Force Majeure Under Dutch Law

Force majeure under Dutch law (in Dutch: “overmacht“) in the legal context refers to a situation in which a party cannot be held liable for a failure in the performance of an obligation, because this failure cannot be attributed to that party. According to Article 6:75 of the Civil Code, force majeure exists when the failure is neither due to the debtor’s fault nor attributable to the debtor by virtue of law, legal act or commercial practice.

The statutory regulation of force majeure (Section 6:75 DCC) states that a default is not imputable if it is neither due to the debtor’s fault, nor for his account by virtue of law, legal act or generally accepted practice. This means that the debtor does not owe any damages if he can prove that the default is beyond his fault and risk.
Contracts can include a force majeure clause that supplements or modifies the statutory regulation. This can be done, for example, by naming specific circumstances that count as force majeure or not. It is important that such clauses are clearly worded to avoid misunderstandings.

In the context of road traffic accidents, force majeure is a strict exception. The Supreme Court has ruled that force majeure exists if the driver cannot be blamed at law and the fault of the other road user was so unlikely that the driver did not have to take it into account. This is especially true in situations involving children under 14 years of age, unless there is intent or recklessness bordering on intent.

What Exactly Is Force Majeure?

Force majeure in the Netherlands, or “overmacht“, is a legal principle allowing a party to avoid liability if an unexpected event makes it impossible to fulfill contractual duties. It’s not just an excuse; it has specific legal criteria. Think of it as a safety valve for those rare moments when life throws you an unforeseeable curveball.

Under Article 6:75 of the Dutch Civil Code, force majeure refers to situations where failure to perform cannot be attributed to fault or risk of the debtor. It means that neither party foresaw the issue, nor could they reasonably prevent it.

When Can You Claim Force Majeure?

In Dutch contract law, the concept of force majeure only applies in a few specific circumstances:

• Unpredictable circumstances: The event must be unpredictable and outside the party’s control. Think of a flood, an earthquake, or government lockdowns.
• Performance becomes impossible: If your contractual obligations become impossible, then you can invoke force majeure. Mere difficulty or increased cost doesn’t suffice.
• No fault or risk of debtor: The party seeking to invoke force majeure must not be at fault for the event or bear its risk according to the contract.

If these conditions are met, the party failing to perform will not be liable for damages resulting from their non-performance. The focus is on genuine impossibility rather than inconvenience.

Real-Life Examples of Force Majeure in the Netherlands

Consider the 2020 pandemic—COVID-19 was a catalyst for force majeure claims in the Netherlands. Businesses were unable to operate, events were cancelled, and international supply chains were disrupted. The Dutch courts have looked at these cases closely, often assessing whether the event genuinely made contractual performance impossible. For instance, if a company couldn’t deliver goods because borders were closed, this could qualify as force majeure.

Another common example involves natural disasters. A river flooding unexpectedly, rendering it impossible for a construction project to continue, may also lead to a valid force majeure claim.

What Are the Consequences of Force Majeure under Dutch law?

Invoking force majeure doesn’t always mean walking away from a contract entirely. Under Dutch law, a successful force majeure claim can have the following effects:

• Temporary suspension: If the impossibility is temporary, performance can be postponed without any penalty.
• Cancellation of obligations: If the contract cannot be fulfilled at all, the obligations may be canceled, and each party walks away without liability.
• No liability for damages: The party who failed to perform due to force majeure will generally not be liable for any resulting damages.

However, everything depends on the specific language of the contract. Many contracts include a force majeure clause, which defines which events qualify and the consequences for non-performance. Custom clauses can expand or restrict the traditional scope of force majeure, which makes having clear terms essential.

3 Tips for Drafting Contracts with Force Majeure Clauses under Dutch law

A successful invocation of force majeure within the meaning of Section 6:75 of the Civil Code requires that the default is not due to fault on the part of the debtor and that it is not for the debtor’s account either by virtue of law, legal act or generally accepted practice. To avoid future disputes, it’s important to clearly define what constitutes force majeure in your contracts. Here are some tips when you contract under Dutch law:

• Be specific: List specific events that qualify as force majeure. This makes it easier for both parties to understand what might excuse performance.
• Include catch-All terms: After listing specific events, use general terms like “or any other unforeseen circumstances beyond reasonable control.”
• Set consequences: Define what happens if force majeure is invoked. Does the contract terminate, or can the performance be deferred?

How Dutch Courts Evaluate Force Majeure Claims

Dutch courts will closely look at the wording of the contract, the nature of the event, and the specific circumstances. They’ll ask: Could this event have been anticipated? Did the party take reasonable steps to mitigate the impact? If there was any possibility of performing the obligations differently or through extra effort, a force majeure claim might be denied.

Courts emphasize that the burden of proof lies with the party invoking force majeure. They must demonstrate that the event was indeed outside their control and made performance impossible.

Force Majeure vs. Hardship in Dutch Law

It’s worth mentioning that force majeure is not the same as hardship. Under Dutch law, hardship (onvoorziene omstandigheden) refers to situations where performance is still possible but has become far more onerous or financially burdensome than expected (Article 6:258 DCC). In hardship cases, parties can request courts to adjust the terms, but the burden to prove such circumstances is high.

Final Thoughts on Force majeure under Dutch law

Force majeure is a critical aspect of Dutch contract law, designed to provide a fair outcome when unexpected events prevent contractual performance. Given its potential consequences, both parties should ensure their contracts explicitly outline what qualifies as force majeure and the consequences of invoking it.

If you find yourself in a situation involving force majeure, make sure you understand the specific contract language and the criteria under Dutch law. If in doubt, consult a legal expert—like Remko Roosjn, an experienced Dutch contract law attorney who can guide you through the intricacies.

Contact our Dutch contract lawyers

Force majeure in the legal context means that a party is not liable for a failure under certain circumstances, provided those circumstances are beyond the fault and risk of that party. This can be settled either by statute or contract, with the burden of proof usually on the party claiming force majeure. For any legal inquiries or support in the Netherlands, please feel free to contact our adept team at MAAK Advocaten. Committed to excellence, our Dutch lawyers provide superior legal services tailored to your distinct needs. You can reach our law firm in the Netherlands through our website, by email, or phone.

Our approachable and skilled staff at MAAK Attorneys will be delighted to assist you, arranging a meeting with one of our specialized attorneys in the Netherlands. Whether you need a Dutch litigation attorney or a Dutch contract lawyer in Amsterdam, we are eager to guide you through the legal intricacies and secure the most favorable results for your situation.

Contact details

Remko Roosjen | attorney-at-law (‘advocaat’)
+31 (0)20 – 210 31 38
remko.roosjen@maakadvocaten.nl

The information on this legal blog serves purely for educational purposes and should not be taken as specific legal guidance. While we endeavor to maintain accurate and current information, we do not assert its absolute completeness or relevance to your particular situation. For advice tailored to your legal concerns, we urge you to engage with a licensed attorney. Please note that the blog’s content may change without notice, and we are not liable for any inaccuracies or missing information.