Article 6:74 of the Dutch Civil Code explained: damages for breach of contract

Dutch term: Artikel 6:74 BW | Legal basis: Article 6:74 of the Dutch Civil Code

Article 6:74 of the Dutch Civil Code is the central provision on contractual liability. It states: every failure to perform a contractual obligation (tekortkoming in de nakoming) obliges the debtor to compensate the damage the creditor suffers, unless the failure is not attributable to the debtor. This single article establishes four requirements for contractual damages: (1) a contractual obligation exists; (2) the debtor has failed to perform; (3) the failure is attributable to the debtor (by fault or by a cause for which the law holds the debtor responsible); (4) the creditor has suffered damage as a result.

Attribution (toerekenbaarheid) under article 6:75 BW is the key qualifier. A failure is attributable to the debtor unless the debtor proves force majeure (overmacht): the failure is not due to the debtor's fault and is not attributable by law, legal act or generally accepted standards. In practice, the debtor bears a heavy burden to prove force majeure. Most commercial failures to perform are attributed to the debtor. The separate requirement of verzuim (default, articles 6:81-6:83 BW) must also be satisfied before damages can be claimed, typically through a notice of default (ingebrekestelling).

Why it matters for international businesses

Article 6:74 is cited in virtually every Dutch contract dispute. For international businesses, understanding how the article works in practice, including the ingebrekestelling requirement that is so often missed, is the foundation of Dutch contractual liability.