Can a contract exclude all liability?

No. Under Dutch law an exclusion or cap that would cover the party's own intent or gross negligence is generally void as contrary to reasonableness and fairness.

What is consequential loss and why is it often excluded?

Consequential loss is indirect harm flowing from a breach, such as lost profits or reputational damage. It is often excluded because it can far exceed the contract value, making it difficult to price and insure.

Is liability for data breaches usually capped?

Suppliers often seek to cap it; customers and regulators push back because GDPR fines and notification costs can be very large. The carve-out for data protection obligations is a key negotiation point in technology contracts.

Can a liability clause protect a party from tort claims as well?

It depends on drafting and jurisdiction. Under Dutch law, contractual caps can in principle also apply to concurrent tort claims between the same parties, but courts scrutinise this carefully.

How is gross negligence treated in Dutch liability clauses?

Excluding or capping liability for a party's own gross negligence is generally void under Dutch law as contrary to reasonableness and fairness, so clauses should carve it out explicitly.

Liability

Legal responsibility to compensate another party for loss caused by an act or omission.

Definição

Liability is the obligation to make good the loss another party suffers as a result of breach, negligence, or another wrongful act. In contracts it is often capped or excluded for certain categories such as indirect or consequential loss, although caps on intent or gross negligence are usually unenforceable. Under Dutch law contractual liability flows from article 6:74 and non-contractual (tort) liability from 6:162.

Exemplo

A contract limits the supplier's total liability to the fees paid in the prior year, but carves out fraud and personal injury.

Porque é um risco para a empresa

Unmanaged liability exposure is one of the most common causes of business-ending disputes. An uncapped indemnity or an overlooked carve-out can leave a company responsible for losses far exceeding contract value. Equally, an over-broad exclusion may be unenforceable, leaving you without the protection you assumed you had.

Como gerir

Set a liability cap in every commercial contract: a figure tied to contract value or annual fees is common and gives both sides predictability.
List the categories excluded from the cap (fraud, wilful misconduct, death, personal injury) to ensure those carve-outs are intentional, not accidental.
Match your liability exposure to your insurance cover; if a cap exceeds your policy limit, your insurer will not fill the gap.
Review limitation clauses in supplier contracts as carefully as your own: a supplier's narrow cap may leave you uncompensated for your actual loss.

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.