# Representation

Source: https://contracko.com/glossary/representation

# Representation

A statement of fact made to induce a party to enter into a contract.

## Definition

A representation is an assertion of fact made before or at the time of contracting that induces the other party to enter the agreement. If it turns out to be false, remedies may include annulment or damages, depending on whether it was innocent, negligent, or fraudulent. Dutch law has no separate concept of a "representation"; a false pre-contractual statement is usually addressed through error (dwaling) under article 6:228 or fraud, and parties often convert key statements into express warranties.

## Example

> A seller represents that a company has no pending litigation; if that is false and material, the buyer may annul the share purchase for error.

## Why this is a business risk

Representations made during due diligence or negotiations can have binding legal effect even if they are not converted into warranties. A company that makes overoptimistic statements about its technology, finances, or IP ownership, and relies on an entire-agreement clause for protection, may find Dutch courts willing to look past it where the statement was material and induced the deal.

## How to manage it

- Convert important pre-contractual statements into express warranties so their content and remedy are clearly defined.
- Train your team to avoid off-the-cuff statements about product capabilities or company status in negotiations: these can become representations.
- Keep records of what was said during due diligence and negotiation: if a representation claim arises, documentation of what was actually communicated is essential.

### How Contracko helps

Contracko's version history and document timeline create a dated record of contract drafts and agreed terms, which is relevant context when a party later claims a pre-contractual representation was made but not reflected in the signed document.

## Legal references

- [BW 6:228 Dutch Civil Code: annulment for error Dutch law](https://wetten.overheid.nl/BWBR0005289)

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.

## Relevant for

[Legal Services](https://contracko.com/industries/legal-services)[Financial Services](https://contracko.com/industries/financial-services)[Commercial Real Estate](https://contracko.com/industries/commercial-real-estate)

## Related clauses

- [Warranties Clause](https://contracko.com/clause-library/warranties)
- [Entire Agreement Clause](https://contracko.com/clause-library/entire-agreement)
- [Severability Clause](https://contracko.com/clause-library/severability)

## Related terms

- [Warranty](https://contracko.com/glossary/warranty)
- [Rescission](https://contracko.com/glossary/rescission)
- [Good faith](https://contracko.com/glossary/good-faith)
- [Clause](https://contracko.com/glossary/clause)

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## Frequently asked questions

Common questions about this term.

- **Q:** How is a false representation handled under Dutch law?
  **A:** There is no standalone misrepresentation action; instead it is dealt with as error (dwaling) or fraud, which can lead to annulment of the contract and sometimes damages.

- **Q:** Can an email during negotiations count as a representation?
  **A:** Yes. Informal statements made during negotiations can be representations if they are statements of fact that induce a party to contract. An entire-agreement clause reduces but does not always eliminate this risk.

- **Q:** What makes an error (dwaling) actionable under Dutch law?
  **A:** Under BW 6:228, an error must be induced by a false statement of the other party, by a duty to speak that was not met, or by a shared mistaken assumption. The error must be material: the party would not have contracted on the same terms had it known the truth.

- **Q:** Does Dutch law recognise negligent misrepresentation as a claim?
  **A:** Not as a separate category. A negligent false statement may give rise to a claim for error (dwaling) or as a tort (onrechtmatige daad) if the speaker had a duty of care. Dutch law focuses on the effect of the statement rather than the state of mind behind it.

- **Q:** What is the difference between a representation and a condition?
  **A:** A representation is a statement of present or past fact; a condition is a future event on which the contract or an obligation depends. They have different legal consequences: a false representation may give annulment; a failed condition may suspend or discharge an obligation.

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