What Does Article 6:82 of the Dutch Civil Code Say?
Article 6:82 of the Dutch Civil Code governs the notice of default (ingebrekestelling). The debtor falls into default when he receives a written warning giving a reasonable period for performance and does not perform within it. If a warning would be pointless, a written statement holding him liable is enough.
On this page
What Is the Text of Article 6:82?
English translation (unofficial, by the Dutch Law Institute):
1 Default commences when the debtor is given notice of default by a written warning in which he is given a reasonable period for performance, and performance does not take place within that period.
2 If the debtor is temporarily unable to perform, or if it appears from his attitude that a warning would be futile, notice of default may be given by a written communication showing that he is held liable for the failure to perform.
Dutch text (Burgerlijk Wetboek Book 6, article 82):
1 Het verzuim treedt in, wanneer de schuldenaar in gebreke wordt gesteld bij een schriftelijke aanmaning waarbij hem een redelijke termijn voor de nakoming wordt gesteld, en nakoming binnen deze termijn uitblijft.
2 Indien de schuldenaar tijdelijk niet kan nakomen of uit zijn houding blijkt dat aanmaning nutteloos zou zijn, kan de ingebrekestelling plaatsvinden door een schriftelijke mededeling waaruit blijkt dat hij voor het uitblijven van de nakoming aansprakelijk wordt gesteld.
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 6:82 Mean?
Under Dutch law, a debtor who performs late is not automatically in default (verzuim). Article 6:81 provides that he is in default while performance is lacking after it became due and the requirements of Articles 6:82 and 6:83 are met. Article 6:82 contains the main route: a written notice of default (ingebrekestelling) that gives the debtor a last, reasonable period to perform.
The Supreme Court described the function of the notice in 2019: it gives the debtor a final period for performance and so fixes the moment up to which performance is still possible without a failure. If the debtor does not perform within that period, he is in default from that moment.
What Must a Notice of Default Contain?
- Writing. The statute requires a written warning. An oral reminder is not a notice of default.
- A clear demand for performance of the obligation concerned.
- A reasonable period within which to perform. What is reasonable depends on the circumstances. A relevant circumstance is how much time the debtor already had to prepare before the warning; a debtor is usually not free to postpone preparations until he is warned.
Paragraph 2 provides a lighter form. If the debtor is temporarily unable to perform, or his attitude shows that a warning would be pointless, a written communication holding him liable for the failure to perform is sufficient. No period for performance needs to be given in that case.
When Is No Notice of Default Needed?
Article 6:83 lists three situations in which default arises without notice: when a fixed deadline for performance expires, unless the deadline was meant differently; when the obligation arises from a tort or is an obligation to pay damages under Article 6:74(1) and is not performed immediately; and when the creditor must infer from a statement of the debtor that he will fail to perform.
The Supreme Court held in 2019 that this list is not exhaustive. In the circumstances of a case, relying on the absence of a notice can be unacceptable by standards of reasonableness and fairness, or it can be accepted that no notice was needed and the debtor fell into default without one. The rules are meant to let the court reach a reasonable solution in cases where the parties acted without detailed knowledge of the law.
Why Does Default Matter?
Default is the gateway to several remedies. Damages for a failure where performance is still possible require default under Article 6:74(2). Rescission requires default under Article 6:265(2), unless performance is permanently or temporarily impossible. Statutory interest on an unpaid sum runs over the period of default under Article 6:119. And an impossibility arising during default is attributed to the debtor under Article 6:84.
A creditor that is unsure whether a deadline was a fixed deadline is therefore usually well advised to send a notice of default anyway. It costs little and removes an argument.
What Does a Notice of Default Look Like?
There is no prescribed wording. What matters is that the notice is in writing, identifies the obligation, demands performance and gives a period that is reasonable in the circumstances. A short example:
[Date]
Dear [name],
Under our agreement of [date] you were obliged to [describe the performance, for example deliver the goods listed in order number ...] by [date]. You have not done so.
We hereby give you notice of default within the meaning of Article 6:82 of the Dutch Civil Code and call upon you to perform in full within [period, for example 14 days] of the date of this letter. If you do not perform within that period, you will be in default and we reserve all rights, including the right to claim damages and to rescind the agreement.
Yours sincerely,
[Name]
Keep proof that the notice reached the debtor. A notice that is too vague about what must be done, or that gives a period that is plainly too short, may fail to put the debtor in default. This example is a starting point and not legal advice.
Which Court Decisions Apply Article 6:82?
| 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 6:74 of the Dutch Civil Code: Liability for non-performance
- Article 6:265 of the Dutch Civil Code: Rescission for non-performance
- Article 6:119 of the Dutch Civil Code: Statutory interest on late payment
- Article 6:75 of the Dutch Civil Code: Force majeure (non-attributable failure)
Further reading on dutch-law.com:
All articles: the Dutch Civil Code in English.