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Dutch law treats every failure to perform as one concept, a tekortkoming (breach), but most remedies only become available once your counterparty is in default, usually after a written notice with a reasonable deadline (Articles 6:74 and 6:82 DCC). You can then terminate by a written declaration, without a court, and claim damages for loss that can be attributed to the breach.
This page is for foreign suppliers, buyers, distributors and service providers whose Dutch contract partner does not deliver, delivers late or does not pay. It sets out where Dutch law works differently from what many foreign businesses expect, and what you should do at each step. Has your Dutch partner breached the contract? Have a Dutch contract lawyer check your notice of default before you send it.
Why does Dutch law handle a breach of contract differently?
Because Dutch contract law is codified in the Dutch Civil Code (DCC). One general rule covers every breach, whatever its form, and the remedies follow from Book 6 of the Code. Reasonableness and fairness (redelijkheid en billijkheid) can supplement or set aside what the parties agreed (Article 6:248 DCC).
For a foreign business, the differences sit mainly in the steps and deadlines. A claim can fail because the debtor was never put in default, or because a defect was not reported in time. A broader comparison of the two systems is on our page Dutch civil law compared with English contract law.
| Point | Rule under Dutch law | Legal basis | What you should do |
|---|---|---|---|
| Notice of default | Damages for delay and termination usually require default, which starts after a written notice with a reasonable deadline | Articles 6:74(2), 6:82, 6:83 and 6:265(2) DCC | Send a written notice before you terminate or claim |
| Termination | By written declaration, without a court; not for a breach of minor importance | Articles 6:265 and 6:267 DCC | Check that the breach justifies termination |
| Performance | The creditor can have the debtor ordered to perform | Article 3:296 DCC | Consider a claim for performance with a penalty payment |
| Damages | Loss that can be attributed to the breach, including lost profit and reasonable costs | Articles 6:96 and 6:98 DCC | Document your loss from day one |
| Penalty clause | Replaces statutory damages; the court can reduce it if fairness clearly requires | Articles 6:92 and 6:94 DCC | Do not rely on the full penalty amount |
| Complaints | Protest about a defective performance within a reasonable time | Article 6:89 DCC; Article 7:23 DCC for sales | Complain in writing as soon as you find the defect |
Do you need a notice of default before you can claim?
In most cases, yes. Your counterparty is in default (verzuim) only after a written notice that gives a reasonable period for performance, and performance does not follow within that period (Article 6:82(1) DCC). As long as performance is still possible, damages require default (Article 6:74(2) DCC).
Default starts without a notice in three situations: a deadline agreed for performance passes, unless it had a different purpose; the obligation is to pay damages and is not performed immediately; or the debtor tells you that it will not perform (Article 6:83 DCC). If the debtor cannot perform temporarily, or its attitude shows that a reminder is pointless, a written statement holding it liable is enough (Article 6:82(2) DCC).
A short letter that describes the failure, sets a clear date and holds the debtor liable avoids most later discussion. Our page on the demand letter under Dutch law sets out what such a letter should contain.
Can you terminate a Dutch contract without going to court?
Yes. Termination (ontbinding) takes place by a written declaration of the party entitled to terminate (Article 6:267(1) DCC). Every breach gives that right, unless its special nature or minor importance does not justify termination (Article 6:265(1) DCC).
Where performance is still possible, the right to terminate only arises once the debtor is in default (Article 6:265(2) DCC). Termination releases both parties from the obligations it affects. It does not work retroactively (Article 6:269 DCC): performances already made have to be undone (Article 6:271 DCC). If the contract was concluded electronically, the declaration can also be made electronically (Article 6:267(1) DCC).
An unjustified termination can itself be a breach. The criteria are on our page on contract termination for breach under Dutch law.
For a sale of goods between businesses in different countries, the UN Convention on Contracts for the International Sale of Goods (CISG) may apply unless excluded (Articles 1 and 6 CISG). A buyer can then only avoid the contract for a fundamental breach or after an additional period for delivery, by notice to the seller (Articles 25, 49 and 26 CISG).
Is a claim for performance a normal remedy under Dutch law?
Yes. Unless the law, the nature of the obligation or the contract provides otherwise, the court orders a party to do what it is obliged to do (Article 3:296(1) DCC). Performance is therefore a standard remedy, not an exception.
The court can add a penalty payment (dwangsom) for each day or each breach of the order, but not to an order to pay money (Article 611a DCCP). Where performance is urgent, for example delivery of goods you need for your own production, you can ask the preliminary relief judge in summary proceedings (kort geding) (Article 254 DCCP).
Which damages can you recover after a breach?
Financial loss, which covers both the loss suffered and lost profit, plus reasonable costs to prevent or limit the loss, to establish damage and liability and to collect payment out of court (Article 6:96(1) and (2) DCC). The breach must be attributable to the debtor (Article 6:74(1) and 6:75 DCC).
Dutch law does not use a separate foreseeability cap. The test is whether the loss is connected to the breach in such a way that it can be attributed to the debtor, taking into account the nature of the liability and of the loss (Article 6:98 DCC). Under the CISG, damages are limited to loss that was foreseeable when the contract was concluded (Article 74 CISG). If your own conduct contributed to the loss, the compensation is reduced (Article 6:101 DCC).
What is due under a penalty clause replaces statutory damages (Article 6:92(2) DCC). The court can reduce the penalty if fairness clearly requires this, but not below the statutory damages, and a clause that excludes this power is void (Article 6:94(1) and (3) DCC). On late payment between businesses, statutory commercial interest applies (Article 6:119a DCC). More on our pages on claims for damages and contractual penalties under Dutch law.
Can reasonableness and fairness override your contract?
Yes, in exceptional cases. A rule that applies between the parties under their contract does not apply to the extent that this would be unacceptable by standards of reasonableness and fairness (Article 6:248(2) DCC). The bar is high: the result must be unacceptable, not merely unfair. It can still affect exclusion clauses and strict deadlines.
A debtor can also argue that the breach is not attributable to it (Article 6:75 DCC; see force majeure in the Netherlands), or ask the court to amend the contract for unforeseen circumstances (Article 6:258 DCC).
Do you rely on your own general terms and conditions? Between businesses that are not both established in the Netherlands, the Dutch rules on general terms (Articles 6:231 to 6:247 DCC) do not apply, whatever law governs the contract (Article 6:247(2) DCC). A foreign party can then only rely on Article 6:248(2) DCC if Dutch law applies. The wording of your liability clause therefore carries more weight.
Which deadlines can cost you a breach claim?
Two kinds: complaint periods and limitation periods. If you do not complain within a reasonable time after you discovered a defect, or should have discovered it, you can no longer rely on it (Article 6:89 DCC; for sales Article 7:23(1) DCC).
Under the CISG, the buyer must examine the goods within as short a period as is practicable and give notice of a lack of conformity within a reasonable time, and in any event within two years after the goods were handed over (Articles 38 and 39 CISG). A claim for performance of a contractual obligation becomes time-barred five years after it fell due (Article 3:307 DCC). A claim for damages becomes time-barred five years after you became aware of the damage and of the party liable (Article 3:310(1) DCC).
A written reminder, or a written statement unambiguously reserving your right to performance, interrupts the limitation period for a claim for performance of an obligation, including payment of damages; for other claims, such as a claim for termination, a reminder only works if followed within six months by, for example, proceedings (Article 3:317 DCC).
Your Dutch partner has breached the contract: what should you do first?
Secure your evidence, check which law applies and put the other party in default in writing. Then decide on termination, performance or damages.
- Collect the contract, general terms, order confirmations and all correspondence about the breach.
- Check the governing law, whether the CISG applies and which court or arbitral tribunal has jurisdiction; see Dutch jurisdiction in international disputes.
- Send a written notice of default with a reasonable deadline, unless default has already started (Articles 6:82 and 6:83 DCC).
- Decide whether to suspend your own performance (Article 6:262 DCC); see the right of suspension in the Netherlands.
- If you fear the debtor will move assets, consider a pre-judgment attachment before you sue.
- Choose between performance, termination and damages, or a combination, and record your loss.
Practical example: a Belgian engineering firm and a Dutch client
Suppose a Belgian engineering firm delivers design work to a Dutch manufacturer under a contract governed by Dutch law. The contract mentions a “planned” delivery date, and the final drawings arrive two weeks after it. The manufacturer sends an e-mail that it “terminates the contract with immediate effect” and refuses to pay the last invoice.
An agreed delivery date normally puts the firm in default as soon as it passes, unless it appears that the date had a different purpose, for example as a target date (Article 6:83(a) DCC). The contract calls the date “planned”. If that makes it a target date, the manufacturer should first have set a reasonable period in writing (Article 6:82 DCC), and without default its termination has no effect while performance is still possible (Article 6:265(2) DCC). The firm can then claim payment for the work delivered. Even with default, a delay of two weeks only justifies termination if the breach is important enough (Article 6:265(1) DCC).
When do you need a Dutch lawyer for a contract breach?
Before you terminate, suspend or attach, and as soon as the other party disputes the breach. The steps in Dutch law are formal, and an error in the notice of default or the termination letter can turn a strong claim into your own breach.
Claims up to EUR 25,000, and certain contracts such as agency and lease contracts, go to the subdistrict court (kantonrechter), where you may act without a lawyer; in all other cases a Dutch advocate must represent you (Articles 93 and 79 DCCP). MAAK Advocaten in Amsterdam drafts notices of default and termination letters, negotiates with the Dutch party, levies attachments and acts in proceedings at first instance and on appeal, and in arbitration. Send us the contract and the correspondence; we tell you which remedy fits and which deadline applies. See also our Dutch litigation lawyers.
Frequently asked questions about contract breaches under Dutch law
Do I always need a notice of default under Dutch law?
No. Default starts without notice when an agreed deadline for performance passes, unless it appears that the deadline had a different purpose, when the debtor tells you it will not perform, or when a damages obligation is not paid immediately (Article 6:83 DCC). In all other cases you need a written notice with a reasonable deadline (Article 6:82 DCC).
Can I terminate a contract with a Dutch company by e-mail?
Termination requires a written declaration (Article 6:267(1) DCC). If the contract was concluded electronically, an electronic declaration is also possible. Make sure the debtor is in default first, unless performance has become impossible (Article 6:265(2) DCC).
What damages can I claim from a Dutch party in breach?
Loss suffered and lost profit, plus reasonable costs to limit the loss, to establish liability and to collect payment out of court (Article 6:96 DCC). The loss must be attributable to the breach (Article 6:98 DCC). Your own contribution to the loss reduces the compensation (Article 6:101 DCC).
Does the CISG apply to my sale to a Dutch buyer?
Often, if both parties are businesses in different contracting states and the contract is a sale of goods, unless you excluded it (Articles 1 and 6 CISG). It does not cover sales of goods for personal use or by auction (Article 2 CISG). Check this before you rely on Dutch sales law.
How long do I have to bring a breach claim in the Netherlands?
A claim for performance becomes time-barred five years after it fell due (Article 3:307 DCC); a claim for damages five years after you knew of the damage and the party liable (Article 3:310 DCC). Complaints about defects must be made much sooner, within a reasonable time (Article 6:89 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.
- Dutch Civil Code (Burgerlijk Wetboek), Book 3: Articles 3:296, 3:307, 3:310 and 3:317
- Dutch Civil Code, Book 6: Articles 6:74, 6:75, 6:82, 6:83, 6:89, 6:92, 6:94, 6:96, 6:98, 6:101, 6:119a, 6:247, 6:248, 6:258, 6:262, 6:265, 6:267, 6:269 and 6:271
- Dutch Civil Code, Book 7: Article 7:23
- Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering): Articles 79, 93, 254 and 611a
- UN Convention on Contracts for the International Sale of Goods (CISG): Articles 1, 2, 6, 25, 26, 38, 39, 49 and 74
