August 11, 2022


Let'S Talk Law

Exoneration clauses in commercial contracts: excluding indirect destruction

In Dutch lawful practice, contracting functions usually concur on exoneration clauses in commercial contracts in which liability for oblique damage is excluded. Nevertheless, the expression indirect destruction does not exist in the Dutch Civil Code, and in the Dutch language there is no typically approved that means for indirect harm. Conflicts hence fairly usually crop up in between contracting functions in relation to the interpretation of oblique problems.

The issue of this blogpost problems the interpretation of oblique hurt in exoneration clauses below Dutch situation legislation and in judicial creating. Further more, it offers details to help contracting parties steer clear of prospective misunderstandings about the interpretation of oblique destruction.

Indirect damage

Under Dutch law, the interpretation of contracts (and hence indirect damage) is ruled by the Haviltex regular. In accordance to this standard, the wording of the deal is not the only ingredient that issues when interpreting a contract weight ought to be specified to all of the specific conditions of the circumstance, subject matter to the principles of reasonableness and fairness. This signifies that when a situation is introduced right before a courtroom in the Netherlands, the court will examine not only the wording of the provisions, but also the intention of the parties and what they could moderately assume from each other. The intention or instances need to have been evident to the other social gathering.

As there is no commonly recognized this means for indirect harm in Dutch, the wording of the provision can not serve as a ample basis for the interpretation of oblique hurt. One more challenge is that, at the time contracting get-togethers conclude a agreement, they do not consider the interpretation of the time period indirect damage into consideration. Therefore, it is difficult for judges to ascertain the intention of the functions. For this cause, Dutch judges search for a website link with more basic objective reference factors judges consider into consideration the remaining textual content of the deal, and the general interpretation of indirect injury in the sector at hand.

Generally, Dutch judges also look for a backlink with the Dutch statutory provisions for compensation (write-up 6:95 DCC – short article 6:98 DCC). In this way, Dutch judges make a difference involving direct and indirect hurt by getting into thing to consider the diploma of accountability in the that means of post 6:98 DCC. This entails that direct hurt suggests “directly accountable damage”. The term oblique damage implies, in that scenario, “less directly accountable damage” but even now accountable within just the this means of write-up 6:98 DCC. On top of that, judges outline the expression indirect injury as damage which is not the direct consequence of the breach of the deal at hand. In that situation, direct harm suggests injury which is the direct consequence of the breach of contract at hand.

These latter references look regularly in Dutch circumstance regulation. Having said that, a drawback of these reference details is that their system is not quite obvious, since the issue is: at what place is the damage concerned “directly accountable damage” and at what issue is the destruction anxious “less immediately accountable” within the indicating of posting 6:98 DCC? On top of that, at what point is the injury in query “the direct consequence of the breach of contract” and at what level is it not?

In Dutch literature and situation law, a connection with Anglo-American regulation (i.e. British isles and US legislation) is sought by decoding oblique injury. In accordance to Anglo-American law, the phrase direct destruction usually means destruction that occurs “as a consequence of the typical study course of issues soon after the breach of contract.” Indirect destruction entails hurt which is fewer closely connected, but nonetheless in “the acceptable contemplation of the functions at the time of entry into the contract.”

A downside of this technique (and Anglo-American law scenario regulation on this subject) is that this strategy is continue to unclear, as the problem this time is: at what stage does damage happen immediately as a end result of the common study course of issues following the breach of contract, and at what stage it does not. Even so, this Anglo-American law reference position may perhaps be helpful if a dispute arises in between functions from these jurisdictions, as it is plausible that at the time this sort of events concluded the contract, they would have had the intention to seek a url with Anglo- American law.


In Dutch literature and scenario legislation, a url is sought with unique normal objective reference factors when interpreting indirect hurt. On the other hand, none of these reference details are especially very clear. Hence, it is hard to forecast whether or not legal responsibility for certain types of destruction is excluded in a scenario in which legal responsibility for oblique hurt has been excluded by way of an exoneration clause.

To avoid likely disagreeable surprises, it is thus recommended to clearly lay down what the time period oblique harm means in the exoneration clause at hand. Contracting events can, for example, give illustrations of the time period oblique problems exemplified by “lost profits” or “loss due to delay”. The time period direct injury should really be formulated negatively in that situation i.e. immediate destruction is hurt that is not indirect.