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Breach of contract and default - under Dutch law

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  • Breach of contract and default under Dutch law

Failure in the performance of a contractual obligation under Dutch law

Breach of contract 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.

Jan Willem de Groot - lawyer in the Netherlands
25 December 2017

Netherlands contract law

Dutch law of contracts
Precontractual liability Acceptance of an offer Battle of forms under Dutch law Mistake in Dutch contract law Nullity of an agreement Joint and several liability Suretyship under Dutch contract law
Contents of a contract
Reasonableness and fairness General terms under Dutch law Liquidated damages and Dutch law Assignment of a claim Prejudicial Dutch contracts Interpretation of contracts
Performance, breach, remedies
Non-performance of a Dutch contract Acts of God under Dutch law Contract termination for cause Damage claims under Dutch law Restriction of liability Statute of limitations
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Licences under Dutch law Franchises in the Netherlands Contracts of sale under Dutch law Rental agreements under Dutch law Commercial agents in Holland Distribution agreements in Holland
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Other resources on Dutch law
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  • Netherlands Commercial Court - legal procedings in the Netherlands
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