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Interpretation of Dutch contracts

Interpretation of Dutch contracts

At MAAK Advocaten, we pride ourselves on staying updated with the latest legal developments. On the 25th of August 2023, an essential decision by the Dutch Supreme Court (“Hoge Raad”) has provided clarity on a topic of interest to many legal practitioners and their clients. Our Dutch contract law lawyer shall explain the importance of this new decision and the interpretation of Dutch contracts.

The Significance of Haviltex-criterium

In 1981, the Hoge Raad set a precedent that in interpreting written agreements, all facts and circumstances should be taken into consideration, known as the Haviltex-criterium.

In this specific matter, a restitution clause allowed the buyer to return a machine to the seller on receipt of a certain amount of money. Complaints about the court’s standard of interpretation of the contract, including the restitution clause. The Supreme Court sets the standard that the question of how a written contract regulates the relationship between the parties and whether it leaves a gap to be filled cannot be answered solely on the basis of a purely linguistic interpretation of the provisions of that contract. The answer to that question depends on the meaning which the parties could reasonably attribute to those provisions in the circumstances, and on what they could reasonably expect from each other in that regard. The social circles to which the parties belong and the legal knowledge that can be expected from such parties may also be relevant.

In summary, this ruling was pivotal, allowing for oral clarifications that might have been provided during contract negotiations, ensuring that the true intentions of the parties involved were captured beyond just the written text. However, with this flexibility also came challenges. One of the primary concerns was the ambiguity it presented. The argument could be made that “although clause X states this, we intended Y,” leading to potential disputes and protracted litigation.

The Latest Verdict and its Implications

In a recent case evaluated by the Hoge Raad, there was a stipulation in a contract which, deviating from the Haviltex-criterium, held the literal text of the agreement paramount over any inferred party intentions. Thus, the judiciary would need to interpret the clauses of the contract strictly based on their grammatical understanding.

The appeal in cassation brought forward a contention that such an arrangement would contradict the principle of ‘fairness and reasonableness.’ In a landmark judgment, the Hoge Raad dismissed this contention, establishing that for the Interpretation of Dutch contracts, it’s permissible for parties to contractually define their standards for interpretation.

This decision is a significant nod to the evolving needs of modern-day contracts and jurisprudence. We anticipate that this will pave the way for a surge in contracts adopting a more explicit interpretation standard, focusing solely on the written content without ambiguity.

A Paradigm Shift in Contractual Interpretations under Dutch law

What this implies for our clients and the broader legal community is the empowered choice in contract drafting. Parties can now decide if they want the flexibility of the Haviltex-criterium or the precision of a strict grammatical interpretation. It provides clarity, reduces potential areas of conflict, and ensures that both parties are on the same page, quite literally.

This decision also demonstrates the Hoge Raad’s commitment to aligning legal principles with practical requirements and emerging trends in contract law.

In conclusion, while the Haviltex-criterium served an essential purpose in its time, the Hoge Raad’s recent decision offers a new avenue for contract drafting and interpretation. At MAAK Advocaten, we are equipped to guide our clients through these nuances, ensuring that their contractual relationships are both legally sound and tailored to their specific needs.

Get in Touch with our Dutch commercial law firm

If you have any questions or require legal assistance regarding the interpretation of Dutch contracts and the new case law, please don’t hesitate to reach out to our knowledgeable and dedicated team at our Dutch commercial law firm.  Our Dutch lawyers are committed to providing exceptional legal services and personalized attention to address your unique needs. You can contact us through our website, via email, or by phone. Our friendly and professional staff will be more than happy to assist you and schedule a consultation with one of our expert attorneys in the Netherlands, for example a Dutch litigation attorney or contract lawyer in the Netherlands in Amsterdam. We look forward to the opportunity to help you navigate the complexities of the legal landscape and achieve the best possible outcomes for your case.

Contact person: Remko Roosjen | attorney-at-law
Office number: +31 (0)20 – 210 31 38

The content provided on this legal blog is intended for general informational purposes only and should not be construed as legal advice or a substitute for professional legal counsel. While we strive to ensure the accuracy and timeliness of the information presented, we cannot guarantee its completeness or applicability to your specific circumstances. We encourage you to consult with a qualified attorney for advice regarding your individual legal matters. The content on this blog may be subject to changes or updates without notice, and we disclaim any responsibility for any errors or omissions in the information provided.


Remko Roosjen

Remko is a commercial law attorney in the Netherlands and creates close working relationships with clients, providing pragmatic solutions across on all legal matters in the Netherlands. Remko is a co-founder of our Dutch Law Firm in Amsterdam. His specialist areas include (international) Commercial Disputes & Contracts, including civil litigation, arbitration and mediation. Remko is a sharp, creative attorney with extensive experience representing both plaintiffs and defendants. Visit Remko's profile via the website or via his LinkedIn Profile.