Reasonableness and fairness (redelijkheid en billijkheid) is the open standard that governs how contracting parties must treat each other. Under article 6:248 of the Dutch Civil Code (BW), it can add obligations to a contract and can set aside an agreed rule. Article 6:2 BW applies the same standard to all obligations.
Table of contents
How does it add to a contract?
This is the supplementing effect (aanvullende werking) of article 6:248(1) BW. A contract has effects that follow from the law, custom and reasonableness and fairness, even if the parties did not write them down. Examples are duties to warn, inform and cooperate.
When can it set aside a clause?
This is the limiting effect (beperkende werking) of article 6:248(2) BW. An agreed rule does not apply where applying it would be unacceptable by standards of reasonableness and fairness. The bar is high and courts apply it with restraint. Typical examples:
- relying on an exoneration clause after gross negligence or intent;
- a penalty clause out of all proportion to the breach;
- relying on a deadline when you caused the delay yourself.
Which circumstances does the court consider?
Article 3:12 BW tells the court to consider generally accepted legal principles, the legal views in the Netherlands and the social and personal interests involved. Concrete facts matter more than a general appeal to fairness, such as the parties’ expertise, the nature of the contract and how the situation arose.
Frequently asked questions
Is this the same as good faith?
It is close to objective good faith in other civil law systems, but Dutch law uses its own term and test.
Can I rely on it to escape a bad bargain?
Rarely. A contract that turns out unfavourable is not unacceptable on that ground alone.
Related terms
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