How is hardship different from force majeure?

Force majeure makes performance impossible and usually excuses or suspends it; hardship makes it merely far more onerous and triggers renegotiation.

Can a Dutch court adapt a contract for hardship without a clause?

Yes, under unforeseen circumstances (BW 6:258), but the bar is high; a contractual hardship clause gives more predictable relief.

Does performance continue during hardship renegotiations?

It should, and a well-drafted hardship clause says so explicitly. Suspension of performance during renegotiation would amount to self-help that Dutch law does not automatically permit.

What counts as an objective hardship trigger?

A measurable, verifiable threshold such as a cost increase above 15% or an index movement beyond a stated band. Vague formulations like "significant change in circumstances" invite disputes about whether the trigger is met.

Can hardship justify permanently ending the contract?

Only if renegotiation fails and the clause provides for termination as a fallback, or if a court invokes BW 6:258. Hardship alone, without a clear exit mechanism, does not entitle a party to walk away.

Hardship Clause

Allows the contract to be renegotiated when unforeseen events make performance excessively onerous.

What it is

A hardship clause addresses events that do not prevent performance (so force majeure does not apply) but radically change the economic balance, for example a steep cost surge. It obliges the parties to renegotiate the affected terms in good faith.

Why it matters

Long contracts are exposed to shocks: energy spikes, currency swings, regulatory change. Without a hardship clause, the burdened party may have no relief short of the high threshold of unforeseen circumstances under BW 6:258.

How to apply it

Define the trigger objectively, e.g. a cost change above a stated percentage.
Impose a duty to renegotiate in good faith within a set timeframe.
State what happens if renegotiation fails: referral to an expert, adaptation by a court, or termination.
Confirm performance continues during the renegotiation period.

Sample wording

If an event beyond a party's control increases its cost of performance by more than fifteen percent (15%), the parties shall renegotiate the affected terms in good faith to restore the original economic balance.

Negotiation tips

• Keep the trigger objective and measurable to avoid disputes over whether it applies.
• Decide in advance who decides if renegotiation deadlocks, to avoid stalemate.

Common pitfalls

• A bare "agree to renegotiate" with no fallback, which courts may treat as non-binding.
• Confusing hardship with force majeure, leaving cost shocks uncovered.

Legal references

Unless marked otherwise, references are to Dutch law (Burgerlijk Wetboek, the Dutch Civil Code); EU instruments such as the GDPR apply across the EU. This is general information, not legal advice. Other jurisdictions treat these concepts differently. Verify the current text and your situation with a qualified lawyer.

Frequently asked questions

Common questions about this clause.