Under Dutch law, one party has the right to claim specific performance of an obligation (contractual or non-contractual) against another party as long as performance is possible. Unlike other jurisdictions, in the Netherlands specific performance is the primary remedy for breach of contract and the creditor is not obliged to be satisfied with damages.
The party to whom the specific performance is ordered against (debtor) must comply with the court order. The enforceable right of the creditor to demand specific performance is called an ‘obligatory claim’. The law of obligations indicates what the creditor can expect, and what actions can be taken when specific performance does not take place. The debt that the debtor owes to the creditor stands until the performance is carried out.
Under Dutch civil law there are three main types of performance:
There are however cases where specific performance can be refused by the court. These restrictions under Dutch civil lawinclude:
While specific performance is the primary remedy under Dutch law, there are other remedies available in the forms of: damages, recission, annulment, a declaratory judgment, and an injunction.
Compensatory damages under Dutch law can include all material loss, and possibly other harm (such as emotional damage). Damage is usually paid in monetary form. The general rule followed by the courts when awarding damages is that the aggravated party is places in the situation it would have been in if the event that caused the damage did not take place.
Recission of the contract occurs when the contract is cancelled and both parties are released from further performance. When performance has already taken place, there is an obligation on the parties to undo the performance already carried out. If the performance cannot be undone, the total cost of the performance can be compensated for. This hold true to the extent that the breach is so small that it does not justify the recission.
A contract (or other legal act) may in certain situations be annulled by a court. This can occur in the case of duress, fraud, undue influence, or misrepresentation or error. While similar to a recission claim, the difference is that a recinded contract is acknowledged and executed, but for some reason was terminated. The annulled contract is to behave as though it never existed in the first place.
A declaratory judgment confirms or determines the rights of the parties without actually ordering anything to be done or awarding damages. For example, a party may seek whether alleged behavior constitutes a tort. It may be possible to later claim damages in follow-up proceedings.
Injunctions in The Netherlands can be mandatory or prohibitory and order the defendant to immediately perform or refrain from doing something in urgent situations. An injunction under Dutch law can be temporary, preliminary or permanent, and can for example be obtained in reference to an intellectual property right.
All injunctions are normally immediately enforceable notwithstanding appeal. Preliminary injunctions must be accompanied with follow-up proceedings o the merits, whereas final injunctions require no further proceedings. In the final judgment, the court can also render a declaratory judgment and issue the payment of damages.