Damages claims in the Netherlands: legal basis, proof and deadlines

You can claim damages in the Netherlands if another party caused you loss through a breach of contract (Article 6:74 of the Dutch Civil Code) or through an unlawful act (Article 6:162 of the Dutch Civil Code). The most important exception: a contract claim usually requires that the other party is first in default, which normally means sending a written notice of default (ingebrekestelling) under Article 6:82 — and every damages claim is subject to a limitation period.

Which of the two routes applies is the first question, because they impose different requirements. Where the loss arises from a contract, a failure in performance obliges the debtor to compensate your loss unless the failure cannot be attributed to them. For most obligations the debtor must first be in default. That normally requires a written notice setting a reasonable period for performance. Leaving out that step defeats many claims that are otherwise sound.

Where the loss arises outside a contract, the basis is an unlawful act (onrechtmatige daad) attributable to the person who committed it. That requires an infringement of a right, an act or omission contrary to a statutory duty, or conduct contrary to what is proper in society. Article 6:163 adds that the rule breached must be intended to protect against the loss you suffered.

Both routes then require the same elements: loss, attribution, and a causal connection under Article 6:98 that is close enough for the loss to be reasonably imputed to the other party. Recoverable loss covers the loss you suffered, lost profit and certain reasonable costs, such as the costs of establishing loss and liability (Article 6:96). Non-financial loss is recoverable only in the cases listed in Article 6:106. Contributory fault reduces the award under Article 6:101. On a late payment of money, statutory interest (wettelijke rente) runs for the period the debtor is in default (Article 6:119).

Time limits decide many claims before the merits are ever discussed. Under Article 3:310 a claim for damages is time-barred five years after the day on which you became aware of both the loss and the person liable, and in any event twenty years after the event that caused the loss. A short written letter can interrupt that period.

Contract or unlawful act: what is the difference?

What does Dutch law say about damages claims?

Dutch law gives you a right to compensation when another party is liable for your loss. The rules on what you can recover are the same for contract claims and unlawful acts; they are in Articles 6:95 to 6:110 of the Dutch Civil Code.

The system is built on one principle. Compensation should put you, as far as money can, in the position you would have been in without the event that caused the loss. It is not meant to enrich you and not meant to punish the other party.

What loss can you recover under Dutch civil law?

Under Dutch civil law you recover financial loss, and non-financial loss only in specific cases. Article 6:96 of the Dutch Civil Code defines financial loss (vermogensschade) as the loss you actually suffered and the profit you missed.

Article 6:96 also counts certain reasonable costs as loss: costs to prevent or limit loss, costs to establish loss and liability, and costs to obtain payment out of court. Non-financial loss (immaterieel nadeel) can only be claimed in the cases listed in Article 6:106. Examples are when the liable person intended to cause that harm, or when you were physically injured, harmed in your honour or reputation, or otherwise affected in your person. Dutch law does not award damages meant to punish.

To succeed, you must show actual loss, a sufficient causal connection between the event and that loss, and evidence of the amount. Article 6:98 sets the test for causation: the loss must be connected to the event in such a way that it can reasonably be attributed to the liable party, taking into account the nature of the liability and of the loss. For a broader picture of how such cases are handled, see our page on legal support with damages claims.

The court assesses the amount in the way that best fits the nature of the loss. If the exact amount cannot be established, the court estimates it (Article 6:97). That helps where future loss or lost profit is uncertain, but you still have to give the court a reasonable basis for its estimate. If your own conduct contributed to the loss, the court divides the loss in proportion to each party’s contribution, unless fairness requires a different split (Article 6:101).

Which requirements and time limits apply?

You must establish liability, loss and causation, and you must act within the limitation period. For damages claims that period is five years from the day after you became aware of both the loss and the liable person, with an outer limit of twenty years after the event (Article 3:310).

Some claims have shorter periods. For example, special rules apply to claims arising from consumer purchases and to some transport claims. Check the period that applies to your specific claim as soon as possible.

The limitation period can be interrupted (stuiting). Under Article 3:317 of the Dutch Civil Code, the limitation of a claim for performance of an obligation is interrupted by a written warning or by a written notice in which you unequivocally reserve your right to performance. After an interruption, a new limitation period starts on the following day (Article 3:319).

Most damages claims are settled before they reach a judge. A clear claim letter, backed by documents, often opens negotiations. Mediation is an option if both parties agree to it; Dutch law does not make it a general requirement before going to court.

What changes if you are an international claimant?

If your claim has a cross-border element, two questions come before the merits: which court has jurisdiction, and which law applies. Within the EU, jurisdiction in civil and commercial matters is mainly governed by the Brussels I-bis Regulation (Regulation (EU) No 1215/2012).

The applicable law for contract claims and for non-contractual claims follows from EU rules as well (the Rome I and Rome II Regulations), unless a valid choice of law was made. A Dutch court can therefore apply foreign law, and a foreign court can apply Dutch law. Check the contract for a choice-of-court clause and a choice-of-law clause before you take any step.

Under the Brussels I-bis Regulation, a Dutch judgment can be enforced in another EU Member State without a separate exequatur procedure. Outside the EU, recognition and enforcement depend on the rules of the country where you want to enforce. That can affect where it is best to sue.

In practice, we look at these questions first: where the other party has assets, which court is competent, and which law the court will apply.

How do you make a claim, step by step?

You make a claim in three steps: you prepare your file, you hold the other party liable in writing, and, if that does not lead to payment, you start proceedings. Each step has its own requirements, and a mistake early on can weaken the claim later.

How do you prepare the claim?

Start by collecting everything that shows what happened, what it cost you and why the other party is responsible. Put the facts in date order and keep all originals.

Read our guide to the fundamentals of filing a legal claim before you take the next step. Your file should show:

• The amount of your loss, with a calculation you can explain line by line

• The causal link between the other party’s conduct and your loss

• The chronology of what happened and when

• Independent support, such as an expert report, where the loss or its cause is disputed or technical

At this stage, you also decide on the legal basis. In a contract claim, check whether the other party is already in default or whether you first need to send a notice of default. Check the limitation period and, if needed, interrupt it in writing. Under Article 3:317 BW a written warning that unequivocally reserves your right interrupts the limitation period.

How do you submit the claim and start proceedings?

You first hold the other party liable in a letter that sets out the facts, the legal basis and the amount, with a deadline for payment. If they do not pay or reject liability, you can start court proceedings, or arbitration if the contract provides for it.

A claim letter or summons usually contains:

• A statement of the facts and the nature of the loss

• The calculation of the loss with supporting documents

• The identity of the party you hold liable

• The legal basis of the claim

Which court hears the case depends on the amount. Claims of up to €25,000 (including interest accrued up to the date of the summons) go to the subdistrict court (kantonrechter), as set out in Article 93 of the Dutch Code of Civil Procedure. Larger claims go to the civil section of the district court, where you must be represented by a lawyer.

If the exact amount is still unclear, a court can also first decide on liability and refer the calculation of the loss to a separate procedure (schadestaatprocedure). Talks about a settlement remain possible at every stage.

Which defences should you expect?

The other party will often dispute liability, the causal link or the amount. Expect three arguments in particular: the claim is time-barred, you contributed to the loss yourself, and the loss is not a sufficiently direct consequence of the event.

Contracts between businesses often contain clauses that limit or exclude liability, for example in general terms and conditions. Whether such a clause can be relied on depends on the contract and the circumstances. Check this before you calculate what is realistically recoverable.

Which documents and evidence do you need?

You need documents that prove three things: what happened, what it cost you, and why the other party is responsible. The party relying on facts must prove them (Article 150 of the Dutch Code of Civil Procedure), so in most cases the burden of proof is on you.

The court can assign the burden of proof differently if a specific rule or fairness requires it. That is an exception; prepare your claim on the basis that you will have to prove it.

Which types of documentary evidence count?

Useful evidence is anything that shows the loss and its cause: financial records, the contract, correspondence and expert reports. See our guide on preparing legal documentation for practical tips.

Typical documentary evidence includes:

• Financial records such as profit and loss statements, bank statements and invoices that show the amount of your loss

• The contract, including any general terms and conditions, showing what was agreed and what was not delivered

• Correspondence such as emails, letters and messages about the dispute

• Expert reports that independently assess the cause or the amount of the loss

Each document must relate to the loss you claim. A large file is not stronger than a small one; a file in which every item supports a specific part of the claim is.

Do foreign documents need translation or legalisation?

Documents in a language other than Dutch may need a translation, and the court can order one. Foreign public documents sometimes need an apostille or legalisation to show that they are authentic.

Which of these steps you need depends on the type of document and the country it comes from. Courts often accept documents in English, but this is not a right. Plan translations early, because they take time and cost money.

How do you build your file of evidence?

Build your file so that it tells the story of the loss in a logical order. Anyone reading it, including the judge, should be able to follow how the event led to the loss and how you calculated the amount.

An example to illustrate: a supplier delivers machine parts late, and your production stops for two weeks. Your file then contains the contract with the delivery date, your notice of default, the delivery note with the actual date, production records for the period, and a calculation of lost margin and extra costs. Each item supports one link in the chain from breach to loss.

What should you check as the claimant?

Most damages claims fail on procedure or evidence, not on the law. Check these points at the start:

• When does the five-year limitation period of Article 3:310 BW expire, and have you interrupted it in writing?
• In a contract claim, is the other party in default, or must you first send a notice of default under Article 6:82 BW?
• Can you link every euro of the claimed amount to a document?
• Does the contract or the general terms limit liability or contain a choice of court or law?
• Are there assets that may disappear, so that attachment before judgment (conservatoir beslag) is worth considering?

What should you check if you are held liable?

A liability letter often sets a short deadline. Check these points before you respond or pay:

• Is the claim time-barred under Article 3:310 BW?
• In a contract claim, were you actually in default when the loss arose?
• Did the claimant contribute to the loss, so that it must be divided under Article 6:101 BW?
• Can you rely on a limitation of liability in the contract or your general terms?
• Is the loss a sufficiently close consequence of your conduct under Article 6:98 BW?

What can we do for you with a damages claim?

Our corporate lawyers handle damages claims for claimants and for parties held liable.

• We assess the legal basis, the evidence and the limitation period of your claim.
• We draft the notice of default and the liability letter that interrupts the limitation period.
• We calculate the loss and check it against Articles 6:96 to 6:101 BW.
• We request leave for attachment before judgment where assets may disappear.
• We start or defend proceedings before the subdistrict court or the district court, or negotiate a settlement.

Summary

• A damages claim rests on breach of contract (Article 6:74) or an unlawful act (Article 6:162 of the Dutch Civil Code).
• In a contract claim, the other party usually must first be in default, often after a written notice of default (Article 6:82).
• You recover financial loss and certain reasonable costs (Article 6:96); non-financial loss only in the cases of Article 6:106. Dutch law does not award damages meant to punish.
• The limitation period is five years from knowledge of the loss and the liable person, at the latest twenty years after the event (Article 3:310). A written letter can interrupt it (Article 3:317).
• You carry the burden of proof, so build a file that links every part of the claimed amount to a document.

Frequently asked questions