What is a hardship clause under Dutch law?

Dutch term: Hardship / onvoorziene omstandigheden | Legal basis: Article 6:258 BW

A hardship clause addresses situations where performance of a contract is still technically possible but the economics have shifted so dramatically that holding one party to the original terms would be unreasonable. Under Dutch law, the statutory basis is article 6:258 of the Dutch Civil Code (onvoorziene omstandigheden / unforeseen circumstances), which allows a court to modify or dissolve a contract if circumstances have changed to such an extent that the other party cannot reasonably expect unchanged performance.

The statutory threshold is high: the changed circumstances must be of such a nature that maintaining the contract as agreed would be unacceptable. Most Dutch courts apply article 6:258 restrictively, and successful claims are rare. For this reason, international commercial contracts typically include a contractual hardship clause that sets a lower threshold and provides a renegotiation mechanism before either party can invoke court modification.

Why it matters for international businesses

For long-term supply and distribution contracts, a hardship clause alongside the force majeure clause provides a more complete risk allocation framework for economic disruptions that do not prevent performance but make it commercially unreasonable.