Doing Business in the Netherlands 2012 - American Chamber of ...

Doing Business in the Netherlands 2012
options: (i) to claim specific performance (nakoming) or (ii) to (partly)
dissolve the contract (ontbinding). In all cases in which the debtor is
still able to comply with its obligations, the creditor may claim
specific performance. Alternatively, the creditor may (partly) dissolve
the agreement. Upon dissolution of an agreement, the parties are no
longer bound by the obligations arising from the agreement and each
party must undo or repay any obligation that was already performed
by the other party.
Several types of contracts are governed by specific statutory
provisions, which may provide for more specific obligations in case of
non-performance.
23.2.3 Limitation of Liability
The parties to an agreement are in principle free to contractually
exclude or limit their potential liability for damage incurred by
another party, thereby deviating from the liability provisions in the
Code. There are some restrictions and exceptions.
1. In case of agreements with consumers, a limitation of liability
in general terms and conditions can be declared void if the
limitation is deemed to be unreasonably onerous to the
consumer.
2. A limitation of liability drastically sacrificing the interests of
one party to the other party’s interests can be invalid because
it is contrary to public morality (strijd met goede zeden) or
can be declared void because of abuse of circumstances
(misbruik van omstandigheden). A limitation of liability is
usually contrary to public morality if the damage is caused
intentionally or by gross negligence.
3. A limitation of liability cannot be successfully invoked if
invoking such clause would be contrary to the principles of
reasonableness and fairness. Whether this is the case depends
on the circumstances of the case, such as the extent to which
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