What Does Article 6:74 of the Dutch Civil Code Say?
Article 6:74 of the Dutch Civil Code is the basic rule of contractual liability. Every failure to perform an obligation obliges the debtor to compensate the creditor's resulting damage, unless the failure cannot be attributed to the debtor. Where performance is still possible, damages for the failure require that the debtor is in default.
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What Is the Text of Article 6:74?
English translation (unofficial, by the Dutch Law Institute):
1 Every failure in the performance of an obligation obliges the debtor to compensate the damage that the creditor suffers as a result, unless the failure cannot be attributed to the debtor.
2 Insofar as performance is not already permanently impossible, paragraph 1 applies only with due observance of the provisions of the second section concerning the default of the debtor.
Dutch text (Burgerlijk Wetboek Book 6, article 74):
1 Iedere tekortkoming in de nakoming van een verbintenis verplicht de schuldenaar de schade die de schuldeiser daardoor lijdt te vergoeden, tenzij de tekortkoming de schuldenaar niet kan worden toegerekend.
2 Voor zover nakoming niet reeds blijvend onmogelijk is, vindt lid 1 slechts toepassing met inachtneming van hetgeen is bepaald in de tweede paragraaf betreffende het verzuim van de schuldenaar.
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 6:74 Mean?
Article 6:74 sets out when non-performance leads to a duty to pay damages. It applies to every obligation, whatever its source, but its main field is the contract. The word used is tekortkoming: a failure in performance. That covers not performing at all, performing late and performing badly. There is no separate category for defective performance; it is simply another form of failure.
The rule has a built-in exception. The debtor does not have to pay if the failure cannot be attributed to him. When a failure cannot be attributed is decided by Article 6:75, the Dutch provision on force majeure. The structure of the sentence, a rule followed by "unless", means that it is the debtor who has to invoke and substantiate that the failure is not attributable.
What Are the Requirements for Damages under Article 6:74?
Reading Article 6:74 together with the provisions around it, a claim for damages for non-performance requires:
- an obligation that the debtor had to perform;
- a failure in its performance;
- attribution of that failure to the debtor, which is presumed unless Article 6:75 applies;
- default of the debtor, where performance is still possible (paragraph 2);
- damage suffered by the creditor as a result of the failure, which brings in the rules on causation in Article 6:98 and on the extent of damages from Article 6:95 onward.
Attribution is wider than fault. Under Article 6:76 a debtor who uses other people to perform is liable for their conduct as for his own, and under Article 6:77 a failure caused by using an unsuitable thing is attributed to the debtor unless that would be unreasonable.
Why Does Default Matter under Article 6:74?
Paragraph 2 links the claim to the rules on default (verzuim). As long as performance is still possible, the creditor can only claim damages for the failure once the debtor is in default. Under Article 6:81 the debtor is in default while performance is lacking after it became due and the requirements of Articles 6:82 and 6:83 are met.
In practice this usually means a written notice of default under Article 6:82, giving a reasonable period for performance. No notice is needed in the cases of Article 6:83, for example when a fixed deadline for performance expires or when the debtor announces that he will not perform. Where performance has become permanently impossible, default is not required at all.
Default has consequences of its own. Under Article 6:84, an impossibility of performance that arises during default is attributed to the debtor. And under Article 6:87 a creditor can convert the obligation into one to pay replacement damages by written notice, once the debtor is in default.
How Is Article 6:74 Used in Practice?
Article 6:74 is the provision behind most claims for breach of contract under Dutch law. It is often combined with other remedies. A creditor may suspend its own performance under Article 6:262, rescind the contract under Article 6:265, or claim statutory interest for late payment of money under Article 6:119, which is the specific rule for damages caused by late payment of a sum of money.
Contracts frequently change the default position. Limitation and exclusion clauses restrict the damages that can be claimed, and force majeure clauses define which events count as non-attributable. Such clauses are tested against reasonableness and fairness under Article 6:248(2).
Which Provisions Are Related to Article 6:74?
- Article 6:75: when a failure is not attributable (force majeure).
- Articles 6:76 and 6:77: liability for helpers and for unsuitable things.
- Articles 6:81 to 6:83: default, notice of default and default without notice.
- Article 6:87: converting the obligation into replacement damages.
- Articles 6:95 to 6:110: the extent of damages, including causation in Article 6:98.
Related Provisions and Guides
Related articles in this library:
- Article 6:75 of the Dutch Civil Code: Force majeure (non-attributable failure)
- Article 6:82 of the Dutch Civil Code: Notice of default
- Article 6:98 of the Dutch Civil Code: Causation and the scope of liability
- Article 6:119 of the Dutch Civil Code: Statutory interest on late payment
- Article 6:262 of the Dutch Civil Code: Suspension of performance
- Article 6:265 of the Dutch Civil Code: Rescission for non-performance
- Article 6:248 of the Dutch Civil Code: Reasonableness and fairness in contracts
Further reading on dutch-law.com:
- breach of contract and default under Dutch law
- damages for breach of contract
- when a notice of default is required
All articles: the Dutch Civil Code in English.