Breach of contract and default - under Dutch law

Failure in the performance of a contractual obligation under Dutch law

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.

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. 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.