What is force majeure (overmacht) under Dutch law?

Dutch term: Overmacht | Legal basis: Article 6:75 of the Dutch Civil Code

Force majeure (overmacht) under article 6:75 of the Dutch Civil Code is a defence that excuses a debtor from liability for damages when the failure to perform cannot be attributed to the debtor. The debtor must show that the failure is not due to its fault, and is not attributable to it by law, legal act or generally accepted standards.

The statutory concept of force majeure is narrow. Dutch courts apply it restrictively, and many events that commercial parties might consider "force majeure" (supply chain disruptions, price increases, staffing shortages) do not automatically qualify. The debtor must demonstrate that the impediment was truly beyond its control and could not reasonably have been foreseen or prevented.

Force majeure relieves the debtor from liability for damages, but it does not by itself terminate the contract. The creditor retains the right to rescind the contract if the non-performance is sufficiently serious, and may be able to suspend its own performance in the meantime.

For this reason, most international commercial contracts supplement the statutory rule with a contractual force majeure clause that defines the triggering events, the notice procedure, the allocation of risk during the disruption, and the termination consequences if the event continues beyond a defined period.

Why it matters for international businesses

Since 2020, force majeure clauses in international contracts have become significantly more important. Generic clauses drafted before the pandemic, sanctions expansions and supply chain disruptions often do not cover the events they were assumed to cover. See our international contracting page for drafting guidance, or contact us for advice.