Article 6:265 of the Dutch Civil Code explained: rescission for breach

Dutch term: Artikel 6:265 BW | Legal basis: Article 6:265 of the Dutch Civil Code

Article 6:265 of the Dutch Civil Code provides: every failure to perform an obligation gives the other party the right to rescind (ontbinden) the contract in whole or in part, unless the failure, given its special nature or limited significance, does not justify rescission and its consequences. This article is the statutory basis for ending a contract because of the other party's breach.

The article establishes a presumption in favour of rescission: any failure justifies rescission unless the failure is too minor. Dutch courts apply a proportionality test: the seriousness of the breach is weighed against the consequences of rescission for the debtor. A minor delivery defect in a large supply contract may not justify full rescission. Rescission generally requires verzuim (default), which usually means a notice of default (ingebrekestelling) must have been sent first. Rescission can be declared by extrajudicial notice (no court judgment needed), but the debtor can challenge it in court.

Why it matters for international businesses

For international businesses, article 6:265 is the exit mechanism when a contract has been breached. Choosing between rescission and other remedies (damages, specific performance, suspension) requires careful analysis of the proportionality test and the practical consequences.