Business liability under Dutch law and how to limit it by contract

Under Dutch law, a business is liable on two bases: for breach of contract under article 6:74 of the Dutch Civil Code (Burgerlijk Wetboek, BW), and for a wrongful act (onrechtmatige daad) under article 6:162 BW towards people it has no contract with. You can limit much of that exposure by contract, but not all of it: product liability, claims by third parties and certain consumer claims fall outside what a clause can reach.

On top of those two bases, the Civil Code attributes to your business the conduct of your employees and of the auxiliaries you use, and the risks of the movables, buildings and hazardous substances you operate. A limitation clause only helps you if it was validly agreed. The general requirements for liability are set out in our article on when you are responsible for damage, and the route from claim to compensation in our guide to liability claims.

What are the two bases of business liability, and why does the difference matter?

A customer or supplier sues you in contract; everyone else sues you in tort. The difference decides whether your liability clause can protect you at all.

Contractual liability arises when you fail to perform an obligation and that failure is attributable to you. Article 6:74 BW obliges the defaulting party to compensate the damage. In most cases this only applies once the debtor is in default (verzuim). That usually requires a written notice of default (ingebrekestelling) giving a reasonable period for performance, under article 6:82 BW. No notice is needed where performance has become permanently impossible or where a fixed deadline has passed. A serious breach also allows the other party to dissolve the contract (ontbinding) under article 6:265 BW.

Liability in tort is the residual regime. Article 6:162 BW covers three kinds of wrongful conduct: infringing a right, acting or failing to act contrary to a statutory duty, and conduct contrary to what is proper in society. The act must be attributable to you, and there must be damage and a causal link. The rule you breached must also have been intended to protect against the kind of damage suffered. This is the requirement of relativity (relativiteit) in article 6:163 BW. Damage is compensated to the extent it can be attributed to the event as a consequence, under article 6:98 BW.

The difference has practical bite. A contractual claim can be capped, excluded or made subject to a short notification period. A claim in tort by a third party cannot be limited by a contract that party never signed. That is why one incident, such as a leaking installation, a failed data migration or a defective batch, can produce a modest contractual claim from your customer and an uncapped claim from a third party who suffered loss.

When are you liable for the people and things your business uses?

You are often liable without any fault of your own. The Civil Code attributes the mistakes of your staff and helpers, and the risks of your property and substances, directly to your business.

Under article 6:170 BW an employer is liable for damage caused to a third party by a fault of its employee. This applies where the task assigned increased the risk of the mistake and the employer had control over the conduct. Article 6:171 BW extends the same idea to non-subordinate contractors who carry out work as part of your business. Hiring in a subcontractor therefore does not by itself move the risk outside your company. Article 6:172 BW does the same for representatives acting within their authority.

The Code also attributes the risks of objects. The possessor of a defective movable is liable under article 6:173 BW, the possessor of a building or structure under article 6:174 BW, and the professional user of a hazardous substance under article 6:175 BW. Where those things are used in the conduct of a business, article 6:181 BW shifts liability from the possessor to the operator of the business. That is why a tenant running a plant, and not the landlord, usually carries the claim.

How does product liability work, and what is changing?

A producer is liable without fault for damage caused by a defective product, under article 6:185 BW and the articles that follow. The injured party must prove the defect, the damage and the causal link, but not negligence. The defences are limited and include the development risk defence. Importantly for drafting, article 6:192 BW provides that this liability cannot be excluded or limited towards the injured party. A supplier who cannot identify its own supplier can find itself treated as the producer.

This regime is changing. Directive (EU) 2024/2853 replaces the 1985 Product Liability Directive. It brings software and digital manufacturing files within the concept of a product. It adds destruction or corruption of data as a type of damage, for data not used for professional purposes. It also eases the burden of proof where technical or scientific complexity makes proving a defect excessively difficult. Member States must transpose it by 9 December 2026, and it applies to products placed on the market or put into service after that date. Until the Dutch implementing legislation amending Book 6 BW enters into force, the present articles continue to apply.

When can directors be held personally liable?

Where a company cannot pay, claimants look at the board. A director owes the company proper performance of his or her duties under article 2:9 BW. A director can also be personally liable to a creditor under article 6:162 BW for entering into an obligation on the company’s behalf while knowing, or reasonably having to understand, that the company would not be able to perform and would offer no recourse.

In bankruptcy, article 2:248 BW makes the board liable for the deficit where it manifestly performed its task improperly and that was an important cause of the insolvency. Failing to keep proper records or to file the annual accounts on time creates a presumption against the board. Our articles on directors’ liability and on corporate and group liability examine those thresholds in detail.

How far can you limit liability by contract under Dutch law?

Between businesses, a clause limiting or excluding liability (exoneratiebeding) is in principle valid. A court can, however, set it aside where relying on it would be unacceptable by standards of reasonableness and fairness (redelijkheid en billijkheid), under article 6:248 paragraph 2 BW.

In practice a court weighs the seriousness of the breach, the nature of the damage, the relationship between the parties, whether the clause was negotiated, and whether the risk was insured or insurable. A clause is almost always set aside where the damage was caused deliberately or by conscious recklessness on the part of the company or those managing it.

That leads to a simple drafting rule: a proportionate cap usually survives, a blanket exclusion often does not. A cap expressed as a multiple of the fees paid under the contract, or as the amount your insurer pays out, combined with an exclusion of consequential loss such as lost profit and business interruption, is far more robust than a clause that tries to exclude all liability for everything.

Three categories cannot be handled this way at all:

• Liability for a defective product cannot be excluded towards the injured party.
• Liability towards consumers is bound by the black and grey lists in Book 6 BW, and a clause excluding liability for death or personal injury will not stand.
• A clause cannot limit a claim in tort by a third party, because that party is not a party to the contract. Only a properly drafted third-party clause or a chain of contracts can address that.

Was the clause validly agreed?

A limitation clause in your general terms and conditions only helps you if those terms were validly incorporated. You must give the other party a reasonable opportunity to take note of them, in principle by providing them before or when the contract is concluded. If that did not happen, the other party can annul the terms, and the cap disappears with them.

Where both parties refer to their own terms, the first reference prevails unless the other party expressly rejects it (the so-called battle of forms). Our explanation of general terms and conditions sets out the mechanics.

Which other clauses reduce your exposure?

Two further contractual tools do real work. A complaint clause fixes a period within which defects must be reported. It supports the statutory duty in article 6:89 BW to protest within a reasonable time, and a counterparty that loses its right to complain gives the supplier one of its most effective defences. An indemnity, unlike a limitation clause, shifts a third-party claim to your counterparty. It is the standard answer where a subcontractor works at your customer’s premises.

Which time limits can you rely on as a defence?

A claim that is not brought in time does not have to be paid.

A claim for damages, for a wrongful act or a breach of contract, becomes time-barred (verjaard) five years after the day on which the injured party became aware of both the damage and the person liable, and in any event twenty years after the event, under article 3:310 BW. A claim for performance of a contractual obligation is generally subject to a five-year period running from the day performance became due. A limitation period can be interrupted by a written notice that unambiguously reserves the right to performance, as article 3:317 BW requires. An informal complaint is not always enough.

Alongside limitation runs the duty to complain in article 6:89 BW. A buyer or client who discovers a defect must protest within a reasonable time. What is reasonable depends on the nature of the contract and the damage. The fixed two-month period that is sometimes quoted applies only to consumer sales of movable goods, not to commercial contracts or to the purchase of a house, where the standard remains a reasonable period. The practical consequence for your business is simple: record complaints in writing, with a date, and do not let a discussion run for months without recording it.

Which regulatory duties can turn into liability?

A growing part of corporate exposure comes from statutory duties. Breaching them can be a wrongful act under article 6:162 BW, and regulators can also enforce them with fines.

Since 15 August 2026 the Cyber Security Act (Cyberbeveiligingswet), the Dutch implementation of the NIS2 Directive, applies to organisations providing essential or important services. They must register with the National Cyber Security Centre (NCSC), take appropriate risk management measures, and report a significant incident as soon as possible and in any event within 24 hours, followed by a fuller report within 72 hours. Under the General Data Protection Regulation (GDPR), a personal data breach must generally be notified to the Dutch Data Protection Authority (Autoriteit Persoonsgegevens) within 72 hours, and those affected can claim compensation for damage.

What changed for sustainability due diligence?

The picture changed with the Omnibus revision. Directive (EU) 2026/470 amended the Corporate Sustainability Due Diligence Directive (CSDDD). The harmonised, EU-wide civil liability regime of the original directive has been removed, and Member States must set a maximum penalty of 3% of net worldwide turnover. The due diligence rules will apply to companies in scope from 26 July 2029.

Claims against companies over climate and environmental harm therefore continue to be brought on the ordinary basis of article 6:162 BW, as in the Shell proceedings. On 12 November 2024 The Hague Court of Appeal set aside the reduction order of 2021 (ECLI:NL:GHDHA:2024:2099), but held that Shell does have an obligation to help combat dangerous climate change. Milieudefensie has taken the case to the Supreme Court (Hoge Raad). It is not accurate to say that the Climate Act (Klimaatwet) imposes liability on individual companies; it sets targets for government policy.

What about artificial intelligence?

Under the AI Act (Regulation (EU) 2024/1689), the prohibited practices have applied since 2 February 2025 and the rules for general-purpose AI models since 2 August 2025. The high-risk regime has been postponed by the AI Omnibus: to 2 December 2027 for the systems listed in Annex III, and to 2 August 2028 for those under Annex I. The proposed AI Liability Directive has been withdrawn. Damage caused by an AI system is therefore assessed under the ordinary rules of Dutch liability law and, once transposed, under the revised product liability regime.

What should you check as a supplier?

As a supplier, you want a cap that holds in court. Check your contracts with the most turnover first.

• Were your general terms provided before or when the contract was concluded (Article 6:234 BW)?
• Does the clause contain a proportionate cap and an exclusion of consequential loss, rather than a blanket exclusion?
• Is the cap aligned with the amount your liability insurer pays out?
• Do you have a complaint period and an indemnity for third-party claims?
• Do you record complaints and notices in writing, with a date, to rely on Articles 6:89 and 3:310 BW?

What should you check as a customer?

As a customer, you want to know what you can still recover if the supplier fails. A cap that looks reasonable on paper can leave you with most of the loss.

• Is the supplier’s cap in proportion to the damage a failure could realistically cause you?
• Does the exclusion of consequential loss cover lost profit and business interruption that matter most to you?
• Did you reject the supplier’s general terms expressly when you referred to your own (Article 6:225(3) BW)?
• Have you sent a written notice of default (Article 6:82 BW) and reserved your claim to interrupt limitation (Article 3:317 BW)?

What can we do for you with business liability?

We advise businesses on liability in contract and in tort; see also our corporate lawyer page.

• We review your general terms and liability clauses and check how they are incorporated into your contracts.
• We draft a proportionate cap, an exclusion of consequential loss, a complaint clause and an indemnity.
• We align your liability clauses with your insurance cover.
• We send a notice of default or interrupt a limitation period on your behalf.
• We assess or defend a liability claim from a customer or a third party.

Summary

• A business is liable in contract (article 6:74 BW) and in tort (article 6:162 BW); only the contractual claim can be capped by the contract.
• The law attributes the conduct of employees, subcontractors and representatives, and the risks of products, buildings and substances, to the business (articles 6:170-6:181 BW).
• A proportionate cap in validly incorporated terms usually holds; a blanket exclusion, or one relied on after intent or conscious recklessness, usually does not.
• Product liability cannot be excluded towards the injured party, and the new EU product liability rules apply to products placed on the market after 9 December 2026.
• Limitation periods, the duty to complain, and duties under the Cyber Security Act and the GDPR are part of your exposure and your defence.

Frequently asked questions