Reasonableness and fairness under Dutch contract law: Articles 6:2, 6:248 and 6:258 of the Civil Code

Reasonableness and fairness (redelijkheid en billijkheid) is the Dutch counterpart of good faith in contract law. It governs every contractual relationship: it helps determine what the contract means, it adds rights and duties the parties did not write down, and in exceptional cases it sets aside a contractual rule whose application would be unacceptable. The rules are in Articles 6:2 and 6:248 of the Dutch Civil Code. A separate provision, Article 6:258, allows the court to amend or dissolve a contract because of unforeseen circumstances.

Reasonableness and fairness at a glance

• Interpretation: a contract means what the parties could reasonably expect of each other, not only what the words say (the Haviltex standard).
• Supplementing effect: a contract also has the effects that follow from law, custom and reasonableness and fairness (Article 6:248(1)).
• Limiting effect: a contractual rule does not apply insofar as that would be unacceptable by standards of reasonableness and fairness (Article 6:248(2)).
• Unforeseen circumstances: the court can amend or dissolve a contract (Article 6:258).
• High threshold: "unacceptable" means that courts apply the limiting effect with restraint.
• Objective test: what reasonableness and fairness require takes account of generally recognised legal principles, Dutch legal convictions and the interests involved (Article 3:12).

On this page

Where Is Reasonableness and Fairness Laid Down in Dutch Law?

In two general provisions. Article 6:2 of the Dutch Civil Code applies to every obligation between a creditor and a debtor; Article 6:248 applies specifically to contracts. Both have a supplementing and a limiting side.

Under Article 3:12, the court takes into account generally recognised legal principles, the legal convictions current in the Netherlands, and the social and personal interests involved in the case. The English text of Article 6:248 with a short explanation is in our Dutch Civil Code library.

How Does Reasonableness and Fairness Affect the Interpretation of a Contract?

Dutch law does not interpret a contract by its words alone. In the Haviltex judgment, the Supreme Court held that what matters is the meaning the parties could reasonably give to the provisions in the circumstances and what they could reasonably expect of each other (HR 13 March 1981, ECLI:NL:HR:1981:AG4158).

The Supreme Court added that it can be relevant to which social circles the parties belong and what legal knowledge can be expected of them. The text can therefore carry more weight in a contract between professional parties advised by lawyers than in an agreement between private individuals, but it is never the only factor. More on this in contract interpretation under Dutch law.

What Is the Supplementing Effect?

A contract has not only the legal effects the parties agreed on, but also those that, given the nature of the contract, follow from the law, from custom, or from the requirements of reasonableness and fairness (Article 6:248(1)).

This is how duties arise that the contract does not mention: to warn the other party of a risk you are aware of, to cooperate so the other party can perform, to inform, or to keep confidential information obtained during the relationship. The supplementing effect fills gaps; it does not rewrite what the parties clearly agreed.

When Can a Contract Term Be Set Aside?

A rule that applies between the parties as a result of their contract does not apply insofar as that would be unacceptable in the circumstances by standards of reasonableness and fairness (Article 6:248(2)). The word "unacceptable" sets a high threshold: the court applies the limiting effect with restraint.

The limiting effect can apply to any rule that binds the parties because of the contract, including terms the parties negotiated themselves and statutory rules that apply to the contract. It is invoked in practice against, for example:

• an exemption clause relied on in a case of intent or gross negligence;
• a strict deadline or formal requirement used to escape an obligation on a technicality;
• a termination right exercised for a trivial breach.

Whether the limiting effect applies is decided case by case, weighing all the circumstances of the case, such as the nature of the contract, the positions of the parties and how the term came about.

What About Unforeseen Circumstances?

At the request of a party, the court can amend the effects of a contract or dissolve it, in whole or in part, because of unforeseen circumstances of such a nature that the other party, by standards of reasonableness and fairness, may not expect the contract to be maintained unchanged (Article 6:258(1)).

• The circumstances must have been unforeseen, meaning not provided for in the contract.
• The court does not intervene insofar as the circumstances are, by the nature of the contract or common opinion, for the account of the party invoking them (Article 6:258(2)).
• The amendment or dissolution can be given retroactive effect and can be made subject to conditions (Articles 6:258(1) and 6:260).

Unlike Article 6:248, Article 6:258 requires a court decision: a party cannot simply declare the contract amended. See changed circumstances under Dutch law.

Does Reasonableness and Fairness Apply Before the Contract Is Signed?

Yes. Negotiating parties must let their conduct be determined in part by each other's legitimate interests. Each party is free to break off negotiations, unless that would be unacceptable because of the other party's justified reliance on the contract being concluded, or because of the other circumstances of the case (HR 12 August 2005, CBB/JPO, ECLI:NL:HR:2005:AT7337).

The court considers to what extent and how the breaking party contributed to that reliance, its own legitimate interests, and whether unforeseen circumstances arose during the negotiations. More on the consequences: liability for breaking off negotiations, and on documents that frame negotiations: letter of intent and subject to contract.

Is "Good Faith" the Same as Reasonableness and Fairness?

Not in current Dutch statutory language. The Civil Code uses "reasonableness and fairness" for the standard of conduct between parties, and "good faith" (goede trouw) for a person's state of knowledge: good faith is absent if the person knew, or in the circumstances ought to have known, the relevant facts or rights (Article 3:11).

Under Article 3:11, a person who had good reason to doubt is treated as someone who ought to have known, even if an inquiry was impossible. In English-language contracts and commentary, "good faith" is nevertheless often used to refer to the Dutch standard of reasonableness and fairness.

How Does This Differ From English Contract Law?

Dutch law has a general standard of reasonableness and fairness that applies to every contract, in all phases. English law has no general duty of good faith in contract; it deals with unfairness through specific rules and, in some cases, implied terms.

For international parties the practical consequence is that, under a Dutch-law contract, the written text is the starting point but not always the end point. A term that is clear on paper can be supplemented, or exceptionally set aside, when the circumstances require it. Parties used to English law should take this into account when choosing the governing law and when drafting clauses they intend to rely on strictly.

What Does This Mean in Practice?

1. Write down what matters: the supplementing effect fills gaps, so a clear written arrangement leaves less room for surprises.
2. Explain the purpose of important clauses, such as exemption and termination clauses; the circumstances in which they were agreed play a role later.
3. Do not rely on a clause in a way that looks opportunistic in the circumstances; the limiting effect targets exactly that.
4. Document negotiations and reservations; the reliance of the other party is assessed on what it could reasonably infer.
5. For long-term contracts, agree how changed circumstances will be dealt with, rather than leaving it to Article 6:258.

For the remedies when a party does not perform, see termination for breach and damages for breach of contract.

Key Legal Sources

• Article 6:2 of the Dutch Civil Code, reasonableness and fairness in obligations
• Article 6:248 of the Dutch Civil Code, supplementing and limiting effect in contracts
• Articles 6:258 and 6:260 of the Dutch Civil Code, unforeseen circumstances
• Articles 3:11 and 3:12 of the Dutch Civil Code, good faith and the factors for reasonableness and fairness
• HR 13 March 1981, ECLI:NL:HR:1981:AG4158 (Haviltex), interpretation
• HR 12 August 2005, ECLI:NL:HR:2005:AT7337 (CBB/JPO), breaking off negotiations