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Breach of contract and default - under Dutch law

  • Dutch law
  • Contract law
  • Breach of contract

Failure in the performance of a contractual obligation under Dutch law

Breach of contract under Dutch law

What is non-performance of a contract in the Netherlands?

Under Dutch contract law failure in the performance of a contractual obligation may give rise to a number of remedies. When a contractual debtor does not fulfil his contractual obligation on time and in a proper way, or when the obligation is not fulfilled at all, this debtor fails in the performance of his obligation, and is in breach of contract.


When can you claim damages because of default under Dutch contract law?

In the Dutch Civil Code the term ‘failure in the performance’ is used for both attributable and non-attributable non-performance. When a failure in the performance cannot be attributed to the debtor or when performance is permanently impossible, there is a failure in the performance right away. In all other cases, there is only a failure in the performance of a debtor, when the debtor is in default. When failure in the performance can be attributed to the debtor, the creditor may (under certain conditions) claim damages.

In case of an attributable non-performance the debtor is responsible.


What are the legal remedies in case of non-performance under Dutch law?

In case of a failure in the performance which is not attributable to the debtor, the only remedies available are:

  1. performance, and
  2. setting aside of the contract.

In case of attributable non-performance the creditor may seek more remedies under Dutch law:

  1. performance
  2. performance and compensation for late performance
  3. damages instead of performance
  4. setting aside of the contract (in Dutch: ‘ontbinding wegens niet-nakoming’)
  5. setting aside of the contract and damages.

Jan Willem de Groot - lawyer in the Netherlands
March 3rd, 2021

About the author

Dutch lawyer in the Netherlands - Jan Willem de Groot

Jan Willem de Groot is a lawyer in the Netherlands, author and speaker. As a Dutch lawyer, his main areas of expertise are contract law and litigation in the Netherlands.

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