can you cancel a contract “due to unforeseen circumstances”?

Not on your own under Article 6:258 DCC. Amendment or termination on that ground requires a court decision at the request of a party (Article 6:258(1) DCC). Your contract may, however, contain a hardship or termination clause that lets you act yourself. Simply stating “due to unforeseen circumstances” in a letter does not end a contract.

What is the difference between unforeseen circumstances and force majeure?

Force majeure (overmacht) concerns a failure in performance that cannot be attributed to the debtor; the debtor then does not owe damages (Articles 6:74(1) and 6:75 DCC), but the other party can in principle terminate the contract (Article 6:265 DCC). Unforeseen circumstances concern the amendment or termination of the contract itself by the court (Article 6:258 DCC).

Is foreseeability decisive under Article 6:98 DCC?

Article 6:98 DCC does not deal with unforeseen circumstances. It concerns which damage can be attributed to a liable party as a consequence of the event on which its liability rests, taking into account the nature of the liability and of the damage (Article 6:98 DCC). The text of that article does not mention foreseeability. Under Article 6:258 DCC, too, foreseeability alone is not the test: what matters is whether the contract accounted for the circumstance (ECLI:NL:HR:2021:1974, r.o. 3.2.3).

Primary sources

Remko Roosjen

Dutch lawyer

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