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An earn-out clause makes part of the purchase price for a business depend on its results after closing. Dutch law has no special earn-out regime: the clause is a conditional obligation, read under the general rules on contract interpretation and reasonableness and fairness. At MAAK Advocaten in Amsterdam, we review earn-out clauses for foreign buyers and sellers and act when the calculation turns into a dispute.
This article is for companies abroad that are buying or selling a Dutch business under a share purchase agreement (SPA) governed by Dutch law. For the transaction as a whole, see our page on mergers and acquisitions in the Netherlands.
What is an earn-out clause under Dutch law?
An earn-out clause is a contractual promise to pay an extra part of the price if the business reaches agreed results after closing. Under Dutch law it is a conditional obligation: the payment depends on a future, uncertain event.
The Dutch Civil Code calls an obligation conditional when the parties make its effect depend on a future and uncertain event (Article 6:21 Dutch Civil Code). An earn-out is in effect a suspensive condition (opschortende voorwaarde): the obligation to pay only takes effect once the target is met (Article 6:22 Dutch Civil Code). Everything else, from the metric to the dispute mechanism, comes from the SPA itself.
| Element | What it decides | Where disputes start |
|---|---|---|
| Metric | Revenue, gross profit or EBITDA | What counts as revenue or cost after the buyer takes over |
| Period | The years that are measured | Late or missing annual accounts |
| Accounting rules | How the figures are drawn up | Changes in policy after closing |
| Conduct of business | What the buyer may change | Moving revenue or staff to other group companies |
| Dispute mechanism | Who decides a disagreement | Whether an expert may also interpret the SPA |
Which of these points carries the risk for you depends on your side of the deal and on how the buyer plans to run the business. That is a judgement we make per transaction.
How does a Dutch court interpret an earn-out clause?
A Dutch court asks what meaning the parties could reasonably give the clause in the circumstances and what they could reasonably expect of each other. Between professional parties with legal advisers, the wording can carry great weight.
This is the Haviltex standard (Dutch Supreme Court 13 March 1981, ECLI:NL:HR:1981:AG4158). A purely linguistic reading is not enough; the social circles of the parties and the legal knowledge that can be expected of them may also count. The case itself concerned a sale in which part of the price was to be paid as a share of the profit made with the asset sold. In a 2026 earn-out dispute, the court applied the same standard and stressed that the SPA had been negotiated at length by professional parties with legal advice, after due diligence (District Court of Rotterdam, preliminary relief judge, 23 September 2026, ECLI:NL:RBROT:2026:12508).
Reasonableness and fairness can add obligations to the SPA and can set a contractual rule aside where applying it would be unacceptable (Article 6:248 Dutch Civil Code). How a court reads your clause can also depend on the drafts, the financial model and the emails that led to it.
Important: An earn-out definition that looks clear to the deal team can still leave open whether revenue booked by another group company counts, or which accounting policies apply. A Dutch court can then look at the negotiation file to decide. Have a Dutch corporate lawyer review the definitions and the calculation mechanism before you sign the SPA.
Negotiating an earn-out for a Dutch company, or facing a disputed calculation? Send us the SPA through our page for a Dutch corporate lawyer, and we will tell you where the risk sits for your side.
Can the buyer run the business in a way that reduces the earn-out?
The buyer owns the business and may run it, within what the SPA allows. If the buyer prevents the earn-out target from being met, a Dutch court can treat the condition as fulfilled where reasonableness and fairness require it.
That rule is in Article 6:23(1) Dutch Civil Code. It is a safety net, not a plan. In a case before the District Court of The Hague, the seller argued that the buyer had prevented an EBITDA-based earn-out by providing the annual accounts late, letting costs rise, moving activities to other companies and deploying staff elsewhere in the group (District Court of The Hague 27 August 2025, ECLI:NL:RBDHA:2025:16705). The court held that what reasonableness and fairness require depends on the nature and purpose of both the condition and the conduct. It found no prevention: the delay in the accounts did not amount to prevention, and on the other points the seller had not sufficiently backed up its claims against the buyer’s explanation. The court announced that it would reject the earn-out claim.
A seller is therefore better protected by clear covenants in the SPA on how the business is run during the earn-out period than by Article 6:23 alone. Whether your SPA contains enough of them depends on the wording and on what was discussed during the negotiations.
Important: A seller who suspects that revenue is being moved out of the target needs evidence; in the Hague case, claims not backed up against the buyer’s explanation failed. The SPA’s review period for the earn-out statement may also be short. Have a Dutch corporate lawyer look at your information rights and deadlines as soon as the first figures arrive.
What can a seller do if the earn-out turns out low?
A seller can object to the calculation within the period in the SPA, ask for the underlying figures and, if talks fail, start the dispute procedure the SPA provides. Relying on reasonableness and fairness to set the agreed terms aside faces a high threshold.
In an Amsterdam case, part of the earn-out had to be converted into a subordinated loan to the buyer (District Court of Amsterdam 24 September 2025, ECLI:NL:RBAMS:2025:7414). An expert had fixed the earn-out, and the buyer paid half in cash. The seller claimed the other half in cash. It argued that the loan had never come into existence and, in any event, that holding it to the loan terms was unacceptable under Article 6:248(2) Dutch Civil Code, because the poor results were caused by the private equity investor’s policy. The court held that the loan had been agreed in the SPA and its annex. It called the test under Article 6:248(2) a high threshold. The seller had not shown that the buyer’s poor results were solely or mainly due to that policy, so it remained bound by the loan, including its subordination to the bank.
Your realistic options depend on the figures, the objection period and the way the earn-out is paid. A seller that also signed a vendor loan or subordination deed should read those documents together with the SPA.
Who decides an earn-out dispute: an expert, an arbitrator or a court?
Whoever the SPA designates. An SPA can send calculation disputes to an independent accountant for binding advice (bindend advies) and other disputes to arbitration or the courts. The boundary between the two can become the next dispute, as the Rotterdam case below shows.
Under Dutch law, parties can agree to be bound by a decision of a third party (Article 7:900(2) Dutch Civil Code). That decision can be annulled if being bound by it would be unacceptable by standards of reasonableness and fairness, given its content or how it came about (Article 7:904(1) Dutch Civil Code).
The Rotterdam case shows the risk. The SPA sent unsettled calculation items to an independent accountant and all other disputes to arbitration at the Netherlands Arbitration Institute (NAI). After a draft binding advice, the buyer terminated the engagement and started arbitration, arguing that the meaning of the revenue definition was a legal question. The preliminary relief judge agreed on a provisional basis: the accountant had to apply the definitions, not interpret them. The court refused to order the expert procedure to continue.
Important: If the expert’s mandate is drawn too narrowly, months of expert work can stall once one party says that a legal question is at stake, as in the Rotterdam case. That costs time and money on both sides. Have a Dutch corporate lawyer check the dispute clause and the expert’s engagement letter before you sign either of them.
What should a foreign buyer watch for in an earn-out?
A buyer should check what the SPA obliges it to do during the earn-out period: deliver accounts on time, share information and run the business in a set way. Those obligations decide whether a seller can later claim that the target was prevented.
The Hague case also shows the other side. The court found that the seller had breached its duty to inform the buyer before signing about irregularities in the relationship with the target’s largest customer. As a result the buyer had bought on a wrong picture of the business, and the court began to assess the buyer’s loss under the rules on mistake (dwaling, Article 6:228 Dutch Civil Code). An earn-out does not replace warranties or a proper disclosure process. See our pages on warranties and indemnities under Dutch contract law and the disclosure letter in a Dutch M&A deal.
Where closing comes some time after signing, the SPA may also contain a MAC clause under Dutch law. In a management buy-out under Dutch law, the seller who stays on as manager adds a further layer of interests. We do not publish model earn-out wording, because the right wording depends on the business, the metric and the buyer’s plans.
Practical example: revenue moved to a sister company
This is an illustration, not a real case. A US group buys a Dutch software company under an English-language SPA governed by Dutch law. Part of the price depends on revenue in the two years after closing. In the second year, the buyer moves new customer contracts to its own European sales company. The seller receives an earn-out statement well below its forecast.
The seller says that revenue was diverted; the buyer says that it simply ran its group. Under Dutch law the answer turns on the revenue definition, any conduct-of-business covenants and the evidence. In this situation we would first secure the figures within the review period and check the definitions against the negotiation file, and then advise on an objection, a settlement or proceedings.
When should you instruct a Dutch lawyer about an earn-out?
Instruct a Dutch lawyer before you sign the SPA, and again when the first earn-out statement arrives. The first moment fixes the wording; the second decides whether objections are made in time and on the right grounds.
Outside cases heard by the cantonal judge (kantonrechter), a party that wants to claim an earn-out or defend against such a claim before a Dutch district court can only do so through a lawyer (Article 79 Dutch Code of Civil Procedure). An arbitration or expert clause does not change the fact that the SPA is read under Dutch law. We work alongside your in-house counsel or your lawyers at home, in English.
How does MAAK Advocaten handle earn-out disputes?
We handle earn-out questions for buyers and sellers in fixed steps, from reading the SPA to proceedings, so that you know what comes next:
- We read the SPA, the definitions, the financial model and the negotiation history, and list the deadlines.
- We assess the figures with your accountant: what changed after closing, and why.
- We advise on the route that serves your commercial goal: acceptance, an objection or a settlement.
- We negotiate and, if needed, act in expert determination, arbitration or court proceedings, at first instance and on appeal.
For background on Dutch contract law in English, see our guide to the Dutch Civil Code.
Frequently asked questions about earn-out clauses under Dutch law
Does Dutch law have specific rules for earn-outs?
No. An earn-out is a conditional obligation under Articles 6:21 and 6:22 of the Dutch Civil Code. Its content comes from the share purchase agreement, read under the Haviltex standard and the rules on reasonableness and fairness in Article 6:248 of the Dutch Civil Code.
What if the buyer prevents the earn-out target from being met?
Under Article 6:23(1) of the Dutch Civil Code, a court can treat the condition as fulfilled if the buyer prevented it and reasonableness and fairness require this. The seller must show what the buyer did and how it affected the result.
Is an expert’s decision on the earn-out final?
In principle yes, within the expert’s mandate. Parties can agree to be bound by a third party’s decision under Article 7:900 of the Dutch Civil Code. The decision can be annulled under Article 7:904 if being bound by it would be unacceptable by standards of reasonableness and fairness.
Can a seller challenge a low earn-out as unfair?
Only in exceptional cases. Article 6:248(2) of the Dutch Civil Code sets a contractual rule aside only where applying it would be unacceptable. In a 2025 Amsterdam case, a seller invoked it against the loan into which half of its earn-out had been converted; the court called this a high threshold and held the seller to the loan.
When should I involve a Dutch lawyer in an earn-out?
Before you sign the SPA, and as soon as the first earn-out statement arrives. Whether an objection or claim can succeed needs a legal assessment of the clause and the figures. At MAAK Advocaten in Amsterdam we make that assessment and act at first instance and on appeal.
Primary sources
- Article 6:21 Dutch Civil Code: conditional obligations
- Article 6:22 Dutch Civil Code: suspensive and resolutive conditions
- Article 6:23 Dutch Civil Code: prevented or induced fulfilment of a condition
- Article 6:228 Dutch Civil Code: mistake
- Article 6:248 Dutch Civil Code: supplementing and restricting effect of reasonableness and fairness
- Article 7:900 Dutch Civil Code: settlement agreement, including a decision by a third party
- Article 7:904 Dutch Civil Code: annulment of a binding decision
- Article 79 Dutch Code of Civil Procedure: representation by a lawyer
- Dutch Supreme Court 13 March 1981, ECLI:NL:HR:1981:AG4158 (Haviltex): interpretation of contracts
- District Court of The Hague 27 August 2025, ECLI:NL:RBDHA:2025:16705: earn-out and Article 6:23; seller’s duty to inform
- District Court of Amsterdam 24 September 2025, ECLI:NL:RBAMS:2025:7414: earn-out converted into a subordinated loan; Article 6:248(2)
- District Court of Rotterdam (preliminary relief judge) 23 September 2026, ECLI:NL:RBROT:2026:12508: binding advice on the earn-out and arbitration
Buying or selling a Dutch company with an earn-out in the SPA? Put your draft or your dispute to us: call +31 20 210 31 38 or send your question through our page for a Dutch corporate lawyer.
