Unfair contracts? Here are your tools!

For entrepreneurs, a contract often offers security and predictability. A good deal is even often cause for a toast. Many entrepreneurs prefer to work with long-term contracts, as this provides security and a sense of the future.

But such a deal can also become a burden due to changes in circumstances. Anyone who thought the turbulence of the COVID-19 years was behind us is mistaken. In the first quarter of 2026, entrepreneurs are once again facing major supply shocks simultaneously in areas such as RAM chips, energy, and fertilizer.

Contracts signed earlier are no longer profitable for many entrepreneurs at this time. In this article, I’ll provide you with a number of tools for addressing and renegotiating these contracts, in case you find yourself in this difficult situation.

What do the contracts require?

The starting point for addressing an unexpected sharp rise in costs is to take stock of the company’s current contractual obligations. This requires a critical examination of what the company is actually obligated to do under the agreements.

For example, there may be customers with whom a framework agreement has been concluded, but where the company has not committed to accepting a certain minimum level of orders. In principle, the company can inform those customers that it will not be able to deliver under the agreement in the near future, or only at increased prices.

Contract Administration

In addition to assessing the obligation itself, carefully reviewing and cataloging the various contracts and any applicable general terms and conditions offers even more important opportunities. Some agreements include a price adjustment clause; this may provide a solution.

Many contracts also contain far-reaching limitations of liability (exculpatory clauses). And it is often foreseeable that ceasing to supply certain customers will cause more damage than with others. In contrast to contracts of the aforementioned types, there are other contracts that contain very strict penalty clauses.

When developments follow one another in rapid succession, the challenge for the entrepreneur is to remain in control. A clear and easily manageable understanding of the content of the contracts is indispensable in this regard. Flexibility is important, and we can help you with that.

Triage

Sometimes it is not possible to continue fulfilling all contracts. A breach of contract is then inevitable, and liability for damages looms. Carefully considering which contracts should be (temporarily) suspended is therefore of great importance.

When you, as a business owner, are faced with a sharp increase in costs, it is essential to have a clear inventory of your contracts. This allows you to apply “contractual triage.” You continue to fulfill the stricter contracts where your failure to perform will cause greater harm, while informing other clients—where you are better protected—that you cannot deliver, or at least only under modified terms.

Force majeure or unforeseen circumstances? An important distinction

In practice, the terms force majeure and unforeseen circumstances are often used interchangeably, but legally speaking, they are two fundamentally different concepts.

Force majeure (Article 6:75 of the Dutch Civil Code) refers to a situation in which the debtor cannot be held responsible for the failure to fulfill an obligation. Examples include a natural disaster, an export ban, or, in some cases, a war that makes delivery physically impossible. In cases of force majeure, there is no breach of contract, and the debtor is, in principle, not liable for the other party’s damages. This concerns the impossibility of performance: you cannot deliver, regardless of the costs.

Unforeseen circumstances (Article 6:258 of the Dutch Civil Code) are different. Here, performance is technically still possible, but has become so onerous due to unforeseen circumstances that maintaining the agreement unchanged can no longer be reasonably expected. An explosive price increase in raw materials or components, such as the current RAM shortage or rising energy prices, generally falls into this category. Upon request, the court may amend the agreement or terminate it in whole or in part.

In the current situation, Article 6:258 of the Dutch Civil Code is the most relevant provision for many businesses: deliveries are, in principle, still feasible, but at such increased costs that performance at the original price has become unreasonable.

Unforeseen circumstances: opportunities and risks

Article 6:258 of the Dutch Civil Code is applied by courts with great caution. Only if the unforeseen circumstance—such as a cost increase or supply issues—is so severe that the other party cannot reasonably expect performance to continue unchanged may the court intervene on this basis.

The nature of the price shock also plays a role. In the case of the RAM price increase, for example, a judge will assess whether a business owner should reasonably have taken price volatility in the semiconductor market into account at the time the contract was concluded. The years of stability in RAM prices prior to September 2025, combined with the exceptional and unforeseeable cause (the secret buying up of production capacity by a dominant market player), may work in favor of the party invoking this provision.

The general rule, however, remains: a deal is a deal. Because swift action is required in the event of a shock, one generally cannot blindly rely on the effectiveness of this legal protection. If you thought you could rely on this article, but the court finds that unjustified, you likely breached the contract and are “simply” liable for the resulting damages, including any contractual penalties.

Give us a call!

In this blog, I’ve offered some guidance on how to address the situation. This blog is just a starting point. There are several alternatives, depending on the sector in which you operate. It also makes a difference who you supply and whether you trade internationally; international contracts may be subject to different regimes, such as the CISG or contractual force majeure provisions.

Are you facing a supply shock due to rising energy or component prices, or have deliveries to you been suspended and you disagree with this? Then call us right away, and one of our expert attorneys will be happy to help you find a solution!