The right of suspension is a statutory right that frequently results in disputes. It is particularly important to know that you may not simply exercise the right of suspension. You must, after all, take a number of conditions into account. Moreover, provisions in the terms of delivery or order conditions may also impose restrictions.
What is the right of suspension?
The right of suspension is a right to postpone one's own obligations until the other party adheres to their agreement. You may not simply exercise the right of suspension, as a number of conditions apply. If you exercise the right of suspension unlawfully, you can be held liable for the damage you cause to the other party. In that case, you must compensation pay
Conditions for exercising the right of suspension
In the first place, the debtor's claim must due and payable . In other words, it must be possible to enforce the performance of the claim, such as the delivery of goods. Therefore, you cannot exercise the right of suspension if the final delivery date has not yet been exceeded.
In addition, there must be a connection between the obligations of the two parties. For example, you can suspend payment for undelivered goods, but not payment for earlier goods that have already been delivered.
Finally, if there is a disproportion , you may not exercise the right of suspension either. This would be the case, for example, if the supplier is supposed to deliver 100 computers but delivered only 99. In that case, you may not simply suspend payment for all 100 computers.
In practice, a stalemate often arises because one party refuses to pay and, consequently, the other party refuses to deliver either. Therefore, it is important to always put the other party in default in writing and indicate that you are exercising your right of suspension. In legal proceedings, the judge will therefore always determine who first validly invoked the right of suspension, and the date of that written document is extremely important.
Contractual agreements regarding the right of suspension
The above rules are the statutory rules as found in the Civil Code. However, it is possible to deviate from those rules. For example, parties may stipulate that they may not exercise the right of suspension , or they may extend the right of suspension, for instance, until the hundredth computer was delivered. Such provisions are valid.
Naturally, it remains possible to include other provisions in the general terms and conditions , such as a penalty clause if delivery is delayed by more than a week. In the event of a delay, you can then simply set off the penalty clause or claim payment of the penalty.
Special rights of suspension
In addition to the general right of suspension, there are numerous special rights of suspension that may also apply. Consider, for example, the exception of uncertainty. The exception of uncertainty allows the debtor to suspend their own agreements because they are uncertain about the performance of the obligation by the counterparty. For instance, a supplier may suspend the delivery of a computer because it is clear that the customer is heading towards bankruptcy. Another example is the right of retention , whereby the creditor may hold an asset belonging to the debtor until the debtor satisfies their claim. Consider, for example, a bicycle repairer who may refuse to release a repaired bicycle until the customer reimburses the repair costs. Agreements regarding such special rights of suspension can also be included in the general terms and conditions.
Get assistance from MKB Juristen
The right of suspension is a powerful legal remedy to prevent harmful situations. However, the right of suspension is not always desirable, especially when the end customer sets strict deadlines. In such cases, you must limit the right of suspension in the general terms and conditions. MKB Juristen is happy to assist you. Our legal experts draft watertight general terms and conditions for you, ensuring you need not fear the right of suspension.
Contact the legal experts at MKB Juristen and have your general terms and conditions drafted.
