Under Dutch law, the entrepreneur can limit or effectively exclude his liability in a commercial contract, or in the General Terms and Conditions for indirect damage (consequential damage). However, such a limitation of liability under Dutch law is not possible under all legal systems. The background to this is that liability for compliance with the so-called essential contractual obligations cannot be excluded by General Terms and Conditions.
What Are Liability Clauses Under Dutch Law?
Liability clauses are contractual provisions that define and often limit the extent to which one party can be held accountable for breaches of contract or negligence. In Dutch law, such clauses are integral to managing risk and responsibility between parties. To be enforceable, these clauses must not only be clearly stated but also fair and reasonable under the circumstances of the contract. The Dutch Civil Code provides the legal framework, stating that parties are free to deviate from statutory liability to a certain extent, except where limitations would contravene mandatory law or good morals.
How Does Dutch Law Treat Liability Clauses in Commercial Contracts?
Commercial contracts in the Netherlands often include liability clauses that cap the amount one party has to pay to the other if they fail to meet their contractual obligations. For example, a typical clause might limit liability to the amount paid under the contract or a set figure. However, Dutch law prohibits the exclusion or limitation of liability for intentional acts or gross negligence. This legal stance ensures that fundamental fairness is maintained, protecting parties from being excessively penalized for minor breaches while holding them accountable for severe misconduct.
Can You Give Examples of Enforceable Liability Clauses?
Liability clauses are frequently seen in IT service agreements, where providers limit their liability for damages caused by service interruptions, data losses, or security breaches. For instance, a clause might state that the service provider is only liable for direct damages and not for consequential losses, such as lost profits or reputational damage. In construction contracts, liability clauses might limit a contractor’s responsibility for delays to a certain percentage of the total contract value. These real-life applications highlight the necessity for specificity and mutual understanding in drafting enforceable clauses under Dutch law.
General terms and conditions under Dutch law
Not in all circumstances a limitation of liability under Dutch law is therefore valid. This gives rise to the following practical problem: if another legal system is applicable, the seller invokes the limitation of liability for consequential damages in his Dutch General Terms and Conditions, but the customer invokes the other legal system to prove that the supplier has breached an essential contractual obligation, it is possible that the supplier’s limitation of liability is invalid, with the consequence that the supplier is liable in accordance with the statutory provisions and is therefore fully liable.
Battle of forms in the Netherlands
In order to prevent liability risks such as these (but also in the event of a battle of forms) and to ensure that your general terms and conditions can be used for both the Dutch and other markets, the attorneys of MAAK Advocaten in the Netherlands will be happy to help you and support you in all matters concerning general terms and conditions under both English, German and Dutch law.
Dutch business attorneys in the Netherlands
For any legal inquiries or support in the Netherlands regarding the limitation of liability under Dutch law, 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.