What is proportionality in Dutch contract law?

Dutch term: Proportionaliteit | Legal basis: Article 6:265 BW (case law)

Proportionality is a key principle in Dutch contract law that governs whether rescission (ontbinding) is available as a remedy for breach. Under article 6:265 of the Dutch Civil Code, any failure to perform justifies rescission unless the failure, given its special nature or limited significance, does not justify rescission and its consequences.

Dutch courts weigh the seriousness of the breach against the consequences of rescission for the debtor. A minor delivery defect in a large supply contract may not justify full rescission. The proportionality test also applies to the exercise of suspension rights (article 6:262 BW) and to the reasonableness of penalty clauses (article 6:94 BW).

Why it matters for international businesses

For international businesses, proportionality is a recurring defence in Dutch contract disputes. A party seeking rescission must be prepared to demonstrate that the breach is serious enough to warrant it.