Performance (nakoming) means actually carrying out an obligation: delivering, paying, repairing or refraining from something. It is also the creditor’s claim to enforce that obligation. Under article 3:296 of the Dutch Civil Code (BW), the court orders the debtor to perform at the creditor’s request, unless the law, the nature of the obligation or a legal act prevents this.
Table of contents
When should you claim performance?
Performance fits when you still want what was agreed and the other party can still deliver. If trust has gone or performance is no longer possible, rescission of the contract and damages are often the better route. Once performance has become permanently impossible, it can no longer be claimed.
How is performance enforced?
- A court order in proceedings on the merits or, if urgent, in preliminary relief proceedings (article 254 of the Dutch Code of Civil Procedure)
- A penalty payment (dwangsom) attached to an order to do something
- For money claims: attachment of the debtor’s assets
Can performance and dissolution be combined?
Not at the same time for the same obligation, but you can claim performance with dissolution as an alternative. A creditor who first claimed performance can still dissolve if the debtor continues to fail. You can also claim damages for delay alongside performance.
Frequently asked questions
How long can I claim performance?
A claim for performance of a contractual obligation is in principle time-barred 5 years after it became due (article 3:307 BW). See limitation period.
Can I stop my own performance meanwhile?
Often yes, by invoking your right of suspension.
Related terms
- Breach of contract
- Default (verzuim)
- Penalty payment (dwangsom)
- Shortcoming in performance (tekortkoming)
Our civil law team helps you choose between performance, dissolution and damages. Want to know what this means for your situation? Book a free introductory meeting.
