Rescinding a contract under Dutch law

Published on 14 February 2025 · Last updated 24 October 2026

Under Dutch law, you can rescind a contract (ontbinding) if the other party fails to perform an obligation, unless the failure, given its special nature or minor importance, does not justify rescission (Article 6:265(1) Dutch Civil Code). If performance is still possible, the other party must first be in default. Rescission is not the same as annulment (vernietiging).

What does rescinding a contract involve?

1. Mutual contract: rescission is a remedy for mutual (reciprocal) contracts (wederkerige overeenkomsten), in which each party undertakes an obligation in order to obtain the other party’s performance (Article 6:261(1)).
2. Ground: every failure in the performance of an obligation allows the other party to rescind the contract in whole or in part, unless the failure, given its special nature or minor importance, does not justify rescission and its consequences (Article 6:265(1)). The failure does not have to be attributable to the other party.
3. Default: to the extent that performance is not permanently or temporarily impossible, the right to rescind only arises once the other party is in default (verzuim) (Article 6:265(2)). Default usually arises after a written notice of default that gives a reasonable period for performance, and performance does not follow within that period (Article 6:82(1)). In some cases default arises without notice, for example when a fixed deadline expires, unless the deadline was meant differently (Article 6:83).
4. Burden of proof: the party that rescinds must state and, if necessary, prove the failure and, where required, the default. The other party must state and, if necessary, prove the circumstances that mean the failure does not justify rescission (Supreme Court (Hoge Raad) 28 September 2018, ECLI:NL:HR:2018:1810, para. 3.6).
5. Partial rescission: a contract can be rescinded in part. This means a proportional reduction of the mutual performances in quantity or quality (Article 6:270).
6. No retroactive effect: rescission does not work retroactively (Article 6:269). If the court pronounces rescission, an offer to perform made after rescission was claimed has no effect.
7. Undoing performances: rescission releases the parties from the obligations affected by it. Performances already received must be undone (Article 6:271); if that is impossible by their nature, their value must be paid (Article 6:272).
8. Damages: the party whose failure gave the ground for rescission must compensate the damage the other party suffers because the contract is rescinded instead of performed (Article 6:277(1)). If the failure is not attributable, this applies only within the limits of Article 6:78 (Article 6:277(2)).
9. How: rescission takes place by a written declaration of the party entitled to rescind; if the contract was concluded electronically, an electronic declaration is also possible. The court can also pronounce rescission on that party’s claim (Article 6:267).

A note on terms: in English, “rescission” can also mean annulment, which undoes a contract from the start. Dutch law has two separate remedies. Rescission for non-performance (ontbinding, also translated as termination or dissolution) has no retroactive effect. Annulment (vernietiging) applies when the contract was concluded under a defect, such as mistake (Article 6:228) or threat, fraud or undue influence (Article 3:44), and works back to the moment the contract was concluded (Article 3:53(1)). Termination by notice (opzegging) is different again: it ends a contract for the future on the basis of a right to terminate, and does not require a breach.

What is the difference between rescission, annulment and termination by notice under Dutch law?

Rescission, annulment and termination by notice all end a contract, but they rest on different grounds and have different effects:

1. Ground: rescission requires a failure in performance (Article 6:265(1)). Annulment requires a defect when the contract was formed, such as mistake, threat, fraud or undue influence (Articles 6:228 and 3:44). Termination by notice requires a right to terminate, usually agreed in the contract or provided by law, but no failure.
2. Default: rescission requires default if performance is still possible (Article 6:265(2)). Annulment and termination by notice do not.
3. How: rescission by written declaration or court decision (Article 6:267). Annulment by an out-of-court declaration or a court judgment (Article 3:49). Termination by notice as agreed in the contract or provided by law.
4. Effect in time: rescission has no retroactive effect, but performances already received must be undone (Articles 6:269 and 6:271). Annulment works retroactively (Article 3:53(1)); if the consequences can hardly be undone, the court can, on request, deny it effect in whole or in part (Article 3:53(2)). Termination by notice only ends the contract for the future.
5. Partial application: rescission can also be partial (Articles 6:265(1) and 6:270).
6. Damages: after rescission, the party whose failure was the ground for it must compensate the resulting damage (Article 6:277). Whether termination by notice involves compensation depends on the contract and the circumstances.
7. Time limits: the legal action for rescission becomes time-barred five years from the start of the day following the day on which the creditor became aware of the failure, and in any case twenty years after the failure arose (Article 3:311(1)). The action for annulment becomes time-barred after three years, for example three years after a mistake or fraud was discovered (Article 3:52(1)).

Which remedy fits depends on what went wrong: performance after the contract was concluded (rescission) or the way the contract was formed (annulment). Establishing a breach comes first, and that is covered in breach of contract under Dutch law.

How do you rescind a contract out of court?

Out-of-court rescission (buitengerechtelijke ontbinding) takes place by a written declaration from the party entitled to rescind (Article 6:267(1)). If the contract was concluded electronically, the declaration can also be made electronically. The declaration only takes effect once it has reached the other party, unless it did not reach that party (in time) because of its own actions, the actions of persons for whom it is liable, or other circumstances concerning that party that justify it bearing the disadvantage (Article 3:37(3)). Registered mail or service by a bailiff helps you prove receipt. Some contracts can only be rescinded by the court, for example a lease of a building where the tenant has failed to perform, apart from limited exceptions (Article 7:231(1) DCC), and an employment contract (Article 7:686 DCC).

State clearly that you rescind, which contract or which part of it, and which failure you rely on. If it later turns out that the conditions for rescission were not met, the declaration has no effect, and your own refusal to perform may then be a breach on your side. If you are unsure, you can ask the court to decide (Article 6:267(2)).

When should you ask a court to rescind the contract?

The court can pronounce rescission on the claim of the entitled party (Article 6:267(2)). If the court grants the claim, an offer to perform made after rescission was claimed has no effect (Article 6:269). Note the time limit: the legal action for rescission becomes time-barred five years from the start of the day following the day on which you became aware of the failure, and in any case twenty years after the failure arose (Article 3:311(1)). After that, out-of-court rescission is also no longer possible, except to defend against a claim or other measure based on the contract (Article 6:268).

You cannot rescind on the basis of a failure for which you yourself are in default as a creditor (schuldeisersverzuim), subject to the exception in Article 6:266(2).

What are the consequences of rescinding a contract?

• Rescission releases the parties from the obligations affected by it. Obligations already performed keep their legal basis, but each party must undo the performances it has received (Article 6:271).
• If the nature of a performance excludes undoing it, its value at the time of receipt must be paid instead. If the performance did not meet the obligation, this is limited to the value it actually had for the recipient (Article 6:272).
• From the moment a party must reasonably take rescission into account, it must take care, as a careful debtor, that the performance can be undone (Article 6:273).
• The party whose failure gave the ground for rescission must compensate the damage caused by the rescission (Article 6:277(1)). If the failure is not attributable to it, it must compensate the damage only up to the amount of any advantage it gained in connection with the failure that it would not have had with proper performance (Articles 6:277(2) and 6:78).
• The legal action to undo performances becomes time-barred five years from the start of the day following the day of rescission (Article 3:311(2)).

Frequently asked questions about rescinding a contract under Dutch law

Can you rescind a contract under Dutch law without going to court?

Yes, as a rule. A written declaration to the other party is enough (Article 6:267(1) Dutch Civil Code); for a contract concluded electronically, an electronic declaration is also possible. You can also ask the court to pronounce rescission (Article 6:267(2)). If the other party disputes the rescission, the court can ultimately decide whether the conditions were met. Some contracts can only be rescinded by the court, such as a lease of a building where the tenant has failed to perform (Article 7:231(1)) and an employment contract (Article 7:686).

Do you need to send a notice of default before rescinding a contract?

Only if performance is still possible: then the other party must first be in default (Article 6:265(2)). Default usually arises after a written notice with a reasonable period for performance, if performance does not follow within that period (Article 6:82(1)). Default is not required if performance is permanently or temporarily impossible. And default arises without notice if a fixed deadline has expired (unless it was meant differently), or if you must conclude from a statement of the other party that it will not perform (Article 6:83(a) and (c)).

Does rescission have retroactive effect under Dutch law?

No (Article 6:269). Rescission releases the parties from the affected obligations, and performances already received must be undone (Article 6:271). Annulment (vernietiging), by contrast, works back to the moment the contract was concluded (Article 3:53(1)).

What is the difference between rescission and annulment of a contract?

Rescission (ontbinding) is a remedy for non-performance of a validly concluded contract (Article 6:265). Annulment (vernietiging) concerns a defect when the contract was formed, such as mistake (Article 6:228) or threat, fraud or undue influence (Article 3:44). Both can be invoked by an out-of-court declaration or in court (Articles 6:267 and 3:49), but only annulment works retroactively (Article 3:53(1)).

Can you claim damages after rescinding a contract?

Yes. The party whose failure was the ground for rescission must compensate the damage you suffer because the contract is rescinded instead of performed (Article 6:277(1)). If the failure cannot be attributed to that party, it must compensate your damage only up to the amount of any advantage it gained in connection with the failure that it would not have had with proper performance (Articles 6:277(2) and 6:78).

Primary sources

• Dutch Civil Code (Burgerlijk Wetboek), Book 6: Articles 6:78, 6:82, 6:83, 6:228, 6:261, 6:265, 6:266, 6:267, 6:268, 6:269, 6:270, 6:271, 6:272, 6:273 and 6:277
• Dutch Civil Code, Book 3: Articles 3:37, 3:44, 3:49, 3:52, 3:53 and 3:311; Book 7: Articles 7:231 and 7:686
• Supreme Court (Hoge Raad) 28 September 2018, ECLI:NL:HR:2018:1810 (burden of proof under Article 6:265(1), para. 3.5-3.6)

Who can help you rescind a contract?

For any legal inquiries or support in the Netherlands regarding the rescinding of a contract under Dutch law, please feel free to contact our adept team at MAAK Advocaten.