If two or more contracting parties wish to make contract adjustments due to force majeure in the Netherlands, the contract terms must be redefined. Under Dutch law, the statutory provisions on force majeure automatically apply to all agreements concluded under Dutch law. However, the parties may include an express clause if they wish to override or deviate from the statutory provisions. However, liability for non-performance due to fault or gross negligence on the part of a party cannot under any circumstances be excluded under Dutch contract law.
Examples of a force majeure clause in a contract under Dutch law
Below we have listed two exemplary clauses on the subject of force majeure under Dutch law for you.
Example clause 1 under Dutch law
In this Agreement, the term force majeure means the prevention of performance of the Agreement as a result of fire, explosion, embargo, riot, insurrection, civil commotion, war (whether war of aggression or not), natural disasters (including storm (flood).
In the event of force majeure, performance of the contract shall be suspended. In the event of force majeure, the parties shall notify each other in writing as soon as possible of the nature and circumstances of the force majeure, the date on which the situation arose and, if possible, its expected duration.
If the Force Majeure has lasted or can reasonably be expected to last for more than thirty (30) calendar days, either Party shall be entitled to terminate the Agreement by written notice with immediate effect and without judicial intervention.
However, remember that in this case, the party affected by the force majeure is obliged to pay compensation.
Example clause 2 under Dutch law
According to this contract, “force majeure” means any circumstance independent of the will of the parties, as a result of which the performance of the contract cannot be required, either temporarily or permanently, according to standards of reasonableness and fairness. Force majeure shall in any event include: civil war and the threat of civil war, natural disasters, strikes, excessive absence of employees, transport problems, fire, shortage of raw materials, government measures of a government whether in the Netherlands or elsewhere, in any event including import and export bans, quota regulations and breakdowns at the party to the agreement, as well as non-performance or force majeure on the part of a third party, with the result that the obligations towards the other party cannot or can no longer be performed as agreed. In the event of force majeure, the affected party is entitled to terminate the agreement or suspend performance of the agreement until the circumstance causing the force majeure no longer exists and the other party is not entitled to compensation or other damages.
If you, as an entrepreneur, have problems because a Dutch contracting party no longer fulfils its obligations due to the circumstance of “force majeure”, it is advisable to first have all contracts analysed by a specialist attorney to find out what strategy can best be pursued in order to arrive at a quick and cost-effective solution. It is also important to first contact all parties to the contract to clarify the exact circumstances that led to the breach of contract. The English speaking attorneys of MAAK Advocaten will be happy to assist you in this matter as well. Do you have any questions about Dutch law or in particular about the contract clause force majeure in the Netherlands? In times of Corona and even long after, delivery problems caused by legal measures can raise many questions. Please contact our team of attorneys in Amsterdam. MAAK Advocaten will be happy to help you.
Dutch specialist attorney in the Netherlands
Do you have questions about Dutch contract law or do you need specific legal advice in Holland on the subject of force majeure under Dutch law? Our experienced Dutch attorneys in Holland will be happy to help you.
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Contact: Remko Roosjen | Dutch Corporate Lawyer