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.
Legal Basis force majeure under Dutch law
Force majeure under Dutch law is governed by Article 6:75 of the Dutch Civil Code (DCC). According to this provision, force majeure occurs when a party cannot fulfill their obligations due to a factor that is:
- Not attributable to their fault
- Not their responsibility under the law, contract, or generally accepted principles
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.
Force majeure is a legal concept in Dutch contract law that excuses a party from fulfilling their contractual obligations due to circumstances beyond their control. Here are the key aspects of force majeure under Dutch law:
Criteria for Force Majeure under Dutch law
For an event to qualify as force majeure under Dutch law, it must meet the following criteria:
- The event must be beyond the control of the party invoking force majeure
- The event must make performance of the contract impossible or unreasonably difficult
- The party could not have reasonably foreseen or prevented the event
It’s important to note that Dutch law does not require performance to be absolutely impossible, but the threshold for successfully invoking force majeure is generally high.
Contractual Force Majeure Clauses
While statutory force majeure provisions apply automatically to all Dutch contracts, parties often include specific force majeure clauses in their agreements. These clauses may:
- Define what constitutes force majeure
- Specify the consequences of a force majeure event
- Outline notification requirements
- Provide for contract suspension or termination
Common examples of force majeure events in contractual clauses include natural disasters, war, government actions, and epidemics.
Consequences of Force Majeure
When force majeure is successfully invoked:
- The non-performing party is not liable for damages
- The affected party may be excused from performance temporarily or permanently
- The counterparty may have the right to suspend their own obligations or terminate the contract
Burden of Proof and Mitigation
The burden of proving force majeure lies with the non-performing party. Additionally, all parties have a duty to take reasonable steps to mitigate damages under Dutch law.
Alternatives to Force Majeure
If invoking force majeure fails, parties may consider other legal options:
- Unforeseen Circumstances: Article 6:258 of the DCC allows for contract modification in cases of severe, unforeseen circumstances.
- Reasonableness and Fairness: Dutch contract law principles may prevent a party from demanding performance if it would be unreasonable or unfair.
Considerations when dealing with force majeure in Holland
When dealing with force majeure situations under Dutch law:
- Review contracts for specific force majeure clauses
- Document the circumstances preventing performance
- Notify the other party promptly
- Take steps to mitigate damages
- Consider seeking legal advice to assess the strength of a force majeure claim
In conclusion, while Dutch law provides for force majeure, successfully invoking it can be challenging. Careful contract drafting and prompt action in the face of unexpected events are crucial for effectively managing force majeure situations under Dutch law.
Dutch specialist attorney in the Netherlands
For any legal inquiries or support in the Netherlands regarding force majeure 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.