Is a complete exclusion of consequential damages enforceable in the Netherlands?

Between businesses it is generally valid, but a court can set it aside under article 6:248 BW if relying on it would be unacceptable by standards of reasonableness and fairness, especially where the damage stems from intent or gross negligence.

What is typically listed as a consequential loss in standard contracts?

Common examples are lost profit, loss of revenue, loss of business, loss of goodwill, data loss, business interruption and third-party claims. The exact list varies by contract and industry.

Can I carve out specific categories of indirect loss from a consequential-damage exclusion?

Yes. Negotiating a carve-out that keeps, for example, data-recovery costs or regulatory fines within the recoverable categories is a common approach when a blanket exclusion is otherwise acceptable.

Does an exclusion of consequential damages also exclude claims under an indemnity?

Not unless the indemnity is expressly subject to the exclusion. Indemnities are often drafted to survive consequential-damage exclusions; the key is to read both provisions together.

How does a force majeure event interact with consequential-damage exclusions?

Force majeure excuses performance but does not by itself limit damages if performance is not actually impossible. An exclusion of consequential loss and a force majeure clause serve different purposes and both may apply simultaneously in an extended outage situation.

Consequential damages

Indirect loss flowing on from a breach, such as lost profit, lost production or reputational harm.

Definizione

Consequential or indirect damages are losses that do not arise immediately from the breach itself but as a knock-on effect, such as lost profit, business interruption or third-party claims. These are the most common target of exclusion in liability clauses. Dutch law has no fixed statutory definition; what qualifies as "consequential" depends on the contractual definition and on the attribution test of articles 6:95 to 6:98 BW.

Esempio

A supplier excludes consequential damages, so a buyer cannot recover the profit it lost while a defective component halted its factory line.

Perché rappresenta un rischio aziendale

Consequential damages are often the biggest financial exposure in a failure scenario, yet they are routinely excluded in supplier terms. If your business depends on a single supplier and that supplier fails, the resulting lost revenue and customer penalties may be entirely unrecoverable under the contract. Accepting a blanket exclusion of indirect loss without understanding what it covers means the largest risks are uninsured and unenforceable.

Come gestirlo

Identify your highest-value indirect exposures before signing and negotiate targeted carve-outs from the consequential-damage exclusion for those specific categories.
Ensure your own business interruption insurance covers losses that the contract does not allow you to recover from the supplier.
Use contractual milestones and service levels so that a failure is detected and escalated before downstream losses accumulate.
When you are the party granting the exclusion, define "consequential" precisely so you are not arguing about scope in a dispute.

Riferimenti normativi

Salvo diversa indicazione, i riferimenti riguardano il diritto olandese (Burgerlijk Wetboek, il Codice Civile olandese); gli strumenti UE come il GDPR si applicano in tutta l'UE. Si tratta di informazioni generali, non di consulenza legale. Altre giurisdizioni trattano questi concetti in modo diverso. Verifichi il testo vigente e la propria situazione con un avvocato qualificato.

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