What is suspension of performance (opschortingsrecht) under Dutch law?

Dutch term: Opschortingsrecht / exceptio non adimpleti contractus | Legal basis: Article 6:262 of the Dutch Civil Code

Suspension of performance (opschortingsrecht) under article 6:262 of the Dutch Civil Code allows a party to suspend its own contractual obligations when the counterparty fails to perform corresponding obligations. Also known as the exceptio non adimpleti contractus, it is one of the fastest and cheapest interim remedies available in Dutch commercial practice.

The right of suspension operates without court intervention: the party simply withholds its own performance (delivery, payment, services) and notifies the counterparty that it is doing so because of the counterparty's breach. No prior notice of default (ingebrekestelling) is required for the suspension itself, although one is needed before damages or rescission can follow.

The suspension must be proportional to the breach. A party cannot refuse to pay the full purchase price because of a minor quality issue with one delivery. The proportionality assessment looks at the relative significance of the obligations on both sides and the consequences of the suspension for the counterparty. Suspension exercised in bad faith or disproportionately can itself constitute a breach.

Why it matters for international businesses

Suspension of performance is often the first practical step in a contractual dispute: it creates immediate leverage without the cost and delay of court proceedings. Understanding when and how to exercise it correctly is essential. See our breach of contract litigation page or contact us for advice.