Drafting contracts in the Netherlands: what does Dutch law require?

In the Netherlands, a contract comes into being through an offer and its acceptance; Book 6 of the Dutch Civil Code requires no particular form for most agreements. The important exception is that every contract is supplemented and, where necessary, limited by reasonableness and fairness, so a clause can be set aside in the circumstances even though both parties signed it.

There is no general requirement of writing, no notarial form for ordinary commercial deals and no consideration requirement. Writing is required only in a limited number of cases, such as the non-compete and probationary clauses in an employment contract.

What makes a contract binding under Dutch law?

A contract is binding once the parties have reached agreement (wilsovereenstemming) on the essential points. Dutch law looks at what each party could reasonably understand from the other’s words and conduct, not only at what each party privately intended.

That objective element has practical consequences. A party who signs without reading is usually bound. An internal reservation that was never communicated is usually irrelevant.

Form is free. An agreement concluded by email, in a chat message or by conduct is as binding as one signed in ink. An electronic signature is valid; the level of assurance only affects how easily it can be proved. Writing is required in a limited number of cases, and those cases matter because the sanction is usually nullity. Examples are the non-compete and the probationary clause in an employment contract, the purchase of a home by a consumer buyer, and a small number of other statutory exceptions.

There are two limits on freedom of contract. First, a contract whose content or purpose conflicts with mandatory law, public order or good morals is void. Second, what parties owe each other follows not only from the agreed text but also from statute, usage and the requirements of reasonableness and fairness. Those requirements fill gaps and, in exceptional cases, block reliance on a clause that was validly agreed. Courts apply that limiting function restrictively, but it is real: it is the reason a broadly drafted exoneration clause is not the end of the discussion.

What does every agreement need?

Every agreement needs identified parties, a valid signature, agreement on the essentials, a lawful object, defined obligations and a choice of law and forum. The table shows why each element matters.

Do obligations already apply during negotiations?

Yes. Parties who negotiate enter a relationship governed by reasonableness and fairness, and breaking off negotiations can, in exceptional cases, be unlawful.

The established line in the case law is that a party is in principle free to walk away. That freedom can be lost where the other party could legitimately expect that some contract would result, or where breaking off would be unacceptable for other reasons. In that situation the disappointed party may recover its costs and, in the most extreme cases, its lost profit.

Two practical consequences follow. First, put the status of the discussions in writing. A term sheet or letter of intent will normally be respected if it states that no binding agreement arises until a definitive contract is signed, and that each party bears its own costs. Second, be careful with the word “agreed”. An email confirming that the parties agree on price, scope and start date can already be a contract. The remaining points are then settled by supplementary law, whatever the parties intended to sign later.

The same period carries information duties. A party that knows something it should realise is decisive for the other side, and stays silent, risks a later annulment for mistake (dwaling). Annulment unwinds the contract with retrospective effect. Disclosing the awkward fact and dealing with it in a clause is almost always cheaper than defending a mistake claim two years later. Our article on contracting with Dutch parties deals with the practical side of this stage.

When do general terms and conditions apply?

General terms and conditions (algemene voorwaarden) apply only if they were declared applicable and accepted, and if the other party had a reasonable opportunity to take note of them. If the second requirement is not met, the other party can annul the clauses.

The first requirement is incorporation. The terms must have been declared applicable and accepted. That happens easily, and can even happen through a reference in an order confirmation that the other party does not contest.

The second requirement is the duty to provide the terms. The user of general terms must give the other party a reasonable opportunity to take note of them before or at the time of contracting. In practice that means handing them over or sending them. A reference to a website is sufficient only in defined circumstances. Printing the terms on the back of an invoice that arrives after delivery is not enough. If this duty is not met, the other party can annul the clauses, and the contract continues without them. That is how a carefully drafted limitation of liability disappears.

What extra protection do consumers have?

For contracts with consumers the Code goes further. It lists clauses that are always unreasonably onerous and clauses that are presumed to be, and the consumer can annul clauses in either category.

European consumer law adds a further layer: a court must test standard terms in a consumer contract of its own motion, whether or not the consumer raises the point. Small businesses do not benefit from those lists directly. The courts have long accepted, however, that the standards can radiate outwards to a small counterparty in a comparable position.

What if both parties refer to their own terms?

Under the Dutch rule, the first set of terms applies unless the second party expressly rejects it. A clause in your order confirmation that expressly rejects the other side’s terms is therefore worth more than a longer set of terms.

The core clauses of the deal, such as the price and the description of what is being supplied, are not general terms at all and are not subject to this regime. Our guide on drafting general terms and conditions works through a full set clause by clause.

What should you watch for in an employment contract?

An employment contract exists where one person performs work for another, for remuneration, in a relationship of subordination. The label on the document does not decide the outcome: the courts look at what was agreed and how the parties actually behaved.

A collective labour agreement (CAO) may apply to your sector. That is the case if you are a member of the contracting employers’ organisation, or if the CAO has been declared universally binding. Where a CAO applies, its provisions on pay scales, working time, allowances and notice override anything less favourable in the individual contract. Check whether a CAO applies before drafting, not after. In most sectors wage development is set at that collective level rather than in individual negotiation, and the applicable scales and percentages are published with the CAO itself.

How does the chain rule for fixed-term contracts work?

An employer may conclude up to three consecutive fixed-term contracts over a maximum of three years. The contract that exceeds either limit becomes a contract for an indefinite period by operation of law.

The chain rule (ketenregeling) counts contracts as consecutive if the interval between them does not exceed the statutory interruption period, currently six months. A CAO may vary parts of the rule for defined sectors.

Change is coming. Under the Wet meer zekerheid flexwerkers, which has been adopted, the interruption period in the chain rule will become three years instead of the current six months. That effectively ends the practice of restarting the chain after a short break. The date of entry into force is set by royal decree; the core of the act is expected to apply from 1 January 2028. Until then, the current rule applies. Note also that the four-day rule for calling in on-call workers is not new: it has applied since 2020. Our glossary entry on the chain rule for fixed-term contracts sets out how the counting works.

What are the rules on probation, non-compete and working hours?

A probationary clause and a non-compete clause must both be agreed in writing. A clause that does not meet the statutory requirements is void or can be annulled by the court.

A probationary period may not exceed the statutory maximum, which depends on the duration of the contract:

• no probation at all for a contract of six months or less;
• one month for a contract longer than six months but shorter than two years;
• two months for a contract of two years or more, or for an indefinite contract.

A probationary clause that exceeds the maximum is void in its entirety, not merely reduced. An employer who overreaches therefore loses the clause altogether.

The non-compete clause (concurrentiebeding) must be agreed in writing with an employee of full age. The common belief that it can only be used in an indefinite contract is not accurate. It may also be included in a fixed-term contract, but only if the employer sets out in the clause itself the compelling business interests that make it necessary. That written reasoning must hold up if it is tested. In every case a court may annul the clause in whole or in part, or award compensation, where the employee is unfairly disadvantaged in relation to the interest the employer is protecting. Draft it narrowly in scope, duration and geography; an overbroad clause is the one most likely to be struck down when it matters.

How do you draft an agreement with a self-employed contractor?

Draft it as a contract for services (overeenkomst van opdracht) and make sure the actual relationship matches it. The main risk is that the relationship is later held to be employment, with retrospective consequences for payroll tax, social security contributions, holiday entitlement and dismissal protection.

The test is the same one used for employment: work, remuneration and, decisively, whether there is a relationship of authority. The Supreme Court (Hoge Raad) has made clear that the parties’ intention is not a separate element of the test. In the Deliveroo judgment of 24 March 2023 (ECLI:NL:HR:2023:443) it held that it does not matter whether the parties intended their agreement to fall under the rules on employment contracts. What matters is the rights and obligations they agreed and how the relationship worked in practice.

A contract that recites independence but describes daily instructions, fixed working hours at the client’s premises and a fixed monthly sum regardless of output will not survive scrutiny. Conversely, a genuine engagement is not undermined by a single awkward feature.

What has changed recently for self-employed contractors?

The enforcement moratorium of the tax authorities ended on 1 January 2025, and a legal presumption of employment based on an hourly rate is on its way. That presumption is not yet in force.

Since the moratorium ended, the tax authorities can again impose corrections where a relationship is in fact employment. Those corrections run from that date forward rather than reaching back into earlier years. Separately, legislation introducing a rebuttable presumption of employment below an hourly rate threshold has been adopted, with entry into force to be set by royal decree. The part of the original proposal that would have clarified the authority test was dropped. Until the presumption takes effect, the assessment rests on the existing case law.

What should the contract show?

Draft towards the result rather than the method. Describe the deliverable, the deadline and the acceptance criteria, and leave the how to the contractor.

Avoid exclusivity, and state expressly that the contractor may work for others. Provide for substitution where the nature of the work allows it. Let the contractor use their own equipment, bear their own business costs and carry their own professional liability insurance. Have them invoice on the basis of milestones or hours delivered, rather than receiving a fixed monthly amount that behaves like a salary.

Include the commercial clauses that a business-to-business relationship needs. These cover ownership of intellectual property, which does not transfer automatically under Dutch law and requires a deed for copyright; confidentiality; liability and its limits; and the consequences of late delivery. Review the arrangement periodically against how the work is actually being done, because it is the practice, not the document, that will be examined. Our article on when a contractor becomes an employee sets out the criteria in detail.

What matters most in a commercial agreement?

Spend the drafting effort on four things: what is being delivered, when payment is due, who owns the result, and what happens when something goes wrong. Everything else is usually negotiable; these four are where disputes start.

Define the scope through concrete deliverables, acceptance criteria and, just as importantly, exclusions. A specification that lists what is not included prevents most scope disputes before they arise, and a written change procedure prevents the rest. Where the parties agree on targets, distinguish clearly between an obligation to achieve a result and an obligation to use best efforts. Dutch law treats those very differently when performance falls short.

How should you arrange payment?

Tie instalments to milestones rather than to dates alone, so that neither side carries the whole risk of the other’s delay. Set a payment term and state the consequences of exceeding it.

In business-to-business contracts, statutory commercial interest runs on late payment. The rate is published twice a year, so the clause should refer to the statutory rate rather than repeat a figure that will date. Extrajudicial collection costs can also be recovered. The statutory scale for those costs is mandatory only in contracts with consumers; between businesses you may agree a different arrangement. Retention of title, so that goods remain yours until payment, is straightforward to agree and frequently omitted.

Who owns the intellectual property?

Intellectual property does not follow the invoice. Copyright in work created by a contractor stays with the contractor unless it is transferred by a deed (Article 2 of the Dutch Copyright Act, Auteurswet).

A clause transferring the rights on final payment, together with a licence to use the deliverable in the meantime, therefore belongs in every development or design contract. Where the creator is an employee acting within the scope of their duties, the employer is generally the rightholder by operation of law. That is a further reason for clarity about the status of the person doing the work.

How far can you limit your liability?

Limitation and exclusion clauses are valid in Dutch law, but they are not absolute. A court will not allow reliance on such a clause where that would be unacceptable according to standards of reasonableness and fairness.

These clauses are used in almost every commercial contract. They typically cap liability at the contract value or the fees paid over a defined period and exclude consequential loss. The threshold of unacceptability is generally crossed where the loss was caused deliberately, or by deliberate recklessness on the part of management. A cap that is grossly disproportionate to the risk allocated, or that leaves the other party with no meaningful remedy at all, is also vulnerable.

Draft accordingly. A cap calibrated to the contract value, with a carve-out for intent and deliberate recklessness and for breaches of confidentiality or third-party intellectual property rights, is far more likely to be enforced than a clause that tries to exclude everything. Align the cap with the cover under your liability insurance. Check also that the general terms in which the clause sits were properly provided; otherwise the clause can be annulled before its content is ever examined. Our overview of types of commercial agreement under Dutch law sets out the clauses each type calls for.

How do you end a contract correctly?

First determine which of three mechanisms applies: dissolution for a failure to perform, notice to end a continuing contract, or annulment for a defect in formation. Dutch law treats these separately, and using the wrong one is a common and expensive mistake.

When can you dissolve a contract?

Dissolution (ontbinding) is the remedy for a failure to perform. Any shortcoming in performance entitles the other party to dissolve, unless the shortcoming is too minor to justify it.

In most cases dissolution requires that the defaulting party is first in default. That normally means a written default notice giving a reasonable period to perform. No notice is needed where performance has become permanently impossible or where it is clear that performance will not follow. Dissolution operates for the future and creates obligations to undo what has been performed, and it can be combined with a claim for damages. A written statement is enough; a court order is not required.

How do you give notice of termination?

Notice of termination (opzegging) ends a continuing contract for the future without any failure to perform. Where the contract provides for it, follow the clause exactly, including the notice period and the required method of notification.

Where the contract is for an indefinite period and says nothing, it is in principle terminable. The case law does require that the circumstances be taken into account. Depending on the duration of the relationship, the investments made and the dependence of the other party, a sufficiently serious ground, a reasonable notice period or compensation may be required. Ending a long-standing distribution or supply relationship on short notice is a well-known source of litigation in Dutch commercial practice.

What is the difference between annulment and nullity?

Annulment (vernietiging) attacks the formation of the contract rather than its performance. The grounds include mistake, fraud, duress and abuse of circumstances, and annulment operates retrospectively. Nullity, by contrast, applies by operation of law where the contract offends mandatory law or good morals.

How does this work for employment contracts?

Employment contracts stand almost entirely outside this scheme. They cannot be ended by a simple notice letter in the way a commercial contract can.

A fixed-term contract of six months or more requires timely written notice of whether it will be continued. An indefinite contract can only be ended by mutual consent recorded in a settlement agreement (vaststellingsovereenkomst), by permission from the UWV (the Employee Insurance Agency) for economic reasons or long-term incapacity, or by the subdistrict court on one of the statutory grounds. The statutory transition payment (transitievergoeding) is due from the first day of employment, including during a probationary period. Under article 7:673c of the Dutch Civil Code it is not owed where the employer is bankrupt.

What should a cross-border contract cover?

A cross-border contract should state which language version prevails, which law applies and which court or arbitral institute decides disputes. A contract in English, German or any other language is fully valid in the Netherlands, because the law requires agreement, not a particular language.

Which law and which court apply?

Within the European Union, the applicable law of a commercial contract follows from the Rome I Regulation. It gives effect to a choice of law and, without one, points to the law of the country where the party providing the characteristic performance is established. Mandatory protective rules for consumers and employees continue to apply.

Jurisdiction follows from the Brussels I recast Regulation. It gives effect to a jurisdiction clause and otherwise points to the defendant’s domicile or the place of performance. Arbitration is an alternative worth considering where enforcement will take place outside Europe.

One trap deserves a specific mention. In an international sale of goods between businesses established in contracting states, the United Nations Convention on Contracts for the International Sale of Goods (CISG) applies automatically, alongside a choice of Dutch law, unless the parties exclude it. It changes the rules on conformity, notification and remedies. Decide whether you want it, and say so in the contract either way.

What should you check when you draft the contract?

As the drafting party, you control the text, and most disputes start with what you left out. Check these points:

• Contract with the legal entity, not a trade name, and check the signatory’s authority in the Chamber of Commerce (KVK) register.
• Do not use a template written for another jurisdiction; it may refer to concepts Dutch law does not have.
• Send your general terms with the offer, so the information duty of Article 6:234 BW is met.
• Define key terms such as completion, material breach and reasonable efforts, and include a written change procedure.
• Agree retention of title, a duration for confidentiality, and a choice of law and forum that actually has jurisdiction.
• Decide whether the CISG should apply, and exclude it expressly if not.

What should you check when you receive the other side’s draft?

As the receiving party, your risk lies in clauses you accept without noticing. Check these points:

• Whether the other party’s general terms were provided before or at contracting; if not, you can annul their clauses under Article 6:233(b) BW.
• Whether your own order confirmation expressly rejects their terms.
• Whether the liability cap leaves you a meaningful remedy and carves out intent and deliberate recklessness.
• Whether intellectual property is transferred by deed on payment, with a licence in the meantime.
• Whether the notice clause, notice period and termination method are workable for you.

What can we do for you with drafting a contract?

Our corporate lawyers draft and review contracts under Dutch law for Dutch and international businesses. For employees from abroad, see also our guide on employment contracts for international workers.

• We draft commercial, contractor and employment contracts that fit Book 6 and Book 7 of the Dutch Civil Code.
• We review your general terms and the way you provide them against Articles 6:233 and 6:234 BW.
• We check a contractor agreement against the authority test of the Deliveroo judgment (ECLI:NL:HR:2023:443).
• We draft liability, intellectual property, choice-of-law and dispute resolution clauses.
• We draft a default notice, a notice of termination or an annulment letter, so you use the right exit route.

Summary

• A Dutch contract is formed by offer and acceptance; writing is required only in specific cases, such as non-compete and probationary clauses.
• Reasonableness and fairness supplement every contract and can, in exceptional cases, block reliance on a signed clause.
• General terms only protect you if they were incorporated and actually provided to the other party before or at contracting.
• Employment and self-employment follow the facts, not the label; the parties’ intention does not decide the qualification.
• Choose the right exit route (dissolution, notice or annulment) and put choice of law, forum and language in every cross-border contract.

Frequently asked questions