What Does Article 6:248 of the Dutch Civil Code Say?
Article 6:248 of the Dutch Civil Code governs the legal effects of a contract. Paragraph 1 gives reasonableness and fairness a supplementing effect: a contract has the effects the parties agreed and also those arising from law, custom and reasonableness and fairness. Paragraph 2 gives them a limiting effect: a contractual rule does not apply insofar as that would be unacceptable by standards of reasonableness and fairness, a test courts apply with restraint.
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What Is the Text of Article 6:248?
English translation (unofficial, by the Dutch Law Institute):
1 A contract has not only the legal effects agreed by the parties, but also those which, according to the nature of the contract, arise from the law, custom or the requirements of reasonableness and fairness.
2 A rule binding upon the parties as a result of the contract does not apply insofar as, in the given circumstances, this would be unacceptable according to standards of reasonableness and fairness.
Dutch text (Burgerlijk Wetboek Book 6, article 248):
1 Een overeenkomst heeft niet alleen de door partijen overeengekomen rechtsgevolgen, maar ook die welke, naar de aard van de overeenkomst, uit de wet, de gewoonte of de eisen van redelijkheid en billijkheid voortvloeien.
2 Een tussen partijen als gevolg van de overeenkomst geldende regel is niet van toepassing, voor zover dit in de gegeven omstandigheden naar maatstaven van redelijkheid en billijkheid onaanvaardbaar zou zijn.
Dutch text as in force from 16 July 2026, taken from wetten.overheid.nl, the official source of Dutch legislation. The English translation is not official; in case of doubt the Dutch text prevails.
What Does Article 6:248 Mean?
Article 6:248 of the Dutch Civil Code is the contract-law expression of reasonableness and fairness (redelijkheid en billijkheid), the Dutch counterpart of good faith. It works in two directions:
- Supplementing effect (paragraph 1): a contract binds the parties not only to what they agreed, but also to obligations that arise, given the nature of the contract, from statute, custom and reasonableness and fairness.
- Limiting effect (paragraph 2): a rule that applies between the parties under the contract is set aside insofar as applying it would be unacceptable by standards of reasonableness and fairness in the circumstances.
Article 6:2 of the Dutch Civil Code contains the same principle for all obligations, not only contractual ones: creditor and debtor must behave towards each other in accordance with reasonableness and fairness, and a rule between them does not apply where that would be unacceptable.
How Does the Supplementing Effect Work?
Contracts are rarely complete. Under paragraph 1 the gaps are filled from three sources: statutory default rules for the type of contract, custom in the relevant trade, and reasonableness and fairness. Obligations that are commonly derived from this include duties to inform the other party, to cooperate in performance and to take the other party's legitimate interests into account. What reasonableness and fairness require depends on the nature of the contract and the circumstances.
The supplementing effect is closely linked to contract interpretation. Dutch law does not read a contract by its words alone: what the parties could reasonably infer from each other's statements and conduct, and could reasonably expect of each other, also counts. See reasonableness and fairness under Dutch law.
When Does Reasonableness and Fairness Set a Contract Term Aside?
Paragraph 2 allows a court to disapply a contractual rule, for example an exemption clause, a time limit or a termination right, insofar as applying it would be unacceptable in the circumstances. The word unacceptable sets a high threshold. The Supreme Court has repeatedly held that the standard must be applied with restraint, and in 2021 it overturned a judgment that had set aside exemption clauses in a commercial lease without explaining sufficiently why invoking them was unacceptable. The facts that the failure concerned the core of the performance and that the contract lost its meaning were not enough on their own.
The party relying on paragraph 2 must put forward the facts and circumstances that justify it, and the court must take all circumstances into account. For clauses limiting liability, see exemption clauses under Dutch contract law and limitation of liability.
How Does Article 6:248 Relate to Other Provisions?
Several provisions of the Dutch Civil Code are specific applications of the same idea. The court's power to reduce damages in Article 6:109 is described by the Supreme Court as a special application of the limiting effect of reasonableness and fairness. Where circumstances change after the contract was concluded, Article 6:258 provides a separate route to amend or dissolve the contract. See changed circumstances under Dutch contract law.
Which Court Decisions Apply Article 6:248?
| Authority | Rule |
|---|---|
| Supreme Court of the Netherlands, 2021-01-29, ECLI:NL:HR:2021:153 | The standard of Article 6:248(2) must be applied with restraint. That a failure concerns the core of the performance and deprives the contract of its meaning does not in itself sufficiently explain why invoking an exemption clause is unacceptable. |
Related Provisions and Guides
Related articles in this library:
- Article 6:109 of the Dutch Civil Code: Judicial reduction of damages
- Article 6:265 of the Dutch Civil Code: Rescission for non-performance
Further reading on dutch-law.com:
- reasonableness and fairness under Dutch law
- exemption clauses under Dutch contract law
- limitation of liability
- changed circumstances under Dutch contract law
All articles: the Dutch Civil Code in English.