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The right of suspension gives you the right to postpone your own obligation as long as the other party fails to fulfill its agreement (Article 6:52 of the Dutch Civil Code). However, you may not simply exercise it: conditions apply, and it may be limited or excluded in the general terms and conditions.
What is the right of suspension?
By invoking suspension, you postpone your own performance until the other party performs. For example, a supplier can suspend delivery if the customer fails to pay. It is a means of pressure to enforce compliance without immediately terminating the agreement.
What conditions must you meet?
For a valid reliance on suspension (Article 6:52 of the Dutch Civil Code), there must be an enforceable counterclaim and sufficient connection between your obligation and that of the other party. In the case of reciprocal agreements, the special provisions of Article 6:262 of the Dutch Civil Code also apply. Furthermore, the suspension must be proportionate to the other party's failure to perform.
When should you not use it?
If you suspend payment while the conditions have not been met, you are in default yourself and may be held liable for damages. An excessive suspension — for example, withholding the entire amount for a minor defect — is not permitted. Therefore, carefully assess whether the suspension is proportionate.
Agreements regarding suspension
You can regulate the right of suspension contractually: limiting, excluding, or clarifying it. Many terms and conditions of delivery and payment contain such provisions. Please note: an exclusion may be unreasonably burdensome towards a consumer.
Frequently Asked Questions
May I suspend payment if the delivery is defective?
Under certain conditions, yes, but only for a portion proportionate to the defect. Withholding the entire amount for a minor defect is generally not permitted.
Can the right of suspension be excluded in general terms and conditions?
Between businesses, this is often the case; however, towards consumers, an exclusion can be unreasonably burdensome and therefore voidable. Have your terms and conditions checked for this.
What is the difference compared to decomposition?
Suspension is temporary: you postpone your performance until the other party complies. Dissolution terminates the agreement. Suspension is often the first, less far-reaching step.
Are you unsure whether you may suspend?
Our legal experts assess your position and your terms of delivery, and assist with debt collection if payment is overdue. View our contract lawteam or schedule a free consultation.
