Commercial contracts

What we do

Our lawyers and legal experts provide support throughout the entire process, from the drafting of a contract to legal representation in the event of a dispute. Within the litigation expertise, we assist organizations in court or before an alternative dispute resolution body.

An agreement sets out the arrangements between parties under which they conduct business or cooperate with each other. Should a dispute arise regarding the interpretation of provisions in the contract, our legal experts and lawyers can provide support in initiating legal proceedings.

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of commercial contracts. Contact us to discuss the possibilities.

Disputes over commercial contracts: where things can go wrong

A commercial contract sets out what parties may expect from one another: performance, prices, delivery times, guarantees, and liability. Yet, it is precisely here that most business disputes arise. These often involve the interpretation of a provision, a supplier or customer failing to meet their obligations, defective products or services, or a party abruptly terminating the collaboration. Within the Litigation / Disputes , our lawyers and in-house counsel assist you when the advisory phase is over and a genuine conflict is on the table — for the international group just as much as for the baker on the corner.

Breach of contract, default and notice of default

If your contractual partner fails to fulfill their obligations, or does so late or properly, this constitutes a breach of contract (non-performance). The legal basis for compensation for damages in the event of an attributable breach is Article 6:74 of the Dutch Civil Code (BW). In most cases, this right only arises when your counterparty is in default. This usually requires a notice of default: a written demand in which you grant a reasonable period to still perform (Article 6:82 BW). Sometimes default occurs by operation of law — for example, in the case of a fixed deadline or when performance is permanently impossible (Article 6:83 BW). A correct notice of default is strategically crucial for the proceedings: if it is lacking, a subsequent claim for dissolution or compensation often fails on this very point.

Dissolution, performance or damages

In the event of a breach, you generally have the choice between enforcing performance, dissolving the agreement, or claiming damages. Dissolution due to a breach is regulated in Article 6:265 of the Dutch Civil Code: every breach gives rise to a right to dissolution, unless the breach does not justify this given its minor significance. After dissolution, you may also claim compensation for the damage you suffer as a result of the dissolution (Article 6:277 of the Dutch Civil Code). However, you cannot simultaneously dissolve the agreement and claim compensatory damages — these are mutually exclusive. Which route yields the best results depends on your interests: do you want to be rid of the collaboration, or do you want to receive the performance ordered? We will clearly map out this consideration before you take an irreversible step, because an unjustified declaration of dissolution can put you in default yourself.

Explanation of the contract and general terms and conditions

Many disputes do not revolve around the facts, but around the interpretation of a provision. The Dutch court does not interpret contracts purely linguistically, but considers what the parties could reasonably expect from each other (the Haviltex standard). In addition, the supplementary and restrictive effects of reasonableness and fairness play a role ( Article 6:248 of the Dutch Civil Code ). General terms and conditions are also often the subject of contention: which set applies (battle of forms), is an exoneration or penalty clause valid, and were the terms and conditions provided in a timely manner? Moreover, in the event of error or fraud, the agreement may be annulled ( Article 6:228 of the Dutch Civil Code and Article 3:44 of the Dutch Civil Code, respectively ). Our legal experts and lawyers know where the weak and strong points lie in your contract.

The legal procedure: summons, summary proceedings, and attachment

If negotiations break down, various avenues are open. Disputes up to €25,000 are handled by the sub-district court (without a mandatory lawyer); amounts exceeding this are handled by the civil court, where legal assistance is mandatory. Ordinary proceedings on the merits begin with a summons. If urgency is required, for example to enforce delivery or payment, summary proceedings offer a solution (Article 254 of the Dutch Code of Civil Procedure). To secure recovery, we can place a provisional attachment on your counterparty's assets in advance (Article 700 of the Dutch Code of Civil Procedure), ensuring that there is actually something to recover after a successful procedure. Please bear in mind that the unsuccessful party usually only reimburses a portion of the actual legal costs; we always weigh the litigation risk against the expected proceeding.

Evidence and statute of limitations

Whoever makes a claim must also prove it in legal proceedings. Proper record-keeping—correspondence, emails, order confirmations, delivery notes, and a conclusive notice of default—often determines the outcome. Furthermore, claims are subject to a statute of limitations. A claim for performance of an obligation arising from a contract generally lapses after five years (Article 3:307 of the Dutch Civil Code), with a long limit of twenty years (Article 3:306 of the Dutch Civil Code). You can interrupt the statute of limitations in a timely manner by means of a written notice (Article 3:317 of the Dutch Civil Code). We monitor these time limits and ensure that your rights do not expire unnoticed.

Settle or litigate: arbitration, mediation and the NCC

Not every dispute belongs in court. Based on the underlying agreements, we advise whether an (amicable) settlement is feasible or whether litigation is the appropriate course of action. Many commercial contracts contain a forum selection or arbitration clause; in such cases, the dispute is settled by arbitration or binding advice rather than by the ordinary courts. For international contracts, the Netherlands Commercial Court (NCC), which litigates in English, can offer a solution. Mediation—dispute resolution guided by a neutral mediator—also often preserves a valuable commercial relationship. Together with you, we select the forum that best suits your interests, your contract, and the desired speed.

For whom we work

Our mixed teams of lawyers and in-house counsel assist enterprises of all sizes — from international corporations to the baker around the corner. Whether it concerns a non-delivering supplier, a non-paying customer, a disrupted distribution relationship , or a conflict involving a franchise or acquisition dispute: we combine the sharpness of a litigation lawyer with the practical perspective of an in-house counsel. This allows us to keep your commercial interests in mind, even during a conflict.

Frequently asked questions about disputes regarding commercial contracts

What exactly is a breach of contract?
A breach of contract is an attributable failure to perform an obligation: your contractual partner does not do what was agreed, or does not do it on time or properly. Pursuant to Article 6:74 of the Dutch Civil Code, you can then—usually after default—claim damages.

Do I always have to send a notice of default first?
Often, yes. A notice of default (Article 6:82 of the Dutch Civil Code) gives your counterparty a final, reasonable period to still perform and puts them in default. Only in certain cases — such as a fixed deadline or permanent impossibility — does default occur by operation of law (Article 6:83 of the Dutch Civil Code).

Can I simply dissolve the agreement?
Dissolution pursuant to Article 6:265 of the Dutch Civil Code is possible in the event of a breach, unless the breach is too minor to justify dissolution. However, an unjustified dissolution may put you in default yourself; therefore, have your position legally reviewed first.

How long do I still have to file a claim?
A claim for performance generally lapses after five years (Article 3:307 of the Dutch Civil Code). You can interrupt the limitation period with a written notice (Article 3:317 of the Dutch Civil Code). Therefore, do not wait too long to act.

Litigation or settlement?
That depends on the litigation risk, costs, speed, and the importance of the commercial relationship. We advise on a case-by-case basis whether a settlement, arbitration, mediation, or legal proceedings is the best course of action.