Can you invoke force majeure due to the coronavirus?

You may invoke force majeure if you are unable to keep an appointment due to a cause that is not attributable to you (Article 6:75 of the Dutch Civil Code). Whether this is successful depends heavily on the circumstances as well as on what you have stipulated in your agreement and general terms and conditions.

What is force majeure?

Force majeure means that a failure to perform cannot be attributed to you (Article 6:75 of the Dutch Civil Code): the cause is not due to your fault and is not for your account by virtue of the law, a legal act, or general practice. Think of unforeseen events such as natural disasters, a pandemic, or government measures that make performance impossible.

When is a plea of ​​force majeure successful?

A plea of ​​force majeure is unlikely to succeed. The mere fact that performance becomes more expensive or difficult is usually not sufficient; it is required that performance is reasonably impossible and that the cause lies outside your sphere of risk. The judge assesses whether this is the case based on the facts.

The importance of your agreement

Often, the contract itself determines what constitutes force majeure. In your general terms and conditions, you can define force majeure more broadly or narrowly and regulate the consequences: suspension, a longer term, or termination without liability for damages. A well-drafted force majeure clause prevents much dispute.

Unforeseen circumstances

In addition to force majeure, the law recognizes unforeseen circumstances (Article 6:258 of the Dutch Civil Code). Under this provision, the court may modify or dissolve an agreement if unchanged performance cannot reasonably be expected. This, too, requires a tailored approach and is applied with restraint.

Frequently Asked Questions

Is a pandemic automatically force majeure?

Not automatically. It depends on the specific consequences for performance and on what you have arranged contractually.

Does a force majeure clause help?

Yes. In your general terms and conditions, you can define force majeure and regulate the consequences, which significantly improves your position.

What is the difference compared to unforeseen circumstances?

In the event of force majeure, you are not required to perform; in the event of unforeseen circumstances (Article 6:258 of the Dutch Civil Code), the court may modify or dissolve the agreement.

Want to properly arrange your force majeure clause?

Our legal experts draft strong general terms and conditions with a force majeure clause. View our contract lawteam or schedule a free consultation.