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A policyholder must disclose, before the contract is concluded, the facts it knows or ought to know that may affect the insurer’s decision to insure and on what terms (Article 7:928 Dutch Civil Code, Burgerlijk Wetboek, BW). An insurer that discovers a breach must react within two months (Article 7:929 BW). The Supreme Court (Hoge Raad) ruled in 2023 and 2026 on when that period starts.
This article explains the statutory rules, the Supreme Court ruling of 7 July 2023 in Sasagar v Nationale-Nederlanden and the ruling of 27 February 2026. MAAK Advocaten advises businesses on insurance and contract law under Dutch law. Our team also advises on Dutch Distribution Law.
What does the disclosure duty in Articles 7:928 and 7:929 BW require?
Article 7:928(1) BW requires the policyholder (verzekeringnemer), before the contract is concluded, to disclose all facts that it knows or ought to know and on which, as it knows or ought to understand, the insurer’s decision whether, and if so on what terms, to provide cover depends or may depend. This is the duty of disclosure (mededelingsplicht).
The duty has limits. It does not cover facts that the insurer already knows or ought to know, nor facts that would not have led to a decision less favourable to the policyholder. But if a specific question was answered incorrectly or incompletely, the policyholder cannot argue that the insurer already knew or ought to have known the facts (Article 7:928(4)). Facts about criminal history only have to be disclosed if they occurred in the eight years before the insurance was concluded and the insurer asked about them explicitly, in terms not open to misunderstanding (Article 7:928(5)). If the insurance was concluded on the basis of the insurer’s own questionnaire, the insurer cannot rely on unanswered questions, on facts it did not ask about, or on an incomplete answer to a question in general terms, unless the policyholder acted with intent to mislead the insurer (Article 7:928(6)).
If the duty was not fulfilled, the right to payment is governed by Article 7:930 BW:
- full payment, if the facts that were not or incorrectly disclosed are irrelevant to the assessment of the risk as it materialised (paragraph 2);
- a proportionally reduced payment, if the insurer would have charged a higher premium or insured a lower amount; payment as if those terms applied, if the insurer would have set other conditions (paragraph 3);
- no payment, if the insurer would not have concluded the insurance at all had it known the true facts; a policyholder who acted in good faith then owes no premium either, but the insurer is entitled to fair compensation of its costs (paragraph 4);
- no payment to a policyholder who acted with intent to mislead the insurer (paragraph 5).
Where the policyholder is a natural person who takes out the insurance other than in the course of a profession or business, Articles 7:928 to 7:930 cannot be deviated from to the policyholder’s detriment (Article 7:943(3) BW). That restriction does not apply to business insurance.
Article 7:929(1) BW adds a time limit. An insurer that discovers that the duty of disclosure was not fulfilled can only invoke the consequences if it points out the non-compliance to the policyholder within two months after the discovery, stating the possible consequences. If the policyholder acted with intent to mislead, or if the insurer would not have concluded the insurance had it known the true facts, the insurer can also terminate the contract with immediate effect within two months after the discovery (Article 7:929(2)). The policyholder in turn can terminate the contract with immediate effect within two months after the insurer’s notice, or after the insurer relies on the breach when the insured event occurs (Article 7:929(3)).
What was the Sasagar v Nationale-Nederlanden case about?
The case that led to this significant ruling involves Sasagar B.V., a courier service company. Among its fleet of company vehicles was a BMW, insured in 2016 by a legal predecessor of Nationale Nederlanden (NN).
In the application form, completed by the insurance intermediary, the question whether the policyholder had had one claim in the last three years, or whether more than EUR 10,000 in total had been paid out in claims in that period, was answered “No”. In March 2018 the BMW was stolen and Sasagar claimed payment. On 16 August 2018 NN wrote to Sasagar that the claims history had not been disclosed truthfully and that it provisionally concluded that this had been done intentionally. The letter pointed out the consequences that may follow from incorrect answers in the application form, including loss of the right to compensation.
Sasagar subsequently sued for compensation for the theft damage. The crux of Sasagar’s argument was that NN could not invoke a violation of the disclosure obligation since the two-month term specified by Article 7:929, paragraph 1 BW had already expired by the time NN relied on the consequences of the violation on August 16, 2018.
How did the court and the court of appeal rule?
The District Court of Amsterdam dismissed Sasagar’s claim and the Amsterdam Court of Appeal upheld that judgment. The court of appeal found that in the three years before the application Sasagar had had twenty claims, with EUR 58,923.12 paid out, so the questions in the form had been answered incorrectly. In the circumstances, it could not be assumed that NN had been sufficiently certain of the breach earlier than two months before 16 August 2018. Sasagar had not put forward anything concrete to show that a reasonably acting insurer would still have provided cover, so NN’s reliance on Article 7:930 BW succeeded.
What did the Dutch Supreme Court decide in 2023?
Sasagar then appealed to the Supreme Court. In the appeal, the main point of contention was whether NN had invoked the consequences of not fulfilling the disclosure obligation in a timely manner.
The Supreme Court focused on the word “discovers” in Article 7:929(1) BW. Relying on the legislative history, it held that the two-month period only starts once the insurer has obtained sufficient certainty that the policyholder did not fulfil the duty of disclosure; a suspicion is not enough. When the insurer has that certainty depends on the circumstances of the case, as does the question whether, and to what extent, the insurer may be expected to investigate after it receives indications of a breach (para. 3.5). The notice rule exists so that the insurer does not leave the policyholder uncertain about whether it will rely on the breach, and does not let matters drift (para. 3.4). The Supreme Court dismissed Sasagar’s appeal (ECLI:NL:HR:2023:1050).
What did the Supreme Court rule on pre-contractual disclosure in 2026?
On 27 February 2026 the Supreme Court ruled again on the start of the two-month period (ECLI:NL:HR:2026:321). The case concerned a disability insurance policy (arbeidsongeschiktheidsverzekering). In the health declaration and at a medical examination, the policyholder had denied back complaints. After he claimed benefits, Nationale-Nederlanden requested medical information. On 19 February 2021 it received a letter from an orthopaedic surgeon, addressed to its medical adviser, describing chronic back complaints.
The Hague Court of Appeal held that the period started when that letter was received, and that the insurer had acted too late. The Supreme Court disagreed. In the context of a disability insurance policy, it held: if the investigation concerns medical data and a medical adviser is involved, the moment the medical adviser receives information can, partly in view of the adviser’s professional secrecy, as a rule not be treated as the moment of discovery by the insurer. As a starting point, the insurer can only assess whether the policyholder disclosed what it had to disclose after the medical adviser has given advice. The period then starts at the moment the insurer has been able to make that assessment with due expedition (para. 3.1.3).
The Supreme Court also held that the notice under Article 7:929(1) BW must state the possible consequences. The insurer does not have to state within the two months which consequences it actually attaches to the breach (para. 3.2.2). The Supreme Court quashed the judgment of the Hague Court of Appeal and referred the case to the Amsterdam Court of Appeal.
What do these rulings mean for insurers and policyholders?
For policyholders: answer the questions in an application form fully and correctly. If a specific question was answered incorrectly or incompletely, the policyholder cannot argue later that the insurer could have known the facts (Article 7:928(4) BW). For insurers: once there are indications of non-disclosure, investigate without delay, and send the notice within two months after obtaining sufficient certainty, stating the possible consequences (Article 7:929(1) BW).
Whether an insurer acted in time always depends on the facts of the case: when it had sufficient certainty, and what investigation could be expected of it. MAAK Advocaten advises businesses on insurance and contract law under Dutch law. See also our overview of contract law in the Netherlands.
Frequently asked questions about the policyholder’s disclosure duty under Dutch law
What did the Dutch Supreme Court rule in 2026 on pre-contractual disclosure?
In its ruling of 27 February 2026 (ECLI:NL:HR:2026:321) the Supreme Court held that, where an insurer investigates possible non-disclosure in a disability insurance application with the help of a medical adviser, the two-month period of Article 7:929(1) BW as a rule does not start when the medical adviser receives the information. As a starting point it starts when the insurer, after receiving the medical adviser’s advice, has been able to assess the breach with due expedition. The notice only has to state the possible consequences.
What does Article 7:928 BW require from the policyholder?
Before the contract is concluded, the policyholder must disclose all facts it knows or ought to know and on which, as it knows or ought to understand, the insurer’s decision whether and on what terms to insure depends or may depend (Article 7:928(1) BW). Facts the insurer already knows or ought to know are not covered, unless a specific question was answered incorrectly or incompletely (paragraph 4).
When does the two-month period of Article 7:929 BW start?
When the insurer has obtained sufficient certainty that the duty of disclosure was breached; a suspicion is not enough. When that is, and how much investigation can be expected of the insurer, depends on the circumstances (HR 7 July 2023, para. 3.5). Within two months the insurer must point out the breach and state the possible consequences (Article 7:929(1) BW).
What happens under Article 7:930 BW if the policyholder did not disclose a fact?
It depends on what the insurer would have done had it known the true facts: full payment if the facts are irrelevant to the risk as it materialised, a proportionally reduced payment or payment on different terms, or no payment if the insurer would not have insured at all. A policyholder who acted with intent to mislead receives no payment (Article 7:930(2)-(5) BW).
Can the insurer terminate the policy after non-disclosure?
Under Article 7:929(2) BW, the insurer can terminate the contract with immediate effect if the policyholder acted with intent to mislead or if the insurer would not have concluded the insurance had it known the true facts. It must do so within two months after the discovery. The policyholder can also terminate with immediate effect within two months after the insurer’s notice (paragraph 3).
Primary sources
- Dutch Civil Code (Burgerlijk Wetboek), Book 7: Articles 7:928, 7:929, 7:930 and 7:943
- Supreme Court (Hoge Raad) 7 July 2023, ECLI:NL:HR:2023:1050 (Sasagar v Nationale-Nederlanden)
- Supreme Court (Hoge Raad) 27 February 2026, ECLI:NL:HR:2026:321
