What Does Article 6:265 of the Dutch Civil Code Say?
Article 6:265 of the Dutch Civil Code gives a party the right to rescind a contract, wholly or partly, for any failure of the other party to perform, unless the failure is too minor or special to justify it. Where performance is still possible, the other party must first be in default.
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What Is the Text of Article 6:265?
English translation (unofficial, by the Dutch Law Institute):
1 Every failure of a party in the performance of one of its obligations gives the other party the right to rescind the contract in whole or in part, unless the failure, given its special nature or minor significance, does not justify such rescission and its consequences.
2 Insofar as performance is not permanently or temporarily impossible, the right to rescind arises only when the debtor is in default.
Dutch text (Burgerlijk Wetboek Book 6, article 265):
1 Iedere tekortkoming van een partij in de nakoming van een van haar verbintenissen geeft aan de wederpartij de bevoegdheid om de overeenkomst geheel of gedeeltelijk te ontbinden, tenzij de tekortkoming, gezien haar bijzondere aard of geringe betekenis, deze ontbinding met haar gevolgen niet rechtvaardigt.
2 Voor zover nakoming niet blijvend of tijdelijk onmogelijk is, ontstaat de bevoegdheid tot ontbinding pas, wanneer de schuldenaar in verzuim is.
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 6:265 Mean?
Rescission (ontbinding) is the remedy that lets a party get out of a contract because the other party does not perform. English texts also call it termination for breach. Article 6:265 makes it available for every failure, whether or not it can be attributed to the debtor. Force majeure under Article 6:75 therefore excludes damages, but not rescission.
What Are the Requirements for Rescission?
- A failure in the performance of an obligation under the contract.
- Default of the debtor, where performance is still possible (paragraph 2). This usually requires a written notice of default under Article 6:82, unless an exception applies.
- No exception: the failure must not be so special in nature or so minor that it does not justify rescission and its consequences. The debtor invokes this exception; the court applies it with restraint in the sense that rescission is the rule.
Rescission can be partial. That is often the proportionate answer where only part of the performance fails.
How Is a Contract Rescinded?
Under Article 6:267 rescission takes place by a written declaration of the party entitled to it, or electronically if the contract was concluded electronically. It can also be pronounced by the court on that party's claim. No court is needed: the declaration itself ends the contract, but the other party can challenge whether the requirements were met.
What Are the Consequences of Rescission?
Under Article 6:269 rescission has no retroactive effect. Under Article 6:271 it releases the parties from the obligations it affects; performances already made keep their legal basis, but the parties must undo them. In addition, under Article 6:277 the party whose failure gave the ground for rescission must compensate the other party for the damage caused by the fact that the contract is rescinded instead of performed. If that failure was not attributable, this applies only within the limits of Article 6:78.
What Did the Supreme Court Say about Default and Rescission?
In 2019 the Supreme Court decided a dispute between a main contractor and a subcontractor after a period of discussion about the timing and quality of the work. It restated that the right to rescind arises only when the debtor is in default, unless performance is impossible, and that the length of the period in a notice of default depends on the circumstances, including the time the debtor already had to prepare. It also held that default can arise without a notice where reasonableness and fairness require that. For a creditor, the safe course remains a clear written notice with a reasonable period before rescinding.
Which Court Decisions Apply Article 6:265?
| Authority | Rule |
|---|---|
| Supreme Court of the Netherlands, 2019-10-11, ECLI:NL:HR:2019:1581 (Fraanje/Alukon) | A notice of default gives the debtor a last period for performance. How long that period must be depends on the circumstances, including the time the debtor already had to prepare. Article 6:83 is not an exhaustive list: reasonableness and fairness can mean that default arises without a notice. |
Related Provisions and Guides
Related articles in this library:
- Article 6:82 of the Dutch Civil Code: Notice of default
- 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 6:262 of the Dutch Civil Code: Suspension of performance
- Article 6:248 of the Dutch Civil Code: Reasonableness and fairness in contracts
Further reading on dutch-law.com:
All articles: the Dutch Civil Code in English.