How does a condition subsequent differ from a condition precedent?

A condition precedent postpones an obligation until the event happens, while a condition subsequent makes the obligation effective immediately but ends it if the event happens.

Does triggering a condition subsequent work retroactively?

No. Under article 6:24 BW the effect is in principle not retroactive, so performance already rendered must be undone rather than treated as never owed.

Can the parties agree to give a condition subsequent retroactive effect?

Yes. Article 6:24 BW sets a default rule, not a mandatory one; the parties may contractually agree that performance already made is treated as if the contract never existed.

Is a longstop date the same as the condition itself?

No. A longstop date is a separate mechanism: if the condition has not triggered by the longstop, the parties decide whether to dissolve or to treat the contract as unconditional. The condition itself is the uncertain event; the longstop date provides certainty if that event never occurs.

Can a party frustrate a condition subsequent in bad faith?

Dutch law (BW 6:23) provides that if a party in bad faith prevents or causes a condition to occur, the other party may treat the condition as not having triggered or as having triggered, respectively. Good faith is therefore an important limit on how parties deal with conditions.

Conditions subsequent

A future uncertain event whose occurrence ends an obligation that was already in effect.

Définition

A condition subsequent (ontbindende voorwaarde) takes effect immediately but lapses automatically if a defined uncertain future event occurs. It is the mirror image of a condition precedent: the obligation exists from the start and ends on the trigger, rather than only beginning once the trigger is met. Under Dutch law the effect is in principle non-retroactive, so performance already rendered must be undone rather than treated as never owed.

Exemple

A purchase agreement is concluded subject to a condition subsequent: it dissolves automatically if the buyer's mortgage is refused.

Pourquoi c'est un risque pour l'entreprise

Conditions subsequent create real-time exposure: the contract is live and obligations run, but the whole arrangement can fall away at a future moment. If the unwind obligation (returning money or property when the condition triggers) is not clearly set out, the parties may disagree on what must be reversed and by when. Businesses that do not actively track whether the condition has triggered risk continuing to perform after the contract has legally dissolved.

Comment le gérer

Define the triggering event precisely: ambiguity about whether the condition has occurred is a primary source of disputes.
Set a longstop date after which the condition can no longer trigger, so the contract eventually becomes unconditional.
Describe the unwind obligations clearly: who returns what, within what timeframe, and what interest or cost is owed.
Monitor whether the triggering event has occurred and notify the other party promptly to avoid disputes about timing.

Références juridiques

Sauf mention contraire, les références renvoient au droit néerlandais (Burgerlijk Wetboek, le Code civil néerlandais) ; les instruments de l'UE tels que le RGPD s'appliquent dans toute l'UE. Il s'agit d'informations générales, pas de conseils juridiques. D'autres juridictions traitent ces concepts différemment. Vérifiez le texte en vigueur et votre situation avec un avocat qualifié.

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