What Does Article 6:262 of the Dutch Civil Code Say?
Article 6:262 of the Dutch Civil Code allows a party to a mutual contract to suspend its own performance when the other party fails to perform. In case of partial or improper performance, suspension is only allowed insofar as the failure justifies it.
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What Is the Text of Article 6:262?
English translation (unofficial, by the Dutch Law Institute):
1 If one of the parties fails to perform its obligation, the other party is entitled to suspend the performance of its obligations that correspond to it.
2 In the case of partial or improper performance, suspension is permitted only insofar as the failure justifies it.
Dutch text (Burgerlijk Wetboek Book 6, article 262):
1 Komt een der partijen haar verbintenis niet na, dan is de wederpartij bevoegd de nakoming van haar daartegenover staande verplichtingen op te schorten.
2 In geval van gedeeltelijke of niet behoorlijke nakoming is opschorting slechts toegelaten, voor zover de tekortkoming haar rechtvaardigt.
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 6:262 Mean?
Article 6:262 contains the exception of non-performance (exceptio non adimpleti contractus) for mutual contracts. A party that does not receive what it was promised does not have to keep performing its own, corresponding obligations. It may hold back its performance until the other party performs.
Suspension (opschorting) is a means of pressure, not an ending of the contract. The contract stays in force, and once the other party performs, the suspending party must perform too.
What Are the Requirements for Suspension?
- A mutual contract in which the obligations of the parties correspond to each other.
- A failure by the other party to perform its obligation. Unlike damages and rescission, suspension under Article 6:262 does not require that the other party is in default.
- Proportionality where performance is partial or improper: suspension is permitted only insofar as the failure justifies it (paragraph 2). Withholding the entire price because of a minor defect can go further than the failure justifies.
How Does Article 6:262 Relate to Other Rights of Suspension?
Two other provisions give related rights. Article 6:263 allows the party that must perform first to suspend if, after the contract was concluded, it learns of circumstances giving good reason to fear that the other party will not perform its corresponding obligations. And Article 6:52 contains a general right of suspension outside mutual contracts, for a debtor with a claim on his creditor that is due, if there is sufficient connection between the claim and the obligation.
All of these rights are subject to reasonableness and fairness. A party that suspends without a sufficient basis may itself be failing to perform, with the risk that the other side then relies on Article 6:265 or Article 6:74.
How Is Suspension Used in Practice?
Suspension is often the first step when a counterparty does not perform: stop delivering, or stop paying, until the other side performs. It is quick and requires no court. It is also frequently regulated by contract, for example in general terms and conditions that allow a supplier to suspend deliveries if invoices are not paid.
The safest approach is to state in writing that and why performance is being suspended, and to limit the suspension to what the failure justifies.
Related Provisions and Guides
Related articles in this library:
- Article 6:265 of the Dutch Civil Code: Rescission for non-performance
- Article 6:74 of the Dutch Civil Code: Liability for non-performance
- Article 6:75 of the Dutch Civil Code: Force majeure (non-attributable failure)
- Article 6:82 of the Dutch Civil Code: Notice of default
Further reading on dutch-law.com:
All articles: the Dutch Civil Code in English.