Breach of contract and default 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 (tekortkoming in de nakoming) 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 (wanprestatie).

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

In the Dutch Civil Code (Burgerlijk Wetboek) 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 (verzuim). When failure in the performance can be attributed to the debtor, the creditor may (under certain conditions) claim damages. The creditor can also use a statutory interest calculator to determine the interest owed on the outstanding amount.

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

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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.

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Frequently Asked Questions

What is breach of contract (wanprestatie) under Dutch law?

Breach of contract, known as wanprestatie or tekortkoming in het nakomen, occurs when a contractual debtor fails to fulfil an obligation on time, in a proper way, or at all. The Dutch Civil Code (Burgerlijk Wetboek) distinguishes between attributable and non-attributable non-performance, each carrying different legal consequences.

When can you claim damages for breach of contract in the Netherlands?

You can claim damages when the failure in performance is attributable to the debtor and the debtor is in default (verzuim). Default typically requires a written notice of default (ingebrekestelling) setting a reasonable deadline for performance. If performance is permanently impossible, no notice of default is needed.

What is a notice of default (ingebrekestelling) under Dutch law?

An ingebrekestelling is a written notice in which the creditor demands performance within a reasonable period. If the debtor still fails to perform after this period expires, the debtor is placed in default (verzuim). This notice is required before claiming damages in most breach of contract situations under Dutch law.

What remedies are available for breach of contract under Dutch law?

Remedies depend on whether the breach is attributable to the debtor. For non-attributable breach, the creditor may demand performance or set aside the contract. For attributable breach, the creditor may also claim damages, request performance plus compensation for delay, or combine setting aside the contract with a damages claim.

What is the difference between attributable and non-attributable non-performance?

Attributable non-performance means the debtor is responsible for the failure to perform, entitling the creditor to claim damages. Non-attributable non-performance, such as force majeure (overmacht), means the debtor cannot be held responsible, limiting the creditor to demanding performance or setting aside the contract without damages.