The right to performance is one of the core issues of Dutch contract law, after all, this right coincides with one of the fundamental principles of contract law, the binding nature of an agreement. In the following article, our attorneys in the Netherlands of MAAK Advocaten explain the subject of non-performance of contractual claims under Dutch law.
Non-performance in the Netherlands
Non-performance of contractual claims in the Netherlands, also called ‘niet-nakoming’ or ‘wanprestatie’ in Dutch, refers to the attributable failure to fulfil a performance obligation. In cross-border transactions in the Netherlands, entrepreneurs also regularly have to deal with customers who do not fulfil agreements. This can be annoying and endanger entire supply chains and lead to unnecessary costs. If one of the parties does not fulfil the agreement and this non-fulfilment can also be attributed to him, i.e. if he is responsible for this situation, this constitutes a breach of contract. This can also mean that the debtor does not perform at all. However, it is also conceivable that the performance is not made in time or that the performance is poor.
Even if it seems obvious to you, the party committing a breach of contract must still be informed that it has not provided any or only insufficient services. This is done by means of a notice of default. This is a formal letter that gives the debtor the last chance to fulfil his obligations and remedy the state of default. However, the reminder in which a debtor is requested to comply with his obligations must contain a “strict deadline” (e.g. 14 days or one month). In any case, this period must be reasonable. This means that the debtor must be given a fair chance to fulfil his obligations. If no payment is made even after the deadline has expired, the debtor is definitely in default. Only from that moment on can the creditor, under Dutch law, use a number of legal remedies to repair his damage.
Although there is no legal objection to informing the contractual partner orally about the breach of contract (for example a faulty delivery), at least if nothing else is stipulated in the General Terms and Conditions or the agreement, we can only advise against this. In order to avoid possible disputes, you should send the supplier a written reply by registered mail. As already mentioned, this is a formal letter in which the facts on which you base the allegation of breach of contract should be described as precisely as possible. What are the defects and how long does the contracting party have to remedy the defect or does a supplier have time to deliver properly after all?
The English-speaking attorneys of MAAK Advocaten can provide you with the best support on the subject of non-performance. We have a wealth of experience with cross-border litigation and as your partner in the Netherlands we can give you competent advice and also draft the above-mentioned dunning letter on your behalf.
Defects in performance under Dutch law
Under Dutch contract law, the non-performance of a contractual obligation can give rise to a number of remedies. If a debtor does not fulfil his contractual obligation in a timely and proper manner or if the obligation is not fulfilled at all, this debtor will not fulfil his obligation and will therefore breach the contract.
In the Dutch Civil Code, the term “deficiency in performance” is used for both attributable and non-attributable non-performance. If a defect becomes apparent that can be attributed to the debtor or if performance has become permanently impossible, non-performance on the part of the debtor is deemed to have occurred from that moment. In all other cases, this is only the case if the debtor is in default. If the debtor can be attributed a failure to perform, the creditor can (under certain conditions) claim damages. In the case of attributable non-performance, the creditor is also responsible for the non-performance.
Do you want to terminate a contract under Dutch law for breach of contract or do you have another question about (cross-border) contracts? You are welcome to contact our English-speaking lawyers in Amsterdam.
Dutch specialist lawyer specialized in contract law
Do you have questions about non-performance of contractual claims under Dutch law, or Dutch contract law? Or do you need specific legal advice in Holland on the subject of non-performance under Dutch law? Our experienced English-speaking specialist Dutch lawyers specialized in contract law will be happy to help you.