MAC clause under Dutch law: when can a buyer walk away?

Published on 15 September 2026 · Last updated 10 November 2026

A MAC clause (material adverse change clause) lets a buyer refuse to close, or reopen the price, if the target’s business deteriorates seriously between signing and closing. Dutch law has no statutory MAC test: what counts is the wording of your share purchase agreement and how a Dutch court reads it. At MAAK Advocaten in Amsterdam, we review and negotiate these clauses for foreign buyers and sellers.

This article is for companies abroad buying or selling a Dutch business under a contract governed by Dutch law. For the deal as a whole, see our page on mergers and acquisitions in the Netherlands.

What is a MAC clause in a Dutch share purchase agreement?

A MAC clause allocates the risk of a serious downturn in the target between signing and closing. In a Dutch share purchase agreement (SPA) it can take the form of a closing condition, a termination right or a seller warranty that no material adverse change has occurred.

At closing, shares in a Dutch BV pass by a deed executed before a civil-law notary in the Netherlands (Article 2:196 Dutch Civil Code). Until closing, merger control clearance or financing may still be pending. Where a closing condition is drafted as a suspensive condition (opschortende voorwaarde), the obligation only takes effect once the event occurs (Article 6:22 Dutch Civil Code).

Form	What it does	Dutch law angle
Closing condition	The buyer need not close if a MAC has occurred	Suspensive condition, Article 6:21 and Article 6:22 DCC
Termination right	A party may end the SPA before closing	Contractual right; interpretation and reasonableness apply
Warranty	The seller states that no MAC has occurred up to a set date	Breach may lead to damages, Article 6:74 DCC

The form matters. A condition can stop the deal; a warranty is designed to leave the deal in place and gives a claim afterwards.

How does a Dutch court interpret a MAC 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. The wording can carry great weight in a negotiated commercial contract, but it is never the only factor.

This is the Haviltex standard (Dutch Supreme Court 13 March 1981, ECLI:NL:HR:1981:AG4158). For contracts negotiated between professional parties, the Supreme Court accepts that a court may give great weight to the plain meaning of the words. Other circumstances, such as statements made during the negotiations, can still lead to a different reading (Dutch Supreme Court 5 April 2013, ECLI:NL:HR:2013:BY8101). The same judgment holds that an entire agreement clause, an Anglo-American import, does not as such exclude pre-contract statements.

Reasonableness and fairness can also add obligations to the agreement, and can set a contractual rule aside where applying it would be unacceptable (Article 6:248 Dutch Civil Code).

Whether your clause holds therefore depends on the drafts, the emails and the discussions that led to it. That record is evidence, and it is best secured before a dispute starts.

Signing a Dutch SPA with a MAC clause, or facing one? Send us the draft through our page for a Dutch corporate lawyer, and we will tell you where the risk sits for your side.

What counts as a material adverse change under Dutch law?

Dutch law gives no definition and no threshold. What counts as material is whatever the SPA defines, read with the Haviltex standard.

A Dutch Supreme Court case shows how much turns on the exact words (Dutch Supreme Court 7 September 2007, ECLI:NL:HR:2007:BA2014). In the sale of a components business, the SPA defined a material adverse effect as one “materially adverse to the business, financial condition or results of operations of the Business taken as a whole”. The seller warranted that, to its knowledge, the business had not suffered a MAC. After closing, the buyer claimed damages because results for the year before closing had fallen well short of forecasts. The claim failed mainly on the knowledge qualifier: the Court of Appeal read “Knowledge” as actual knowledge, which the buyer had not shown. The Supreme Court upheld that ruling without assessing the MAC definition itself.

The drafting questions that can decide a MAC dispute include:

• Does the clause measure the business as a whole, or a single division or customer?
• Are general market, sector or legal developments excluded, and if so, what happens when the target is hit harder than its competitors?
• Does “would reasonably be expected to” cover a forecast, or only results that have already occurred?
• Who has to prove the MAC, and what information must the seller share before closing?

The answers depend on your side of the deal and on the business; that is a judgement we make per transaction.

Can a buyer rely on unforeseen circumstances without a MAC clause?

Only if Article 6:258 Dutch Civil Code applies. A Dutch court can amend or dissolve a contract on the ground of unforeseen circumstances, but not where the risk falls on the party invoking them by the nature of the contract or generally accepted views.

The rule is in Article 6:258 Dutch Civil Code: the circumstances must be such that the other party, by standards of reasonableness and fairness, may not expect the contract to remain unchanged. Our page on unforeseen circumstances under Dutch law explains the test.

Where the parties discussed a risk and deliberately left it out of the SPA, a buyer will find it hard to argue that the risk was unforeseen, and the risk may be for its account under Article 6:258(2).

What can a seller do if the buyer refuses to close?

A seller can claim performance of the SPA, if needed in summary proceedings (kort geding), and claim damages where the refusal is unjustified. A Dutch court can also treat a condition as fulfilled if the buyer prevented it from being met.

That last rule is Article 6:23 Dutch Civil Code: if the party with an interest in the condition not being fulfilled prevents its fulfilment, the condition counts as fulfilled where reasonableness and fairness require it. The preliminary relief judge decides urgent cases (Article 254 Dutch Code of Civil Procedure), and orders performance only if the claim is sufficiently likely to succeed in full proceedings.

An Amsterdam case shows both sides of this (District Court of Amsterdam, preliminary relief judge, 14 September 2020, ECLI:NL:RBAMS:2020:4535). In a management buy-out signed in spring 2020, the parties had discussed the coronavirus crisis and agreed not to include a MAC clause. After signing, the buyer’s lender withdrew, saying that the final financial model contained changes materially adverse to its interests and had not been prepared on reasonable assumptions. Neither party relied on unforeseen circumstances; the dispute turned on the financing condition. The court found it not sufficiently plausible, at that stage, that the buyer had prevented that condition. It did find that the buyer had not shown sufficient efforts to obtain financing, ordered it to make those efforts under a penalty and barred it from invoking the long stop date before 1 November 2020.

How should you approach a MAC clause in negotiations?

Decide first what the clause must achieve for your side: an exit for the buyer, or deal certainty for the seller. The definition, the exclusions and the link with the warranties and the long stop date all follow from that choice.

It is in the seller’s interest to have a narrow clause or none at all, plus a buyer obligation to make efforts to close. A buyer wants a clause that covers the risks it actually sees in due diligence. The MAC clause also interacts with the warranty and indemnity package: a risk the buyer cannot use to walk away may still be covered after closing. See our page on warranties and indemnities under Dutch contract law (Article 6:74 DCC).

If you will not attend the notarial transfer in person, you will need a valid power of attorney under Dutch law. A foreign buyer may hold the target through a new Dutch acquisition company; see setting up a Dutch BV. We do not publish model MAC wording, because the right wording depends on the target, the sector and the financing.

Practical example: a downturn between signing and closing

This is an illustration, not a real case. A US group signs an English-language SPA, governed by Dutch law, to buy a Dutch logistics company. Closing depends on merger control clearance. Six weeks after signing, the target’s largest customer gives notice. The SPA defines a MAC as an effect that is materially adverse to the business taken as a whole, and excludes changes in general economic conditions.

The buyer wants out; the seller says one customer is not the business as a whole. Under Dutch law the outcome turns on the definition, the negotiation file and the figures. In this situation we would first secure the evidence and check whether the customer risk was disclosed in due diligence, and then advise on a renegotiated price, a claim or a walk-away.

When should you instruct a Dutch lawyer about a MAC clause?

Instruct a Dutch lawyer before you sign an SPA governed by Dutch law, and again as soon as either party mentions a MAC. Both moments decide your position: the first fixes the wording, the second the evidence and the deadlines.

A party that wants to enforce the SPA or claim damages before a Dutch district court can only do so through a lawyer (Article 79(2) Dutch Code of Civil Procedure). We work alongside your in-house counsel or your lawyers at home, in English.

How does MAAK Advocaten handle MAC clause issues?

We handle MAC questions for buyers and sellers in fixed steps, from reading the SPA to proceedings before a Dutch court, so that you know what comes next:

1. We read the SPA, the definitions and the negotiation history, and list the conditions and deadlines.
2. We assess the facts: what has changed in the business, and what the seller disclosed.
3. We advise on the route that serves your commercial goal: closing, a renegotiated price or a walk-away.
4. We negotiate with the other side and, if needed, act in summary proceedings or proceedings on the merits, at first instance and on appeal.

For background on Dutch contract law in English, see our guide to the Dutch Civil Code. For a takeover from start to finish, see takeover of a Dutch company.

Frequently asked questions about MAC clauses under Dutch law

Is there a statutory MAC rule in Dutch law?

No. Dutch law has no statutory definition of a material adverse change. Whether a MAC has occurred depends on the wording of 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 is the difference between a MAC and a MAE clause?

Both terms can appear in the same agreement. Some agreements define a material adverse change as an event that would reasonably be expected to have a material adverse effect, as in the SPA discussed by the Dutch Supreme Court in 2007. The definitions in your own contract decide the difference.

Does a pandemic or war count as a material adverse change?

Only if the clause covers it. A MAC clause may exclude general economic or market developments, so the wording decides. Where parties discussed a known risk and chose not to cover it, a buyer will find it hard to call it unforeseen under Article 6:258 of the Dutch Civil Code.

Can a buyer walk away without a MAC clause?

Only with another ground, such as an unfulfilled condition or a court ruling on unforeseen circumstances under Article 6:258 of the Dutch Civil Code. A buyer that refuses to close without a valid ground risks being held to the deal or a claim for damages.

When should I involve a Dutch lawyer in a MAC dispute?

Before signing, and as soon as a MAC is raised. Whether a MAC has occurred, and what you can still do before the long stop date, needs a legal assessment. At MAAK Advocaten in Amsterdam we make that assessment and act in Dutch courts at first instance and on appeal.

Primary sources

• Article 2:196 Dutch Civil Code: transfer of shares in a BV by notarial deed
• 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 6:74 Dutch Civil Code: damages for non-performance
• Article 6:248 Dutch Civil Code: supplementing and restricting effect of reasonableness and fairness
• Article 6:258 Dutch Civil Code: unforeseen circumstances
• Article 6:265 Dutch Civil Code: termination for non-performance
• Article 6:277 Dutch Civil Code: damages on termination
• Article 79 Dutch Code of Civil Procedure: representation by a lawyer
• Article 254 Dutch Code of Civil Procedure: summary proceedings
• Dutch Supreme Court 13 March 1981, ECLI:NL:HR:1981:AG4158 (Haviltex): interpretation of contracts
• Dutch Supreme Court 7 September 2007, ECLI:NL:HR:2007:BA2014: MAC warranty limited to the seller’s knowledge
• Dutch Supreme Court 5 April 2013, ECLI:NL:HR:2013:BY8101: plain wording in commercial contracts; entire agreement clause
• District Court of Amsterdam 14 September 2020, ECLI:NL:RBAMS:2020:4535: financing condition, Article 6:23 and long stop date

Buying or selling a Dutch company with a MAC clause 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.