Drafting commercial agreements under Dutch law starts from a wide freedom of contract: an agreement comes into being through offer and acceptance under article 6:217 of the Burgerlijk Wetboek and generally needs no particular form to be binding. The work of drafting is therefore not about making the contract valid, but about making it precise, enforceable against the right party, and resistant to the way a Dutch court will later read it. This article sets out what that requires in practice.
The five sections below follow the order in which contract problems actually appear: who is bound and under which law, how the commercial deal is described, whose general terms apply, how risk is allocated, and which drafting habits cause the most litigation. Whether you are adapting an English-language template or starting from a blank page, this is where Dutch law will either support your text or work against it.
Getting advice before the deal is fixed
Legal advice is worth most before the commercial terms are settled. Once price, scope and timeline have been agreed in a term sheet or a letter of intent, the room to change them is largely gone, and Dutch law gives that stage weight: negotiations that have reached an advanced point cannot always be broken off freely, and a party that walks away at the wrong moment can be liable for the other side’s costs or, exceptionally, for its lost profit. A contract lawyer brought in at that point can still shape the deal; brought in after signature, the same lawyer can only assess the damage.
The moments that reliably justify legal advice on a contract are the ones where the balance shifts: when the counterparty puts forward its own standard terms, when the value or the duration of the arrangement is significant, when personal data or intellectual property changes hands, and whenever the contract crosses a border. In those situations the cost of review is a fraction of the exposure it addresses.
Who is bound, and which law governs
The first substantive question in any commercial agreement is whether the parties named in it are the parties you think you are contracting with. Use the full statutory name and legal form of the entity, take the registration number from the Chamber of Commerce register, and check that the individual signing is authorised to do so. For a besloten vennootschap the board represents the company and each director is individually authorised unless the articles or the register state otherwise, so a limitation registered at the Chamber of Commerce can be relied on against you. Where authority is lacking, the company is not bound unless it has created the appearance of authority, and unwinding that dispute is far more expensive than checking the register beforehand.
Governing law, forum and language
For contracts with an international element, the law that governs the contract is determined by the Rome I Regulation, which gives effect to an express choice of law by the parties, and jurisdiction between EU member states follows Regulation 1215/2012 (Brussels I recast), which likewise respects a valid choice of forum. Make both choices explicitly and in separate clauses; leaving them to the default connecting factors invites a preliminary dispute about where the case belongs before anyone reaches the merits.
Two points are routinely overlooked. In an international sale of goods the Vienna Sales Convention applies of its own force between parties established in different contracting states, so if you do not want it, exclude it expressly rather than assuming Dutch domestic law applies. And a contract can be drafted in English while being governed by Dutch law, but the words will then be read through Dutch eyes: what the parties could reasonably attribute to each other in the circumstances weighs more heavily than the dictionary meaning of the clause. Terms borrowed from common law drafting, such as indemnities, consequential loss or best endeavours, have no fixed Dutch content and should be defined in the contract itself.
Form requirements and written proof
Most commercial agreements are valid without any formality, and Dutch law accepts an oral agreement as binding. That is a point about validity, not about wisdom: the party asserting a term has to prove it. A limited group of transactions does require a particular form, notably the transfer of registered property and the transfer of shares in a besloten vennootschap, both of which require a notarial deed, and a non-competition clause in an employment contract, which must be agreed in writing.
Describing the deal before adding the legal layer
The commercial core of the contract should be written before the boilerplate. Say who delivers what, by when, against which standard, and what the other party pays. A definitions clause earns its place only where the defined terms are then used consistently; a definitions list that contradicts the operative clauses is a source of disputes rather than a cure for them.
For services and development work, the value lies in the acceptance mechanism: what is delivered, who tests it, against which criteria, within what period, and what happens if acceptance is withheld. Service levels are worth agreeing only if the contract also says what the consequence of missing them is. Without that, a service level is a description rather than an obligation.
Price, payment terms and duration
State the price or the rate structure, the currency, the VAT treatment and the moment payment falls due. Dutch law sets outer limits here that a contract cannot simply override. Where no payment term is agreed between businesses, payment is due within thirty days, and an agreed term may not exceed sixty days unless the parties can show that a longer term is not manifestly unfair to the creditor. Since 1 July 2022 a large company contracting with a small or medium-sized supplier may not agree a payment term longer than thirty days at all, and a longer term is void and converted into thirty days. Late payment carries the statutory commercial interest of article 6:119a BW, the rate of which is fixed by ministerial regulation twice a year and published in the Staatscourant, together with a fixed collection charge.
For contracts of indefinite duration, say expressly whether and how they may be terminated. Dutch case law holds that a continuing agreement without a termination clause can in principle be terminated, but that reasonableness and fairness may require a reasonable notice period, or compensation, depending on how long the relationship lasted and how much the other party invested in it. A clause that settles this in advance is one of the most valuable provisions in a distribution or supply contract.
General terms and conditions: whose set applies
Dutch law treats general terms and conditions (algemene voorwaarden) as a separate regime, and it is the part of contract drafting that businesses most often get wrong. Where both parties refer to their own standard terms, article 6:225 lid 3 BW gives priority to the set referred to first, unless the second reference expressly rejects the first. A short, explicit rejection in the order confirmation therefore decides a question that many parties assume was settled by whoever spoke last.
The second rule concerns availability. General terms may be annulled if the user did not give the other party a reasonable opportunity to take note of them, which in practice means handing them over before or at the moment of contracting, or making them available electronically in a form that can be stored. Referring to a set filed at the Chamber of Commerce or a court registry is only sufficient where handing them over was not reasonably possible. The protective rules on unreasonably onerous clauses, including the statutory lists, are written for consumers and small counterparties; large enterprises that meet the statutory thresholds cannot invoke them and must rely on reasonableness and fairness instead.
Allocating risk: warranties, liability and force majeure
Warranties fix the facts each party guarantees, such as ownership of the intellectual property supplied or compliance with the regulations applying to the goods. Indemnities allocate who bears third-party claims, and because the term has no settled Dutch meaning, the clause must say what triggers it, what it covers and how it is invoked. Liability caps are enforceable in principle, typically expressed as a multiple of the contract value or of the fees paid in the preceding period, but a court can set an exoneration clause aside under article 6:248 lid 2 BW where reliance on it would be unacceptable by standards of reasonableness and fairness. That happens above all in cases of intent or conscious recklessness on the part of the debtor or its senior management, which is why well-drafted caps carve those cases out expressly rather than leaving the whole clause exposed.
Intellectual property, confidentiality and personal data
Set out who owns what is created during the contract and what the other party receives: a transfer, an exclusive licence or a limited right of use. Under Dutch copyright law a transfer requires a deed, so a clause stating only that the customer owns the results may not achieve the transfer it describes. Confidentiality obligations should identify what is protected and for how long, and where trade secrets are involved the statutory protection depends on the holder having taken reasonable measures to keep the information secret, which the contract can help evidence. Where personal data is exchanged, establish whether the parties are controllers or whether one processes on behalf of the other, and conclude the processing agreement the GDPR requires in the latter case.
Change control, termination and force majeure
Agree a written change procedure and identify who may approve a change on each side, since most scope disputes begin with an instruction given informally. Termination rights should distinguish between termination for convenience, termination for breach, and termination on insolvency, and should state the notice period and what survives. Force majeure is regulated by article 6:75 BW as a default, but the default is open-textured; a clause listing which events qualify, and saying what happens to obligations that continue, is more useful than a general reference to circumstances beyond the parties’ control.
The drafting mistakes that cause disputes
Templates are a starting point and not a solution. Clauses imported from another jurisdiction routinely survive into Dutch contracts where they do nothing, such as consideration recitals, or where they do less than expected, such as an entire agreement clause: under Dutch law such a clause does not automatically exclude the pre-contractual correspondence from the interpretation of the contract, because interpretation looks at what the parties could reasonably expect of each other in the circumstances.
The second recurring problem is internal inconsistency. Defined terms used loosely, an annex that contradicts the main body without an order-of-precedence clause, deadlines expressed in working days in one clause and calendar days in another: each of these gives a counterparty a foothold. Vague standards such as reasonable efforts or as soon as possible transfer the decision to a judge; a date, a number or a named person keeps it with the parties.
The third is a failure to think through limitation periods and complaint duties. A claim for performance or damages under a contract generally lapses five years after the creditor became aware of the claim and of the debtor, and a buyer who discovers a defect must complain within a reasonable time or lose the right to rely on it. Contracts can and often do shorten those periods; before agreeing to a short notification window, check what it would take to detect the defect in question within it.
What to do with your own contracts
A useful review starts with the documents you use most: the standard order confirmation, the general terms and conditions, and the one or two agreements that carry most of your turnover. Check that the entity names and signatories are correct, that your general terms are actually handed over rather than merely mentioned, that the payment terms comply with the statutory maxima, and that the liability cap and the termination clause say what you assume they say. Most of the disputes we see arise from those four points rather than from exotic drafting questions.
Law & More drafts, reviews and negotiates commercial agreements for businesses operating in the Netherlands, from supply and distribution contracts to software licences and cooperation agreements, in Dutch and in English. If you would like an existing contract or set of general terms reviewed before the next negotiation, contact us. Our overview of commercial law in the Netherlands and of drafting Dutch agreements sets out the wider framework.
