The right of suspension is a debtor’s power to postpone its own obligation for as long as the other party fails to perform. It is a means of pressure: the performance remains due but need not be rendered for the time being.
Legal basis
Article 6:52 of the Dutch Civil Code gives the general right of suspension where there is a due counterclaim, provided there is sufficient connection between the two obligations. That connection is assumed for obligations under the same legal relationship or arising from regular dealings between the parties. Article 6:262 contains the defence of non-performance for reciprocal contracts, and Article 6:263 the uncertainty defence for a party who must perform first but has good grounds to fear that the other will not perform. Article 6:54 lists cases where suspension is not permitted, including where performance by the other party has become permanently impossible. Article 6:262(2) requires proportionality: the failure must justify the suspension.
How it works in practice
Suspension works best when announced clearly, stating the reason and what the other party must do to bring it to an end. It is often used against a contractor who fails to remedy defects or a supplier who delivers late. As long as the suspension is justified, the suspending party does not itself fall into default and incurs no penalties or interest.
Where it goes wrong
A party who suspends without justification falls into default itself and risks rescission and damages. The main risks are a counterclaim that is not yet due, a lack of connection, and disproportion: withholding the entire contract price for a minor defect will not stand. A second error is silently withholding payment without giving a reason, prompting the other party to send reminders and incur collection costs.
Related terms
Suspension connects to default, breach of contract and rescission as the next step.
Would you like to know whether you may suspend? Our civil law specialists test connection and proportionality.
