Breach of contract is under Dutch law a legal cause of action and a type of civil wrong in the Netherlands, in which a binding commercial agreement is not honored by one or more of the parties to the contract by non-performance or interference with the other party’s performance. Breach of contract can lead to civil proceedings in the courts. Dutch law has various remedies that can be effectuated in the event of a breach of contract. These include terminating a commercial contract, rescinding the contract and claiming compensation. Knowing when to apply which remedy requires knowledge of Dutch law. Have one of our Dutch lawyers properly advise you on this. Together with you our experienced attorneys in the Netherlands will determine the strategy and will immediately take the necessary steps for you.
An administrative penalty order (last onder dwangsom) is an enforcement instrument used by government authorities to compel individuals or businesses to cease violations of regulations.
Summary proceedings (kort geding) constitute an expedited court procedure under Dutch law through which you obtain a preliminary ruling from the judge within weeks regarding
Jelke van Uden is a legal specialist (jurist) at MAAK Advocaten in Amsterdam who focuses entirely on the legal problems that affect entrepreneurs most: a business partner
A breach of contract under Dutch law is any failure to perform an obligation from a valid agreement. Dutch law calls this non-performance (wanprestatie). When the failure can be attributed to the other party, the injured party can claim damages under article 6:74 of the Dutch Civil Code, alongside or instead of enforcing performance.
Non-performance takes several forms: no performance at all, late performance, or defective performance that does not meet what the contract required. Which remedy fits depends on the type of failure and on whether the other party is already in default.
Most remedies require the debtor to be in default (verzuim). Default normally arises after a written notice of default (ingebrekestelling) that gives a reasonable deadline to perform, as set out in article 6:82 of the Dutch Civil Code. If a fixed deadline in the contract has passed, or performance has become permanently impossible, default arises automatically without any notice (article 6:83).
Sending a clear, dated notice of default is therefore often the decisive first step: it starts the clock and preserves your right to claim damages or to rescind.
Yes. On a breach the injured party may rescind the contract (ontbinding) under article 6:265 of the Dutch Civil Code, unless the breach is too minor to justify it. Rescission ends both parties’ future obligations and creates undoing obligations for what has already been performed. As an alternative, a continuing contract can often be terminated by notice; the right route depends on the wording of your agreement.
Under article 6:74 of the Dutch Civil Code you can claim the loss the breach caused — both actual loss and lost profit — to put you in the position you would have held had the contract been performed. Damages can be combined with rescission. Where the contract contains a penalty clause, that clause usually fixes the amount payable in advance, which makes enforcement quicker.
Suppose a Dutch manufacturer orders components with delivery on a fixed date, and the supplier delivers three weeks late, halting production. Because the delivery date was a firm deadline, the buyer is entitled to treat the supplier as in default automatically (article 6:83). The buyer can claim the production losses under article 6:74 and, if the delay is serious enough, rescind the remainder of the order under article 6:265. A well-drafted notice of default and a clear paper trail of the loss are what make such a claim succeed.
Whether a breach justifies rescission, damages or continued performance turns on the facts and the contract wording. Our Dutch contract lawyers assess your position, send the right notice of default, and pursue or defend the claim in negotiation or in court. Contact us for a review of your contract and your options.
Not always. A notice of default (ingebrekestelling) is the general rule under article 6:82, but it is not required where a fixed deadline has passed or performance is permanently impossible; default then arises automatically under article 6:83.
Claims based on non-performance are in principle subject to Dutch limitation periods, which for many contractual claims run for five years from the moment the claim becomes due and payable. Because the exact period depends on the type of claim, have it checked before you act.
Yes. Article 6:74 (damages) and article 6:265 (rescission) can be combined: you can rescind the contract for the future and still claim the loss the breach has caused you.
A penalty clause fixes in advance what the party in breach must pay, which avoids having to prove the exact loss. A Dutch court can moderate a penalty that is manifestly excessive, so the drafting of the clause matters.
We recommend that you consult a Dutch lawyer at an early stage and seek advice, as legal proceedings can often be avoided if the legal situation is examined early on. It is also advisable to seek advice from a Dutch specialist lawyer when drafting or drafting contracts under Dutch law, so that the risk of disagreement on the content or interpretation of, for example, purchase agreements, commercial agency agreements, distribution contracts or franchise agreements.
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