Can I suspend performance before the other party is officially in default?

Under BW 6:52, the right of suspension can arise as soon as there is a sufficiently serious failure or a well-founded fear that the other party will not perform. You do not always need to wait for formal default, but proportionality still applies.

What is the difference between suspension and termination?

Suspension is temporary: your obligation is paused, but the contract continues and revives when the failure is cured. Termination (ontbinding or opzegging) ends the contractual relationship. Suspension is often a precursor to termination if the other party does not cure.

What does proportionality mean in the context of suspension?

You cannot suspend a large and critical obligation in response to a minor or unrelated failure. The value and nature of what you suspend must be roughly commensurate with the failure you are responding to. Courts look at the balance between the obligations.

Can a supplier suspend services for late payment?

Yes, if payment and service delivery are connected obligations. However, the contract may restrict this right or require a notice period before suspension is allowed. Always check the contract terms before acting.

Does the right of suspension expire if not used promptly?

The right does not formally expire, but a long delay in invoking it can weaken your position or be used as evidence of waiver. Acting promptly once the failure is clear is both legally and commercially sensible.

Right of suspension

The right to withhold one's own performance until the other party performs its obligation.

Definição

A right of suspension lets a party temporarily withhold performance when the counterparty fails to perform a connected obligation, pending correction. Dutch law provides a general right of suspension (article 6:52 BW) and, for reciprocal contracts, the exceptio non adimpleti contractus (article 6:262 BW), which must be exercised proportionally. Suspension is a pressure tool, not a termination: the obligation revives once the other party performs.

Exemplo

Faced with an unpaid invoice, the supplier suspends further deliveries until payment is received.

Porque é um risco para a empresa

Exercising a right of suspension disproportionately or against the wrong obligation can itself constitute a breach of contract, turning the suspending party into the defaulting one. Businesses that invoke suspension without a clear paper trail documenting the underlying failure and proportionality analysis risk significant legal exposure. Equally, failing to invoke suspension when entitled to do so may weaken your position in subsequent dissolution or damages proceedings.

Como gerir

Document the underlying failure precisely (what obligation, when due, what was received) before invoking suspension.
Check proportionality: the value of what you suspend must not be disproportionate to the obligation in default.
Give the other party written notice of the suspension and the conditions for lifting it.
Take legal advice before suspending in a critical relationship, as the consequences of wrongful suspension can be severe.

Referências jurídicas

Salvo indicação em contrário, as referências remetem para o direito neerlandês (Burgerlijk Wetboek, o Código Civil neerlandês); os instrumentos da UE, como o RGPD, aplicam-se em toda a UE. Esta é informação geral, não constitui aconselhamento jurídico. Outras jurisdições tratam estes conceitos de forma diferente. Verifique o texto em vigor e a sua situação com um advogado qualificado.

Perguntas frequentes

Questões comuns sobre este termo.