What is a notice of default (ingebrekestelling) under Dutch law?

Dutch term: Ingebrekestelling | Legal basis: Articles 6:81 to 6:83 of the Dutch Civil Code

A notice of default (ingebrekestelling) is a written notice from a creditor to a debtor stating that the debtor has failed to perform a contractual obligation, specifying the performance required, and granting a reasonable period within which performance must be made. Under articles 6:81 to 6:83 of the Dutch Civil Code, putting the debtor in default (verzuim) through an ingebrekestelling is generally required before the creditor can claim damages or rescind the contract.

The notice must clearly identify the contract, specify which obligation has not been performed, demand performance within a defined reasonable period, and warn that the debtor will be in default if performance does not follow. The period must be reasonable given the nature of the obligation and the circumstances. Sending the notice by registered mail or bailiff is advisable for evidentiary purposes.

There are exceptions where no ingebrekestelling is needed: when the obligation has a fixed performance deadline (fatale termijn) that has passed, when performance has become permanently impossible, or when the debtor has clearly indicated it will not perform. But for most commercial obligations without a fixed deadline, the written notice of default is the standard route.

Why it matters for international businesses

Missing the ingebrekestelling is the single most common procedural mistake foreign businesses make in Dutch contract disputes. A damages claim or rescission that would otherwise succeed can fail entirely because the creditor did not send a proper notice of default before acting. Getting advice on the drafting of the notice at the earliest stage of a dispute is almost always cheaper than fixing a defective notice later. See our page on breach of contract litigation or contact us directly.