A shortcoming in performance (tekortkoming) is any failure by a debtor to perform what it owes: no performance, late performance or defective performance. Under article 6:74 of the Dutch Civil Code (BW), every shortcoming obliges the debtor to compensate the resulting damage, unless it cannot be attributed to the debtor.
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What counts as a shortcoming?
It is a factual comparison between what was owed and what was delivered. What was owed follows from the contract, the law, custom and reasonableness and fairness (article 6:248 BW). Examples:
- goods not delivered or services not provided;
- delivery after the agreed deadline;
- goods that do not meet the conformity requirement;
- breach of a non-compete or confidentiality clause.
Is every shortcoming a breach with damages?
No. A shortcoming only leads to damages if it is attributable to the debtor; otherwise it is force majeure. For damages caused by delay, the debtor must also be in default, usually after a written notice (articles 6:81 and 6:82 BW).
What remedies does a shortcoming give?
Even a non-attributable shortcoming allows the creditor to suspend its own performance (article 6:262 BW) and, in a reciprocal contract, to dissolve (article 6:265 BW). The creditor can also continue to claim performance, as long as it is still possible.
Frequently asked questions
Is “tekortkoming” the same as “wanprestatie”?
Wanprestatie is the everyday term, usually meaning an attributable shortcoming. See breach of contract.
How do I prove a shortcoming?
Keep the contract, order confirmations, correspondence, photos and expert reports that show the gap.
Related terms
Our civil law team assesses whether the other party has fallen short and what you can claim. Want to know what this means for your situation? Book a free introductory meeting.
