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

8 Commercial Contracts
8.1 General Dutch Contract Law
Doing Business in the Netherlands 2012
Dutch contract law is rather liberal and allows for substantial freedom
of contract. For the majority, the rules of the Dutch Civil Code are
default rules that apply if and to the extent that the parties have not
arranged for a specific topic in their contract. However, for some
types of contracts, such as consumer contracts (see section 8.3 below),
commercial agency contracts (see section 8.5 below), lease contracts,
insurance contracts and transport-related contracts, (partly) mandatory
legislation (i.e., that cannot be deviated from by contract) exists.
It is furthermore important to note the principles of reasonableness
and fairness (redelijkheid en billijkheid) that underlie Dutch contract
law. These principles may either supplement a contract agreed
between the parties or – in exceptional circumstances – prevent a
party from relying on a contractual clause (see with regard to
limitations of liability, chapter 22).
Besides the reasonableness and fairness, some other distinctive
(although not mandatory) features of Dutch law are:
� Termination: In the event of a breach, the non-breaching party
is allowed to terminate (dissolve) the contract, unless the
breach does not justify the termination and its consequences.
This also applies in the event of force majeure.
� Specific performance: In the event of breach of contract, the
non-breaching party may also claim specific performance.
� Penalties: Parties are free to agree on a penalty. The amount
of the penalty does not have to resemble the expected
damages, although a court is entitled to reduce the amount of
the penalty. Unless agreed otherwise, the penalty replaces the
right to specific performance and full damages.
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