Breach of contract (wanprestatie)

Breach of contract, in Dutch wanprestatie or more precisely a toerekenbare tekortkoming, is a failure to perform a contractual obligation which can be attributed to the debtor. It is the basis for a claim in damages and, in combination with the rules on rescission, for terminating the contract.

Legal basis

Article 6:74 of the Dutch Civil Code provides that every failure to perform obliges the debtor to compensate the resulting damage, unless the failure cannot be attributed to them. Attribution is governed by Article 6:75: a failure is attributable if it is the debtor’s fault or falls within their sphere of risk under the contract, the law or generally accepted standards. Where it does not, there is force majeure and no liability in damages.

Damages for delay require default, which is why a valid notice of default is so often decisive. Where performance has become permanently impossible, no notice is needed.

What counts as a failure

Any deviation from what was owed qualifies: late delivery, delivery of something that does not conform, defective work, or a service performed below the standard of a reasonably competent professional. The scale of the failure does not affect whether there is a breach; it affects the remedies, in particular whether rescission is proportionate.

The remedies and how they combine

The creditor may demand performance, claim damages, rescind the contract, or suspend their own performance under Article 6:262 while the other side is in default. Damages and rescission can be combined; performance and rescission cannot, since they point in opposite directions.

Where it goes wrong

Parties frequently rescind first and think about the notice of default afterwards. If default never arose and performance was not permanently impossible, the rescission is invalid, and the party that rescinded is itself in breach. The second common problem is a contractual limitation of liability that is overlooked until the claim is quantified.