Dutch Civil Code

Book 6 The law of obligations

Title 6.5 Agreements in general

Section 6.5.1 General provisions

Article 6:213 Definition of an ‘obligatory agreement’
- 1. An agreement in the sense of this Section is a more-sided (multilateral) juridical act under which one or more parties have subjected themselves to an obligation towards one or more other parties.
- 2. The statutory provisions for agreements of this Section do not apply to an agreement between more than two parties, as far as the necessary implications of the concerned provision, in connection with the nature of the agreement, opposes to this.

Article 6:214 Additional regulations by Order in Council for agreements in specific economic sectors *)
- 1. If, with regard to a specific profession or economic sector, a Standard Regulation has been issued for agreements entered into by one of the parties in the course of his professional practice or business, then this agreement is not only subject to the rules of law, but also to the rules of that Standard Regulation. The particular types of agreements for which Standard Regulations may be issued and the profession or economic sector which may fall under the scope of such Regulations, shall be selected by Order in Council.
- 2. A Standard Regulation shall be made, amended and repealed by a commission that is to be appointed by the Ministry of Justice. Additional rules will be set by law with regard to the way how these commissions must be formed and their working method.
- 3. The making, amendment or withdrawal of a Standard Regulation cannot become effective before it has been approved by the Crown and before it has been published, with approval of the Crown, in the Dutch Government Gazette.
- 4. A Standard Regulation may derogate from rules of law as far as a derogation from these rules would as well be allowed under an agreement between private parties, whether or not subject to specific formal requirements. The previous sentence does not apply when a statutory provision implies otherwise.
- 5. Parties may in their agreement derogate from the rules of a Standard Regulation. The Standard Regulation may, however, indicate that such a derogation must meet specific formal requirements.

*) Upon till now such additional regulations have never been issued.

Article 6:215 Agreements with a mixed character
When an agreement has the characteristics of two or more statutory regulated specific types of agreements, then the specific statutory provisions for each of these types shall apply simultaneously to the agreement, except as far as these provisions are not easily compatible or their necessary implications, in connection with the nature of the agreement, oppose against a simultaneous application.

Article 6:216 Connecting provision
The provisions of the following four Sections apply accordingly to other more-sided (multilateral) juridical acts related to property law, as far as the necessary implications of the involved provisions in connection with the nature of the juridical act do not oppose against such an application.

Section 6.5.2 Formation of agreements

Article 6:217 Offer and acceptance (permissive law)
- 1. An agreement comes to existence by an offer and its acceptance.
- 2. Articles 6:219 up to and including 6:225 apply to the formation of an agreement, unless the offer, another juridical act or common practice implies differently.

Article 6:218 Validity and nullity of an offer
An offer is valid, voidable or null and void in accordance with the rules for more-sided (multilateral) juridical acts.

Article 6:219 Revocable offer; offer without engagement for the offeror; option rights
- 1. An offer may be revoked, unless it points out a period for its acceptance or its irrevocability results in another way from the offer.
- 2. A revocable offer can only be revoked as long as it has not been accepted and the addressed party has not yet sent a message in which he accepts the offer. When the offer contains the additional message that it is made without engagement for the offeror (without liability for the offeror), it may even be revoked after it has been accepted, provided that this is done immediately after the moment on which the acceptance is received.
- 3. A contractual provision under which one of the parties has engaged himself to enter into a specific agreement with the opposite party as soon as the opposite party requests so, is regarded as an irrevocable offer.

Article 6:220 Offer for a reward (made to the public)
- 1. An offer for a reward that stands for a limited time can be revoked or changed for important reasons.
- 2. Where an offer for a reward has been revoked or changed, the court may grant fair compensation to someone who has started because of it with the preparation of the requested performance.

Article 6:221 Ending of a verbal or written offer and of a rejected offer
- 1. A verbal offer ceases to exist when it is not immediately accepted, a written offer when it is not accepted within reasonable time.
- 2. An offer ceases to exist when it is rejected.

Article 6:222 Effect on the offer of the death or legal incapacity of one of the parties or of a fiduciary administration
An offer that has been made, does not lose its force because afterwards one of the parties dies of loses his legal capacity to perform juridical acts, nor because afterwards one of the parties is no longer able to enter into the intended agreement independently as a result of a fiduciary administration of his property.

Article 6:223 Overdue acceptance
- 1. Where the offer has been accepted to late (out of time), the offeror may still treat it as a an acceptance in time, provided that he notifies the opposite party immediately thereof.
- 2. Where the offer has been accepted to late (out of time), but the offeror understands or should have understood that this was not clear for the opposite party, the acceptance is considered to be made in time, unless the offeror notifies the opposite party immediately that he regards the offer as expired.

Article 6:224 Time of conclusion of the agreement
If an acceptance does not reach the offeror at all or if it has not reached him in time due to an event which pursuant to Article 3:37 paragraph 3, second sentence, of the Civil Code still makes it effective, then the agreement is considered to have been entered into at the moment on which the acceptance would have been received if the intruding event would not have occurred.

Article 6:225 An acceptance which differs from the offer (‘Battle of Forms’)
- 1. The acceptance of an offer, made under different or additional conditions, is regarded as a new offer and as a rejection of the original offer.
- 2. Where a reply, that is intended as an acceptance, only differs from the offer on secondary issues, it will be a valid acceptance, which will form a binding agreement in accordance with the content of this acceptance, unless the offeror immediately objects against the differences.
- 3. Where offer and acceptance refer to the application of different standard terms and conditions, the second reference is without effect if it does not explicitly rejects the application of the standard terms and conditions to which was referred firstly.

Article 6:226 Formal requirements of an up-front agreement
Where a statutory provision sets a formal requirement for the formation of an agreement, this formal requirement shall apply as well to an agreement under which one of the parties, in whose interest the formal requirement is set, engages himself to enter into an agreement for which the law has set that formal requirement, unless the necessary implications of the involved statutory provision imply differently.

Article 6:227 An obligation must be determinable
The obligations to which parties subject themselves under the agreement, must be determinable.

Article 6:227a Agreements formed by electronic means
- 1. If a statutory provision implies that an agreement can only be formed validly and inviolably (unchallengeable) in writing, then this formal requirement will be met as well if the agreement is entered into by electronic means and:
a. the agreement is and remains accessible for the parties;
b. the authenticity of the agreement is sufficiently guaranteed;
c. the moment on which the agreement was formed, can be determined with sufficient certainty, and
d. the identity of the parties can be assessed with sufficient certainty.
- 2. Paragraph 1 does not apply to agreements for which the law requires the intervention of a court, a public authority or a person whose profession it is to exercise a public responsibility.

Article 6:227b Information to be provided prior to the formation of an electronic contract
- 1. Before an agreement is concluded by electronic means, the person who provides a service of the information society as meant in Article 3:15d, paragraph 3, of the Civil Code must inform the opposite party in a clear, comprehensible and unambiguous way about at least:
a. the way in which the agreement will be concluded and, in particular, which operations are necessary to come to this result;
b. whether or not the concluded agreement will be filed by the service provider and, if so, how it will be accessible for the opposite party;
c. the way in which the opposite party will be able to identify actions which he did not want to perform and the way in which he may correct input errors, prior to the conclusion of the agreement;
d. the languages offered for the conclusion of the agreement;
e. the codes of conduct to which the service provider has submitted himself and how those codes can be consulted electronically by the opposite party.
- 2. Before or at the conclusion of the agreement the terms and conditions of the agreement, not being standard terms and conditions as meant in Article 6:231, must be made available to the opposite party in such a way that he is able to store them and read (examine) or reproduce them afterwards.
- 3. Paragraph 1 does not apply to agreements concluded exclusively by exchange of electronic mail or by equivalent individual communications.
- 4. An agreement which has been formed under the influence of a violation by the service provider of one of his obligations meant in paragraph 1, under point (a), (c) or (d), is voidable. If the service provider has not met one of his obligations meant in paragraph 1 under point (a) or (c), then it is presumed that the agreement has been formed under the influence of a violation of these obligations.
- 5. The opposite party may rescind the agreement as long as the service provider has not yet supplied all the information meant in paragraph 1, under point (b) and (e) or paragraph 2.
- 6. It is only possible to derogate from the provisions of paragraph 1 where it concerns a relation between parties who both have entered into the agreement in the course of their professional practice or business.

Article 6:227c Further obligations for the conclusion of electronic agreements
- 1. A person who provides a service of the information society as meant in Article 3:15d paragraph 3, of the Civil Code makes available to the opposite party, and this prior to the conclusion of the agreement, appropriate, effective and accessible means, allowing the opposite party to identify actions which he did not want to perform and to correct input errors;
- 2. If the opposite party has made an announcement by electronic means that may be interpreted by the service provider either as the acceptance of an offer which the service provider has made by electronic means or as an offer in response of an invitation to start negotiations made by the service provider by electronic means, then the service provider will confirm that he has received this announcement as soon as possible by electronic means. The opposite party may rescind the agreement as long as the service provider has not confirmed that he has received an acceptance.
- 3. The announcement meant in paragraph 2 and the positive confirmation will be regarded to have been received when they are accessible for the parties to whom they were addressed.
- 4. Paragraph 1 and 2 do not apply to agreements concluded exclusively by exchange of electronic mail or by equivalent individual communications.
- 5. An agreement which has been formed under the influence of a violation of the service provider of his obligations meant in paragraph 1, is voidable. If the service provider has not met his obligations meant in paragraph 1, then it is presumed that the agreement has been formed under the influence of a violation of these obligations.
- 6. It is only possible to derogate from the provisions of the present Article when the agreement has been concluded between parties who both, when entering into the agreement, acted in the course of their professional practice or business.

Article 6:228 Fundamental mistake
- 1. An agreement which has been entered into under the influence of a mistake with regard to the facts or legal rights and which would not have been concluded by the mistaken party if he would have had a correct view of the situation, is voidable:
a. if the mistake is caused by information given by the opposite party, unless this party could assume that the agreement would be concluded even without this information;
b. if the opposite party, in view of what he knew or ought to have known about this mistake, should have informed the mistaken party about his error;
c. if the opposite party, at the moment on which the agreement was entered into, had the same incorrect assumption as the mistaken party, unless he could have believed that the mistaken party, if this party had known the mistake, still would have entered into the agreement.
- 2. A nullification on the ground of a fundamental mistake cannot be based on a mistake which is exclusively related to a fact that, at the moment on which the agreement was entered into, still had to happen (fact in future) or that should remain for account of the mistaken party in view of the nature of the agreement, the general principles of society (common opinion) or the circumstances of the case.

Article 6:229 Agreement based on a non-existent legal relationship
An agreement which necessarily implicates to elaborate on an already existing legal relationship between parties, is voidable if this legal relationship does not exist, unless the nature of the agreement, the general principles of society (common opinion) or the circumstances of the case imply that the non-existence of that legal relationship should remain for account of the person who appeals to its non-existence.

Article 6:230 Right of nullification ends when the disadvantageous effects of the voidable agreement are removed
- 1. The right to nullify a voidable agreement on the basis of Article 6:228 or 6:229 ceases to exist when the opposite party timely makes a proposal to change the effects of the voidable agreement in such a way that the loss, which otherwise would be suffered by the party with the right of nullification, is sufficiently removed.
- 2. Upon the request of one of the parties, the court may furthermore, in stead of nullifying the voidable agreement, change its effects in order to remove the loss which otherwise would be suffered by the party with the right of nullification.

Section 6.5.2a Information about providers and their services on account of the EC Directive on services

Article 230a Definitions
In this section the term:
- 'recipient' means any natural person who is a national of a Member State or who benefits from rights conferred upon him by Community acts, or any legal person as referred to in Article 48 of the Treaty and established in a Member State, who, for professional or non-professional purposes, uses, or wishes to use, a service;
- 'competent authority' means a governing body or another body or authority that fulfils a role on the field of exercising supervision, issuing official licences (permits) or ordaining regulations in relation to service activities;
'central office' means the single point of contact referred to in Article 5, paragraph 1, of the Service Act;
- 'service' means any self-employed economic activity, normally provided for remuneration (non-gratuitously) as referred to in Article 50 of the Treaty;
- 'provider' means any natural person who is a national of a Member State, or any legal person as referred to in Article 48 of the Treaty and established in a Member State, who offers or provides a service;
'Member State' means a Member State of the European Union or European Economic Area;
- 'license' means any decision, either formal or implied, concerning access to a service activity or the exercise thereof;
- 'authorisation scheme' means any procedure under which a provider or recipient is in effect required to take steps in order to obtain a license;

Article 230b Information duty
The provider who provides services as meant in Directive 2006/123/EC of the European Parliament and the Council of the European Union of 12 December 2006 on services in the Internal Market (OJEU L 376), makes the following information available to the recipient of those services:
(1) the name of the provider, his legal status and form, the geographic address at which he is established and details enabling him to be contacted rapidly and communicated with directly and, as the case may be, by electronic means;
(2) where the provider is registered in a trade or other similar public register: the name of that register and the provider's registration number, or equivalent means of identification in that register;
(3) where the activity is subject to an authorisation scheme: the particulars of the relevant competent authority or the central office (single point of contact);
(4) where the provider exercises an activity which is subject to VAT: the identification number referred to in Article 214, first paragraph, under (a), of Directive 2006/112/EC of the European Union of November 28, 2006 on the common system of tax added value (OJEU L 347);
(5) in the case of the regulated professions: any professional body or similar institution with which the provider is registered, the professional title and the Member State in which that title has been granted;
(6) the standard terms and conditions and contractual stipulations, if any, used by the provider;
(7) the existence of contractual provisions, if any, used by the provider concerning the law governing the contract and/or the competent courts;
(8) the existence of an after-sales guarantee, if any, not imposed by law;
(9) the price of the service, where a price is pre-determined by the provider for a given type of service;
(10) the main features of the service, if not already apparent from the context;
(11) the insurance or guarantees referred to in Article 23(1) of Directive 1003/123/EC, and in particular the contact details of the insurer or guarantor and the territorial coverage;
(12) the address, including a postal address, fax number or email address, and telephone number to which all recipients, including those resident in another Member State, can send a complaint or a request for information about the service provided. Providers shall supply their legal address if this is not their usual address for correspondence. Providers shall respond to the complaints in the shortest possible time and make their best efforts to find a satisfactory solution.
(13) when a provider is subject to a code of conduct or when he is a member of a trade association or professional body that provides for recourse to a non-judicial means of dispute settlement: the information in respect thereof. The provider shall mention that fact in any document in which his services are described in detail, with a specification how to gain access to detailed information on the characteristics of, and conditions for, the use of non-judicial means of dispute settlement.

Article 230c Ways to supply the necessary information
The information referred to in Article 6:230b, must be, according to the provider's preference:
(1) supplied by the provider on his own initiative;
(2) easily accessible to the recipient at the place where the service is provided or the contract concluded;
(3) easily accessible to the recipient electronically by means of an address supplied for this purpose by the provider, or;
(4) included in any information documents supplied to the recipient by the provider which set out a detailed description of the service he provides

Article 230d Supply of additional information upon request of the recipient
At the recipient's request, the providers referred to in Article 6:230b shall supply the following additional information:
(1) where the price is not pre-determined by the provider for a given type of service: the price of the service or, if an exact price cannot be given, the method for calculating the price so that it can be checked by the recipient, or a sufficiently detailed estimate;
(2) as regards regulated professions: a reference to the professional rules applicable in the Member State of establishment and how to access them;
(3) information on their multidisciplinary activities and partnerships which are directly linked to the service in question and on the measures taken to avoid conflicts of interest. That information shall be included in any information document in which providers give a detailed description of their services;
(4) any codes of conduct to which the provider is subject and the address at which these codes may be consulted by electronic means, specifying the language version available;

Article 230e Use of clear and unambiguous language
The information which a provider must supply in accordance with this Section is made available or communicated in a clear and unambiguous manner, and in good time before conclusion of the contract or, where there is no written contract, before the service is provided.

Article 230f Further rules by Order in Council
By Order in Council specific rules may be set for the implementation of regulations based on Article 22, sixth paragraph, of Directive 2006/123/EC on services (OJEU L 376).

Section 6.5.3 Standard terms and conditions

Article 6:231 Definitions
For the purpose of this Section:
a. ‘standard terms and conditions’ mean one or more contractual provisions or stipulations, drafted to be included in a number of contracts, with the exception of provisions and stipulations that indicate the essence of the performance under the obligation, as far as these last meant provisions and stipulations have been formulated clear and unambiguous;
b. a ‘user’ means the person who uses standard terms and conditions in a contract;
c. a ‘counterparty’ means the person who has accepted the applicability of the standard terms and conditions of the user by signing a written document or in another way.

Article 6:232 Standard terms and conditions are only named by their title or heading
Where the counterparty has accepted the applicability of the user’s standard terms and conditions, he is also bound by them if the user understood or ought to have understood that his counterparty, at the moment on which the contract was entered into (became binding), did not really know the content of these terms and conditions.

Article 6:233 Voidable stipulations from the applicable standard terms and conditions
A stipulation from the applicable standard terms and conditions is voidable:
a. if it is unreasonably burdensome for the counterparty, having regard to the nature and content of the contract, the way in which these standard terms and conditions have been formed, the interests of each party, as evident to the other, and the other circumstances of the case;
b. if the user has not given his counterparty a reasonable opportunity to take knowledge of the content of the applicable standard terms and conditions.

Article 6:234 Reasonable opportunity to take knowledge of the standard terms and conditions
- 1. The user has given his counterparty the opportunity meant in Article 6:233, under (b), if he has handed over his standard terms and conditions prior to or at the conclusion of the contract, if he has provided these terms and conditions in conformity with the manner mentioned in Article 6:230c or, where this reasonably is not possible, if he has made known to his counterparty prior to the conclusion of the contract that his standard terms and conditions are available for inspection by the counterparty at a specific Chamber of Commerce or at the Registry of a specific judicial court, and that they will be sent to him upon first request. If the standard terms and conditions have not been handed over to the counterparty prior to or at the conclusion of the contract, the stipulations (clauses) therein shall be voidable as well if the user has not, upon the request of the counterparty, sent without delay and at his expense his standard terms and conditions to his counterparty. What is provided regarding the obligations of the user to send his standard terms and conditions to his counterparty does not apply insofar as it reasonably cannot be expected of the user that he sends his standard terms and conditions to his counterparty.
- 2. The user has also given his counterparty the opportunity as meant in Article 6:233, under (b), if he has placed his standard terms and conditions prior to or at the conclusion of the contract at the disposal of his counterparty by electronic means of communication in such a way that these terms and conditions can be saved by the counterparty so that they remain available to him for later inspection or, where this reasonably is not possible, when the user has made known to his counterparty prior to the conclusion of the contract where his standard terms and conditions can be inspected by electronic means of communication, and that they will be sent to the counterparty, upon the counterparty’s request, by electronic means of communication or in another manner.
If the standard terms and conditions have not been placed prior to or at the conclusion of the contract at the disposal of the counterparty by electronic means of communication, the stipulations (clauses) therein shall be voidable as well when the user has not, upon the request of the counterparty, sent without delay and at his expense his standard terms and conditions by electronic means of communication or in another manner to his counterparty.
- 3. Where the contract itself is not concluded by electronic means of communication, the explicit consent of the counterparty is required for providing a reasonable opportunity to take knowledge of the content of the standard terms and conditions in a manner as meant in paragraph 2.

Article 235 Non-application of Articles 6:233 and 6:234 and prescription period
- 1. The following counterparties cannot nullify the standard terms and conditions of the user on de grounds of voidability meant in Articles 6:233 and 6:234:
a. a legal person meant in Article 2:360 of the Civil Code, who at the time of conclusion of the contract has made his last annual account public or to whom prior to that time Article 2:403, paragraph 1, of the Civil Code has been applied;
b. a party to whom the provisions under point (a) do not apply, if from a registration pursuant to the Commercial Register Act shows that he has fifty or more employees in service at the before-mentioned time of the conclusion of the contract.
- 2. If a representative, when concluding a contract in the name of a party, has declared certain standard terms and conditions applicable to that contract, then the represented party may nullify these standard terms and conditions on the ground of voidability meant in Article 6:233 under point (a), provided that his counterparty frequently enters into contracts which are governed by the same or nearly the same standard terms and conditions.
- 3. A counterparty or a party who has frequently applied the same or nearly the same standard terms and conditions to his contracts, cannot nullify these standard terms and conditions on the grounds of voidability meant in Articles 6:233 and 6:234.
- 4. The prescription period for the nullification of a voidable juridical act, as meant in Article 3:52, paragraph 1, under point (d), starts to run from the day following the one on which a stipulation from the applicable standard terms and conditions has been invoked for the first time [by the user].

Article 6:236 ‘Black list’ of stipulations which are always unreasonably burdensome for consumers
In a contract between a user and a counterparty, being a natural person who did not act in the course of his professional practice or business when he entered into that contract, the following stipulations in the applicable standard terms and conditions are deemed to be unreasonably burdensome for that counterparty:
a. a stipulation which deprives the counterpart entirely and unconditionally from his right to claim the performance to which the user has engaged himself;
b. a stipulation which excludes or limits the right of the counterparty to rescind the contract as provided by Section 6.5.5 of the Civil Code;
c. a stipulation which excludes or limits the right that the counterparty has pursuant to law to withhold performance of his own obligation or which grants the user a more extensive right to withhold his performance than he has pursuant to law;
d. a stipulation which leaves the decision whether the user has failed to perform one or more of his obligations to the user or which makes the exercise of the legal rights which the counterparty has pursuant to law in the event of a non-performance of the user dependent on the condition that the counterparty first must have brought a legal claim against a third person to court;
e. a stipulation under which the counterparty has granted the user in advance permission to pass (alienate) the user’s obligations, arising from the contract, to a third person in a way as referred to in Section 6.2.3 of the Civil Code [debt assumption or transfer of a contractual position], unless the counterparty at all times is entitled to rescind the contract, or unless the user remains towards the counterparty responsible (liable) for the performance of these obligations by that third person or unless the passage (alienation) of these obligations takes place within the framework of a transfer of a business or enterprise to which both, these obligations and the accompanying rights, belong.
f. a stipulation which necessarily implicates that, in the event that the user’s rights from the contract pass (are alienated) to a third person, the rights and means of defence which the counterparty pursuant to law may uphold against this third person, are excluded or limited;
g. a stipulation which shortens a prescription period or an expiration period, during which the counterparty has to make any right effective, to a period of less than one year;
h. a stipulation which, in the event that during the performance of the contract damage has been caused to a third person by the user or a person or thing for which he is responsible (liable), forces the counterparty either to pay compensation (damages) to that third person, or to contribute in that compensation for a larger share than he would have pursuant to law in view of his (internal) relationship with the user;
i. a stipulation which gives the user the right to increase the agreed price within three months after the conclusion of the contract, unless the counterparty is contractually entitled to rescind the contract in the event that the user exercises this right;
j. a stipulation which, in the event of a contract for the regular supply (delivery) of goods, including energy, yet excluded daily papers, newspapers and magazines, or for the regular provision of services, will lead to a tacit (silent) prolongation or renewal of that contract for a certain period or to a tacit (silent) continuation for indefinite time without the right for the counterparty to terminate the continued contract at all times with due observance of a term of notice for termination of at the most one month;
k. a stipulation which excludes or limits the possibilities of the counterparty to provide evidence or which changes the burden of proof as distributed by law to the disadvantage of the counterparty, either because it contains a declaration of the counterparty with regard to the quality of the user’s performance or because it charges the counterparty with the burden of proof of the fact that the failure of the user to perform his obligation is attributable to the user;
l. a stipulation which derogates to the disadvantage of the counterparty from the provisions of Article 3:37, unless it is related to the form of the announcements to be made by the counterparty or it states that the user may continue to regard the address, given to him by the counterparty, as the counterparty's address until a new address has been notified to him;
m. a stipulation under which the counterparty, who at the moment of the conclusion of the contract has his real domicile (habitual residence) in a municipality in the Netherlands, chooses another domicile (habitual residence) for another reason than with regard to the possibility that the counterparty may in future not have a known real domicile (habitual residence) in that municipality, unless the contract relates to registered property (immovable property and registered ships and aircraft) and domicile (habitual residence) is chosen at the office of a notary;
n. a stipulation which provides for the settlement of a dispute other than by a court with jurisdiction pursuant to law or by one or more arbitrators, unless it still allows the counterparty to choose for a settlement of the dispute by the court with jurisdiction pursuant to law and this choice can be made within a period of at least one month after the user has invoked the stipulation in writing.

Article 6:237 ‘Grey list’ of stipulations which are presumed to be unreasonably burdensome for consumers
In a contract between a user and a counterparty, being a natural person who did not act in the course of his professional practice or business when he entered into that contract, the following stipulations in the applicable standard terms and conditions are presumed to be unreasonably burdensome for the counterparty:
a. a stipulation which, taking into account the circumstances of the situation, allows the user an unusually long or an insufficiently precise period to react to an offer or to another declaration (message) of the counterparty;
b. a stipulation which substantially limits the meaning of the obligations of the user in comparison to what the counterparty, also in view of the statutory provisions that govern the agreement, reasonably could have expected to obtain without this stipulation;
c. a stipulation which gives the user the right to provide a performance which is substantially different from the promised performance, unless the counterparty is contractually entitled to rescind the contract in the event that the user exercises this right;
d. a stipulation which releases the user of his obligations imposed on him by the contract or which gives him the right to release himself from these obligations in another way, unless the grounds therefore are mentioned in the contract itself and are of such a nature that the user can no longer be expected to be bound by the contract;
e. a stipulation which allows the user an unusually long or an insufficiently precise period to perform his obligations;
f. a stipulation which releases the user or a third person in full or in part from his statutory liability for damages;
g. a stipulation which excludes or limits the counterparty’s right of setoff as granted to him under law or which offers the user a more extensive right of setoff than he has pursuant to law;
h. a stipulation which, as a penalty for certain actions or passive behaviour of the counterparty, indicates that the counterparty will loose specific rights or means of defence, except as far as the loss of these rights or means of defence is justified by these actions or this passive behaviour;
i. a stipulation which forces the counterparty, in the event that the contract is ended for another reason than a failure of the counterparty in the performance of his obligation, to pay a sum of money, except as far as it concerns a reasonable compensation for the loss or missed profits of the user;
j. a stipulation which forces the counterparty to enter into another contract with the user or a third person, unless this can reasonably be expected of the counterparty, in view of the connection between that contract and the contract referred to in this Article;
k. a stipulation which sets a duration of more than one year for a contract as meant in Article 6:236 under point (j), unless the counterparty is contractually entitled to terminate the contract after each year;
l. a stipulation which commits the counterparty to a term of notice for termination of the contract of more than three months or for a longer term of notice than the one that the user has to observe for termination of the contract;
m. a stipulation which requires a more stringent form for the validity of a declaration (message) of the counterparty than a written announcement or private deed;
n. a stipulation which indicates that a procuration (power of attorney), granted by the counterparty, is irrevocable or will not end when the counterparty dies or is placed under adult guardianship, unless this procuration (power of attorney) consists of the right to represent and act in the name of the counterparty with regard to a transfer of registered property;
o. a stipulation which excludes or limits the right of the counterparty to terminate a contract that has been entered into verbally, in writing or by electronic means of communications in the same way as in which that contract was entered into;
p. a stipulation which, in the case of a contract for the regular supply (delivery) of daily papers, newspapers or magazines, will lead to a tacit (silent) prolongation or renewal of that contract for a period extending three months, or to a tacit (silent) prolongation or renewal of that contract for a period less than three months without the right for the counterparty to terminate the contract each time at an effective date of termination at the end of the duration of the prolongation or renewal with due observance of a term of notice for termination of at the most one month;
q. a stipulation which, in the case of a contract for the regular supply (delivery) of daily papers, newspapers or magazines, will lead to a tacit (silent) continuation in a contract for an indefinite time without the right for the counterparty to terminate the continued contract at all times with due observance of a term of notice for termination of at the most one month or, where the regular supply (delivery) is performed less than once a month, of a term of notice for termination of at the most three months.
r. a stipulation which compels the counterparty to announce the termination notice in regard of the termination of a contract as meant under (j) or (p) or, respectively, under (q) at a certain moment;
s. a stipulation which, in case of a contract with a limited duration for the regular supply (delivery) of daily papers, newspapers or magazines in order to get acquainted with these products, will lead to a continuation of the contract.

Article 6:238 Representation solely on the basis of a stipulation in the standard terms and conditions
- 1. Under a contract as meant in Articles 6:236 and 6:237 the following facts cannot be invoked against a counterparty as meant in those Articles:
a. the fact that the contract has been concluded in the name of a third person (represented principal), if this result is solely based on a stipulation in the applicable standard terms and conditions with such effect;
b. the fact that the standard terms and conditions contain restrictions of the procuration (power of attorney) of a representative of the user that are so unusual that the counterparty, if a stipulation with such restrictions would not have been included in the standard terms and conditions, should not have expected them, unless he was actually aware of its existence.
- 2. The contractual provisions of a contract as meant in Articles 6:236 and 6:237 [including the standard terms and conditions applying to that contract] must always be drafted in plain, intelligible language. Where there is doubt about the meaning of a contractual provision, the interpretation most favourable to the counterparty shall prevail.

Article 6:239 Amendment of the grey list of Article 6:237 by Order in Council *)
- 1. The provisions of Article 6:237, under point (a) up to and including point (n), may be amended by Order in Council; the same applies with regard to the scope and field of the application of these provisions.
- 2. Before making a Bill intending to enact, amend or repeal an Order in Council as meant in paragraph 1, the Ministry of Justice may hear one or more institutions or organisations that, in its opinion, are representative for those who are used to apply standard terms and conditions to contracts for which the Ministry’s decision will be effective and for those who participate in such contracts as their counterparty.
- 3. As soon as a decision meant in the first paragraph has been made, it will be sent to the Presidents of the Second and First Chamber of Parliament. Such a decision does not become effective before two months have passed since the date on which it was published in the Dutch Government Gazette.

*) Upon till now such amendments or limitations have never been issued.

Article 6:240 Right of action of and against legal persons protecting the interests of others
- 1. On the basis of a right of action (legal claim) of a legal person as meant in paragraph 3, the court may, by means of a declaratory judgment, declare specific stipulations in specific standard terms and conditions unreasonably burdensome; Articles 6:233, under point (a), 6:236 and 6:237 apply in that event accordingly. For the purpose of the previous sentence a stipulation in standard terms and conditions that is in conflict with a rule of mandatory law is deemed to be unreasonably burdensome. In examining and considering a stipulation the interpretation rule of Article 6:238, paragraph 2, second sentence, does not apply.
- 2. The right of action (legal claim) may be instituted (filed) against the user of the relevant standard terms and conditions as well as against a legal person with full legal capacity whose objective it is to protect the interests of persons conducting a professional practice or business, provided that this legal person promotes the use of the relevant standard terms and conditions by those persons.
- 3. The right of action (legal claim) may be instituted (filed) by a legal person with full legal capacity whose objective it is to protect the interests of persons conducting a professional practice or business or the interests of end-users of goods or services not to be used in the conduct of a professional practice or business. The right of action (legal claim) may only relate to standard terms and conditions which are used or are intended to be to be used in contracts with persons whose interests are protected by this legal person.
- 4. The plaintiff’s right of action (legal claim) is not admissible if he cannot make plausible that, before the right of action (legal claim) was instituted (filed), he has given opportunity to the user or, in a situation as referred to in Article 1003 of Code of Civil Procedure, to the Association ('vereniging') meant in that Article, to change or adjust the standard terms and conditions in mutual consultation in such a way that the objections on which the right of action (legal claim) would be based, are removed. A period of two weeks after the defendant has received a request for consultation, indicating as well the objections of the plaintiff, will in any event be sufficient for this purpose.
- 5. As far as a legal person has agreed to the use of the relevant stipulations in these specific standard terms and conditions, he has no right of action (legal claim) as meant in paragraph 1.
- 6. With a legal person as meant in paragraph 3 is equated an organisation or public entity having its seat in the Netherlands and placed on the list referred to in Article 4, paragraph 3, of Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers' interests (OJ L 166), provided that the right of action (legal claim) is related to standard terms and conditions which are used or are intended to be to be used in agreements with persons who have their domicile (habitual residence) in the country where the organisation or public entity is established, and the organisation protects these interests in the course of its objective or the protection of these interests has been entrusted to the public entity.

Article 6:241 Procedural rules for a right of action (legal claim) meant in Article 6:240
- 1. The Court of Appeal at the Hague has exclusive jurisdiction over rights of action (legal claims) as meant in the previous Article.
- 2. The legal persons referred to in the previous Article may exercise the rights provided for by Article 217 and 376 of the Code of Civil Procedure. Article 379 of that Code, however, is not applicable.
- 3. The court’s judgement may be rendered, upon a claim of the plaintiff to this end, with an additional:
a. prohibition to use or to promote the use of the stipulations affected by the judgement;
b. order to withdraw a recommendation to use these stipulations;
c. order to publish the judgement in a way to be determined by court and at the expense of one or more parties.
- 4. The court may in its judgement indicate how the unreasonably burdensome character of the stipulation can be removed.
- 5. Disputes with regard to the enforcement of the prohibition or of the orders referred to in paragraph 3, as well as of a court order to pay a periodical non-compliance penalty, if imposed, fall under the exclusive jurisdiction of the Court of Appeal at the Hague.
- 6. The provisional relief judge of the District Court at the Hague has exclusive jurisdiction over rights of action (legal claims) pursuing a prohibition or order as referred to in paragraph 3, that are instituted (filed) in a summary relief procedure by a legal person as meant in Article 6:240 paragraph 3. Paragraph 5 of the present Article as well as Article 62, 116, paragraph 2, 1003, 1005 and 1006 of the Code of Civil Procedure apply accordingly to such a summary procedure.

Article 6:242 Amendment or cancellation of a judgement
- 1. A judgment as meant in Article 6:240, paragraph 1, may be amended or cancelled by the court on the basis that it is no longer justified in view of changed circumstances; one or more persons against whom this judgement was given, may bring a right of action (legal claim) to court for such purpose.
- 2. If the legal person upon whose right of action (legal claim) the judgement was given, has been dissolved, then the legal proceedings have to be initiated by a petition (application). For the purpose of Article 279 paragraph 1 of the Code of Civil Procedure, legal persons in the meaning of Article 6:240, paragraph 3, are regarded as interested parties.
- 3. Article 6:241, paragraph 1, 2, 3, under point (c), and paragraph 5, apply accordingly.
- 4. The previous paragraphs of the present Article do not apply as far as the judgement was related to a stipulation which is regarded by a statutory provision as unreasonably burdensome.

Article 6:243 Nullification of a prohibited stipulation
Where a judgment prohibits a person to make use of a certain stipulation in standard terms and conditions, but this person nevertheless keeps using this stipulation in these or similar standard terms and conditions when entering into a contract, this stipulation is voidable. Article 6:235 applies accordingly.

Article 6:244 The retailer in the middle of a distribution chain*)
- 1. A person who acts in the course of his professional practice or business may not invoke a contractual provision derived from the contract with his counterparty, if this counterparty, with regard to the goods or services to which their contract relates, has entered into a contract with one of his own customers using his own standard terms and conditions, as far as an appeal to that contractual provision would be unreasonable because of its close connection with a stipulation from that counterparty's standard terms and conditions, which stipulation has been nullified pursuant to this Section or which has been affected by a judgment as referred to in Article 6:240 paragraph 1.
- 2. Where a right of action (legal claim) as meant in Article 6:240, paragraph 1, has been instituted (filed) against the user, he is entitled to call the person referred to in paragraph 1 of the present Article to court in order to obtain a declaratory judgement in which is determined that an appeal to a contractual provision as meant in the previous paragraph would be unreasonable [would be in conflict with the standards of reasonableness and fairness]. Article 6:241, paragraph 2, 3 under point (c), 4 and 5, as well as Articles 210, 211 and 215 of the Code of Civil Procedure apply accordingly to this legal proceedings.
- 3. Article 6:242 applies accordingly to such a declaratory judgment of the court.
- 4. Paragraph 1 up to and including paragraph 3 of the present Article apply accordingly to the preceding contracts in the distribution chain related to the before-mentioned goods and services.

*) Comment to this Article:
This Article wants to protect a retailer who has used standard terms and conditions in contract with one of his customers, but who is faced with the fact that this customer (usually a consumer who is heavily protected by Articles 6:236 and 6:237) has nullified one or more of the stipulations from his standard terms and conditions, while the retailer himself, in his contract with his own supplier, is still bound by the same or similar stipulations excluding or limiting the supplier’s liability. Because the retailer merely resells the goods he has obtained from the supplier, it would be unfair if the damage caused by a defect in those goods could be recovered by the consumer from the retailer (nullifying all possible stipulations from the applicable standard terms and conditions of the retailer that might stand in the consumer’s way on the basis of the present Section), whereas the retailer himself is not able to recover this damage from his supplier, because the same or similar stipulations in the contract between him and the supplier or in the standard terms and conditions of the supplier governing that contract, prevent this, taking into account that the retailer is not a consumer who enjoys the protection of Articles 6:236 and 6:237, nor of some of the other statutory provisions of this Section. In such a situation the supplier in the previous link of the distribution chain cannot, within his legal relationship to the retailer, invoke a stipulation from his contract (not necessarily from his standard terms and conditions) with the retailer, if this would be unreasonable for the retailer in view of the fact that the same or a similar stipulation from the retailer’s standard terms and conditions has been nullified by a consumer on a ground which is not available for the retailer. Although the words ‘supplier’, ‘retailer’ and ‘consumer’ are used in this comment, the scope of Article 6:244 is not limited to this part of the distribution chain. It applies as well to previous (contractual) relationships within that chain. Nor is it limited to the delivery of goods. For this reason Article 6:244 uses more general words in order to express that all kinds of legal relationships within a chain of contracts fall within its scope.

Article 6:245 Section 6.5.4 is not applicable to individual employment contracts or collective labour agreements
This Section does not apply to individual employment contracts, nor to collective labour agreements.

Article 6:246 Mandatory law
It is not possible to derogate from the provisions of Articles 6:231 up to and including 6:244, nor from the provisions of an Order in Council as meant in Article 6:239 paragraph 1. Where a stipulation is voidable on the basis of this Section, the right to nullify it by means of an extra-judicial declaration cannot be excluded.

Article 6:247 Contracts with an international element (cross-border contracts)
- 1. This Section applies to contracts between parties who both act in the course of their professional practice or business when entering into the contract and who both have their domicile (habitual residence) in the Netherlands, irrespective of the law that is governing their contract.
- 2. This Section does not apply to contracts between parties who both act in the course of their professional practice or business when entering into the contract and who both have their domicile (habitual residence) outside the Netherlands, irrespective of the law that is governing their contract.
- 3. For the purpose of paragraph 1 and 2 a party is regarded to have his domicile (habitual residence) in the Netherlands if his head office or, when the contract indicates that the performance has to be carried out by a business establishment other than the head office, this business establishment is located in the Netherlands.
- 4. This Section applies to contracts between a user and a counterparty, being a natural person who did not act in the course of his professional practice or business when he entered into the contract, if this counterparty has his domicile (habitual residence) in the Netherlands, irrespective of the law that is governing their contract.

Section 6.5.4 Legal effects of agreements

Article 6:248 Legal effects arising from law, usage or the standards of reasonableness and fairness
- 1. An agreement not only has the legal effects which parties have agreed upon, but also those which, to the nature of the agreement, arise from law, usage (common practice) or the standards of reasonableness and fairness.
- 2. A rule, to be observed by parties as a result of their agreement, is not applicable insofar this, given the circumstances, would be unacceptable to standards of reasonableness and fairness.

Article 6:249 Acquirement under universal title
The legal effects of an agreement apply also to the parties’ legal successors under universal title, unless the agreement provides otherwise. However, in the event of the apportionment of a deceased’s estate pursuant to Article 4:13 of the Civil Code, the legal effects from the agreement do not apply to the children of the deceased, unless the agreement provides otherwise.

Article 6:250 Mandatory or permissive law
It is possible to derogate by agreement from the Articles of this Section that will follow as of now, with the exception of Articles 6:251, paragraph 3, 6:252, paragraph 2, insofar it concerns the requirement of a notarial deed, and 6:252, paragraph 3, 6:253, paragraph 1, 6:257, 6:258, 6:259 and 6:260.

Article 6:251 Qualitative rights
- 1. Where a transferable right arising from an agreement is connected in such a way to a specific property of the creditor that the creditor only has any interest in that right as long as he retains this property, this right will pass by operation of law to the person who acquires that property under particular title.
- 2. Where, in exchange of a right as meant in the previous paragraph, a counter performance has been agreed upon, the obligation to perform this counter performance passes too, as far as it is related to the period after the passage of the right connected to the passed property. The alienator remains liable, together with the acquiring party, for this counter performance, except insofar the counterparty to the agreement is able to release himself, after the passage, from his obligation towards the acquiring party by a rescission or termination of that agreement on the basis of non-performance of the counter performance.
- 3. The provisions of the previous two paragraphs do not apply if the acquiring party has notified the counterparty to the agreement that he does not accept the passage of the right.
- 4. From the juridical act under which the property has been transferred, may result that no rights from the agreement shall pass to another party.

Article 6:252 Qualitative obligation
- 1. It is possible to stipulate by agreement that the obligation of one of the parties to tolerate something or to refrain from doing something with regard to his own registered property, shall pass to all persons who will acquire that registered property under particular title, and that this obligation has to be observed as well by persons who will obtain a right of use of the registered property of a person who has acquired the registered property under the effect of such stipulation.
- 2. A stipulation as meant in the previous paragraph shall only be effective if the agreement between parties, in which it is written down, is drawn up by notarial deed, followed by the registration of this deed in the public registers for registered property. The creditor towards whom the obligation exists, must elect his domicile in the Netherlands for the purpose of this registration.
- 3. Even after the stipulation has been registered in the public registers, it shall have no effect:
a. against persons who already, before its registration, had acquired under particular title a right in the registered property or a right of use of that property;
b. against a person who has seized the registered property or a limited property right with which it has been encumbered, if the stipulated obligation was not yet registered at the moment on which the warrant of seizure was registered in the public registers;
c. against persons who have acquired their right from someone who, pursuant to the provisions under point (a) or (b), was not bound by the stipulated obligation.
- 4. Where, in exchange of the stipulated obligation, a counter performance has been agreed upon, the right to claim this counter performance passes as well, together with the stipulated obligation, to the party who has acquired the registered property, as far as this right is related to the period after the passage of the stipulated obligation and provided that the stipulation under which the counter performance is due is registered too in the public registers.
- 5. This Article does not apply to (cannot be used for) obligations that limit a proprietor in his powers to alienate or encumber the registered property.

Article 6:253 Third-party clause (‘jus quaesitum tertio’)
- 1. An agreement creates the right for a third party to claim a performance from one of the parties or to appeal otherwise against one of them to the observance of their agreement if the agreement contains a stipulation to that effect (third-party clause) and the third party has accepted this stipulation.
- 2. A stipulation meant in the previous paragraph (third-party clause) may be revoked by the person who has stipulated it up until the moment on which it has been accepted by the third party.
- 3. An acceptance or rejection of the stipulation (third-party clause) is made by a declaration of the third party to one of the parties to the agreement.
- 4. If the stipulation (third-party clause) has been made irrevocable and it has been stipulated, towards the third party, gratuitously, it will be regarded to have been accepted if the third party did not reject it immediately after he obtained knowledge of its existence.

Article 6:254 Legal position of the third party after he has accepted the third-party clause
- 1. After the third party has accepted a stipulation as referred to in the previous Article (third-party clause), he will be a full party to the agreement.
- 2. The third party may as well, to the extent that this is in conformity with the underlying purpose of the stipulation (third-party clause), derive rights from it over the period prior to the moment on which he had accepted that stipulation (third-party clause).

Article 6:255 Appointing another third party
- 1. Where a stipulation on behalf of a third party (third-party clause) has no effect for this third party, the party who has stipulated it may appoint either himself or another third person as the one who can draw rights from it.
- 2. The party who has made the stipulation (third-party clause) is regarded to have appointed himself as the one who can draw rights from it, when his counterparty to that stipulation (third-party clause), on whom this stipulation (third-party clause) imposes an obligation, has set him a reasonable period and he has not appointed someone else within that period.

Article 6:256 Right of action of the party who has stipulated the third-party clause
The party who has made the stipulation (third-party clause) on behalf of a third party, may demand from his counterparty to that stipulation (third-party clause), on whom this stipulation (third-party clause) imposes an obligation, that he performs the obligation to the third party, unless the third party opposes to this.

Article 6:257 Subordinate can make use of the means of defence of his employer
If a party to an agreement, in order to ward off his liability for damages caused by one of his subordinates, may raise a defence against his counterparty that directly or indirectly results from their agreement, then his subordinate, if he is held liable for these damages by the counterparty, may as well raise that defence as if he himself was a party to that agreement.

Article 6:258 Unforeseen circumstances
- 1. Upon a right of action (legal claim) of one of the parties to an agreement, the court may change the legal effects of that agreement or it may dissolve this agreement in full or in part if there are unforeseen circumstances of such a nature that the opposite party, according to standards of reasonableness and fairness, may not expect an unchanged continuation of the agreement. The court may change or dissolve the agreement with retroactive effect.
- 2. The court shall not change or dissolve the agreement as far as the unforeseen circumstances, in view of the nature of the agreement or of common opinion, should remain for account of the party who appeals to these circumstances.
- 3. For the purpose of this Article, a person to whom a right or obligation from the agreement has passed, is equated with an original party to that agreement.

Article 6:259 Continuing obligations
- 1. Where an agreement necessarily implies to oblige the proprietor or user of a registered property to fulfil a performance, other than to tolerate that another person continuingly holds this registered property under his control on the basis of a right granted to him, the court may, upon a right of action (legal claim) of the proprietor or user, change the legal effects of that agreement or dissolve this agreement in full or in part:
a. if at least ten years after the conclusion of the agreement have passed and an unchanged continuation of the agreement is in conflict with public interests;
b. if the creditor has no longer a reasonable interest in the performance of the obligation and it is not likely that this interest will return.
- 2. In determining the period of ten years meant in paragraph 1, under point (a), this period is added with the entire period during which previous proprietors or users of the registered property were bound as well by a stipulation imposing an obligation to the same effect. The period does not apply as far as the conflict with public interest consists of the fact that the contractual provision forms an obstacle to realize a valid land use plan.

Article 6:260 Further rules for the application of Articles 6:258 and 6:259
- 1. When the court has changed or dissolved an agreement on the basis of Article 6:258 or 6:259, it may set additional conditions in its judgment.
- 2. If the court changes or partially dissolves the agreement on the basis of Article 6:258 or 6:259, it may order that one or more parties may rescind the agreement entirely by means of a written notification within a period to be set in its judgment. In that event the change or partial dissolvement (dissolution) of the agreement shall not take effect before this period has expired.
- 3. When an agreement has been changed or entirely or partially dissolved on the basis of Article 6:258 or 6:259, then also the judgment which ordered this change or dissolvement may be registered in the public registers, provided that it has become final and binding or that it immediately enforceable.
- 4. When a person is summoned to appear in court in relation to a right of action (legal claim) based on Article 6:258 or 6:259 and the accompanying writ of summons is served on him at his elected domicile in the Netherlands as meant in Article 6:252, paragraph 2, then also his legal successors, who have not registered themselves in the public registers as new creditor, will have been summoned by means of this writ. Article 3:29, paragraph 2 and 3, second, third and fourth sentence, of the Civil Code apply accordingly.
- 5. Other legal facts that change or end a registered agreement may be registered as well in the public registers, as far as they are based on a court judgment that has become final and binding or that is immediately enforceable.

Section 6.5.5 Mutual agreements

Article 6:261 Definition of a ‘mutual (reciprocal) agreement’
- 1. An agreement is mutual (reciprocal) if each of the parties has engaged himself under the agreement to an obligation in order to obtain the performance to which the opposite party has engaged himself towards him.
- 2. The statutory provisions for mutual agreements apply accordingly to other legal relationships which necessarily implicate the mutual (reciprocal) fulfilment of performances, as far as the nature of such a legal relationship does not oppose to this.

Article 6:262 Mutual right to withhold performance until the other party performs his due and demandable obligation (‘exception non adimpleti contractus’)
- 1. If one of the parties to a mutual agreement does not perform his obligation, although it is due and demandable, then the opposite party is entitled to withhold the performance of his own obligation, that stands opposite to the non-performed obligation of the other party.
- 2. In the event of a partial or improper performance, the opposite party is only entitled to withhold performance as far as this is justified by the other party's failure in the performance of his obligation.

Article 6:263 Right to withhold performance on the basis of a threatening non-performance of the other party
- 1. The party who has to perform his obligation first, is nevertheless entitled to withhold his own performance if he has taken knowledge, after the parties had entered into the mutual agreement, of circumstances which give him good reason to fear that the other party will not perform his obligation, standing opposite to his own.
- 2. In the event that there is a good reason to fear that the other party will perform his obligation only partially or improperly, the opposite party is only entitled to withhold his performance as far as this is justified by the other party's failure in the performance of his obligation.

Article 6:264 Limited applicability of the general rules for withholding performance
Articles 6:54 under point (b) and (c), and 6: 55 of the Civil Code do not apply in the event that a party is entitled to withhold performance on the basis of Article 6:262 or 6:263.

Article 6:265 Rescission of a mutual agreement for a breach of contract
- 1. Every failure of a party in the performance of one of his obligations, gives the opposite party the right to rescind the mutual agreement in full or in part, unless the failure, given its specific nature or minor importance, does not justify this rescission and its legal effects.
- 2. As far as performance is not permanently or temporarily impossible, the right to rescind the mutual agreement only arises when the debtor is in default.

Article 6:266 No right of rescission for a creditor who himself is in creditor’s default
- 1. A right of rescission cannot be based on a failure of the debtor in the performance of his obligation with regard to which the creditor himself is in default as meant in Section 6.1.8.
- 2. If, however, proper performance of the obligation of the debtor becomes entirely or partially impossible during the period that the creditor is in default, then the mutual agreement may be rescinded by the creditor if the debtor, due to his fault or a fault of his subordinate, has failed to take care for the performance in a way as could have been expected of him in the circumstances.

Article 6:267 Ways to rescind a mutual agreement
- 1. The rescission of a mutual agreement is effectuated by means of a written notification of the party who is entitled to rescind the agreement, addressed to the opposite party to that agreement. If the mutual agreement has been concluded solely by electronic means, it may be rescinded as well by means of a notification addressed to the other party by electronic means. Article 6:227a, paragraph 1, applies accordingly.
- 2. A mutual agreement may be rescinded as well by a judgment of the court upon a right of action (legal claim) of the party who is entitled to rescind the agreement.

Article 6:268 Prescription of the right of rescission
The right to rescind a mutual agreement by means of an extrajudicial notification ceases to exist when the right of action to claim the rescission of the mutual agreement has become prescribed. This prescription does not prevent a judicial or extrajudicial rescission of the mutual agreement as a defence against a right of action or another legal measure that is based on that mutual agreement.

Article 6:269 Rescission has no retroactive effect
The rescission of a mutual agreement as meant in this Section has no retroactive effect, except that an offer of the debtor to perform his obligation, made at a moment that the creditor already had brought a right of action (legal claim) to court in order to rescind the mutual agreement, shall have no effect when the court afterwards decides to rescind that agreement.

Article 6:270 Partial rescission
A partial rescission of a mutual agreement implies a proportional reduction of the mutual performances, in quantity or quality, that parties have to perform according to that agreement.

Article 6:271 Legal effects of a rescission
A rescission releases parties of the obligations affected by it [all obligations created by the rescinded mutual agreement]. As far as these obligations have been performed already, the legal basis for performance remains effective, but the law imposes an obligation on parties to undo the performances they already have received by virtue of the rescinded agreement.

Article 6:272 Obligation to compensate the value of an already received performance
- 1. Where the nature of the received performance makes it impossible to return it, it is replaced by a compensation of its value, calculated at the moment on which it was received.
- 2. Where the received performance was not in conformity with the obligation, the compensation meant in paragraph 1 is limited to the value of the benefit that the recipient, in the circumstances, really has gained from the performance, calculated at the moment on which he received it.

Article 6:273 Caring duty of the recipient
From the moment that a party reasonably has to take into account the possibility that the mutual agreement will be rescinded, he has to ensure, like a prudent debtor would, that he is able to return the performance which he has to give back after the rescission of the agreement. Article 6:78 of the Civil Code applies accordingly.

Article 6:274 Taking delivery of a performance in bad faith
If a party, in spite of a nearing rescission, has taken delivery of a performance in bad faith, then he will be deemed, after the agreement has been rescinded, to have been in default from the moment that he received this performance.

Article 6:275 Fruits, costs and damages
What is provided in Articles 3:120, 3:121, 3:123 and 3:124 of the Civil Code with regard to the entitlement to fruits and with regard to a compensation for costs and damages applies accordingly to a performance in control of a recipient that has to be returned on account of a rescission of a mutual agreement.

Article 276 Recipient without legal capacity
Where a person without legal capacity has received a performance that has to be returned on account of a rescission of a mutual agreement, the statutory provisions of this Section shall apply only as far as the performance has really been beneficial to the recipient or has come under control of his legal representative.

Article 6:277 Compensation for damages besides a rescission
- 1. Where a mutual agreement has been rescinded in full or in part, the party whose failure to perform has caused the ground of rescission must compensate the damage which the opposite party suffers as a result of the fact that both parties have not complied with the agreement.
- 2. If the failure to perform is not attributable to the debtor, then the previous paragraph shall only apply within the limits of in Article 6:78.

Article 6:278 Additional payment to restore the original value proportion
- 1. The party who has decided to rescind an already performed agreement after the value proportion of the performances that each of the parties mutually have to undo has changed to his advantage, must restore the original value proportion by means of an additional payment, if it is plausible that he would not have rescind the agreement without this change in value.
- 2. The previous paragraph applies accordingly to the situation that a party, to whose advantage the value proportion has changed, uses other legal actions or remedies than a rescission to achieve that already received performances must be made undone, if it is plausible that he would not have chosen this action or remedy without the change in value of the performances that are to be made undone.

Article 6:279 More-sided agreements
- 1. The statutory provisions for mutual agreements apply accordingly to agreements immediately creating obligations between more than two parties, with due observance of the following paragraphs and to the extent that the nature of the agreement does not oppose against such applicability.
- 2. The party who has engaged himself under a more-sided agreement to an obligation in order to obtain a performance from one or more other parties to that agreement, may base his right of rescission upon a failure in the performance of an obligation that is due to him.
- 3. Where a party with interconnected rights and obligations as meant in the present Article fails to perform an obligation himself, the other parties may in anyxx event jointly rescind the more-sided agreement.