If your supplier fails to deliver or delivers late, first check the agreed performance, delivery period and terms and conditions. Ask for a specific solution and, if necessary, set the supplier a reasonable final deadline in writing. Depending on the circumstances, you may demand performance, suspend payment, terminate the contract or claim damages. Which step is appropriate depends on, among other things, default, force majeure and your own obligations.
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For a self-employed professional (zzp’er) or an SME, delay can have an immediate knock-on effect: a shop cannot open, fitters are left idle or an assignment for your own customer is put at risk. Acting quickly is important, but a hasty cancellation can give rise to new costs. Work, therefore, on a practical emergency solution and a verifiable legal file at the same time.
What exactly did the supplier promise
Start with the order confirmation, not just the latest email about the delay. What was ordered, in what quantity, to what specifications and to which delivery address? Is installation, commissioning or a test also included? A machine that is on site but cannot be used as agreed may amount to a different failure to perform than a delivery that is missing altogether.
Put all the documents side by side: quotation, purchase order, confirmation, terms and conditions and later amendments. Check which set of terms and conditions applies. A supplier may have included provisions on indicative delivery times, transport, force majeure, partial deliveries and liability. Such provisions are not always decisive, but they cannot be ignored.
Also map out your own role. Was an advance payment made on time? Were the dimensions, drawings and technical data complete? Was the supplier able to unload or install on the agreed date? If performance was hindered partly by your own conduct, that may affect the assessment of the delay and the loss.
Is the delivery date a strict deadline or an indication
A specific date can legally be a strict deadline, but that is not the case in every contract. The wording and the circumstances are taken into account. ‘Delivery no later than 1 November because of the opening’ gives different indications than ‘expected delivery around week 44’. A later arrangement may also have changed the original date.
Where a period has been set for performance, default can arise without a notice of default under Article 6:83 of the Dutch Civil Code (BW), unless the period has a different purpose. Relying on a missed date therefore requires interpretation of the specific arrangement. A date in a schedule is not always an unconditional legal deadline.
Make clear in advance when timely delivery is essential and why. A supplier who knows that a product is needed solely for a particular event is in a different context from one handling an ordinary stock order. Keep that information from the quotation stage; claiming afterwards that every day was crucial is less convincing.
Ask for a specific proposal to put things right
Contact the supplier in writing as soon as the first delay occurs. Ask what is missing, why delivery has not taken place and on what specific date the supplier can perform. Also explain the consequences of the delay. A message saying that they are ‘working on it’ gives you little to go on for your planning and your own customers.
Investigate whether partial delivery, a temporary alternative or a different means of transport is possible. Record who will bear any additional costs. Do not accept a replacement product without checking whether its quality, compatibility and warranty match the original order. A practical solution can be sensible, but it should be accompanied by clear arrangements.
Confirm whether a new date is a definitive replacement of the earlier arrangement or merely a final opportunity to deliver after all. During discussions, you can state that you reserve your claims arising from the earlier delay. That reservation does not create rights you do not have, but it helps prevent an unintended waiver of rights.
When should you give the supplier notice of default
If performance is still possible and default has not already arisen in another way, a notice of default (ingebrekestelling) may be required. In it, you give the supplier a reasonable final period to perform the specific obligation. State the order number, the missing performance and the end date. Make sure the supplier receives the letter.
The period must suit what still needs to be done. A standard sentence with fourteen days may be too generous or, conversely, too short. Earlier preparation and warnings may have an effect. For a simple shipment from existing stock, a different period is appropriate than for the technical modification of an installation.
Do not merely ask for a response if what you require is actual delivery. Otherwise, a supplier can reply on time without performing. You can combine a short period for a response with a separate reasonable period for performance. Make clear that discussions do not automatically extend the final deadline, unless you make new arrangements about that.
Can you suspend payment
In certain circumstances you may temporarily suspend your own performance if the supplier fails to perform. The connection between the obligations, whether they are due, and proportionality are important in this respect. The rules for reciprocal contracts are set out in, among other provisions, Article 6:262 of the Dutch Civil Code. Also check what has been validly agreed about suspension.
A limited missing delivery does not automatically justify withholding all payments on all current orders. Where possible, separate the disputed part from performance that was carried out correctly. Explain which amount you are withholding and why. This prevents the supplier from using your own payment behaviour as a failure to perform.
Suspension does not end the contract. It is a temporary measure, not a definitive release from payment. If the supplier subsequently performs properly, your obligation to pay may become fully due again. Where an advance payment, retention of title or linked contracts are involved, a separate assessment is advisable.
When can you terminate the contract
Termination may be possible in the event of a failure to perform, unless the failure, given its special nature or minor significance, does not justify termination and its consequences. Insofar as performance is not permanently or temporarily impossible, default is in principle required. The main rule is set out in Article 6:265 of the Dutch Civil Code.
Termination is not the same as simply cancelling. Record which failure to perform supports the termination and whether the whole contract or only part of it is affected. A written declaration of termination must be clear. If there is doubt about the conditions, a court assessment may be required.
After termination, obligations to undo performance arise in principle. Where an advance payment was made, repayment may be at issue, while goods received may have to be returned. Exactly what must be reversed depends on the performance and the scope of the termination. Part of an installation that is already usable makes the settlement more complex than a standard order that has not been delivered at all.
Can you buy elsewhere and recover the price difference
A replacement purchase may be commercially necessary, but the extra costs are not automatically recoverable. The legal basis must be sound first: were you entitled to end the original arrangement or to demand substitute performance, and is the supplier liable for the extra costs? Reasonableness and mitigation of loss also play a part.
Keep quotations for alternatives and explain why your choice was necessary and appropriate. A comparable product at a defensible price is easier to justify than a much more luxurious replacement bought without consultation. Note why waiting was not a realistic option, for example because of specific contractual obligations to your own customer.
Avoid ending up having to take two deliveries. If the original contract is still running, a second order can lead to double obligations. Coordinate the legal termination and the practical purchase with each other. In urgent cases, advice in advance can be much cheaper than litigating afterwards over two invoices.
In the case of a delayed delivery, payment, penalties and damages may each require their own assessment. Read when suspension is possible and how to check a contractual penalty. Do not simply deduct an estimated item of loss from the invoice; separate conditions apply to set-off.
If the delivery concerns an integrated software project, also use the technical evidence and repair steps for a failed IT project.
What loss may be eligible for compensation
Damages require more than delay alone. Examine the failure to perform, attributability, the applicable requirements for default, the loss and the causal link. Compensation might cover, for example, the reasonable costs of a temporary arrangement, additional transport or demonstrable downtime. Not every setback can be attributed to the supplier.
In the case of loss of profit, you must calculate the financial consequences carefully. Lost turnover is not the same as lost profit. Include costs saved in the assessment and substantiate which sales or assignments were actually lost. A general estimate without accounting records makes the claim vulnerable.
Check limitations of liability, exclusions and penalty clauses. A contract may limit certain categories of loss, but their applicability, interpretation and enforceability must be assessed. Your own circumstances may also affect how the loss is apportioned. The statutory rules on attribution and contributory negligence are set out in, among other provisions, Articles 6:98 and 6:101 of the Dutch Civil Code.
Force majeure is not an automatic answer to delay
A supplier may invoke force majeure, but mentioning staff shortages, transport problems or a delayed sub-supplier is not enough to exclude all liability. Under Article 6:75 of the Dutch Civil Code, the question is whether the failure is not due to the debtor’s fault and is not for the debtor’s account on other relevant grounds either.
The contract may allocate risks in more detail. Read, therefore, what the force majeure clause actually says, which events it covers and which notification or mitigation obligations apply. An event may cause an obstacle without suspending all obligations indefinitely. Available alternatives may also be relevant.
Force majeure and termination must also be distinguished. The fact that damages are not available because the failure cannot be attributed to the supplier does not automatically mean that you are bound to the contract indefinitely. The conditions for termination and the settlement require their own assessment. Do not let the supplier answer all questions at once with a single general appeal to force majeure.
Foreign suppliers require extra attention
Check the applicable law, the competent court and the arrangements on delivery and transport risk. In international sales, the Vienna Sales Convention (CISG) may apply. A choice of Dutch law does not always automatically exclude that convention. Agreed Incoterms may also determine which party bears certain costs and risks.
Also check who the contracting party and the actual supplier are. A Dutch representative is not automatically liable for a foreign manufacturer. Keep order documents, payment details and relevant communications in a well-organised file. For further help, our explanation of international trade disputes is relevant.
What if the supplier is at risk of bankruptcy
Where there are signs of payment problems, an additional advance payment deserves special attention. Ask what security or specific performance you will receive in return. A promised quick delivery may be worth little if the goods do not yet exist or have not been reserved for you. Also investigate whether a guarantee, insurance or other security arrangement is available.
In the event of bankruptcy, the options change. The mere fact that you have paid does not automatically make you the owner of particular goods or give you priority over other creditors. The contract, ownership and the actual situation must be examined. Read more about the bankruptcy of a contracting party and seek advice on your position in good time.
Record your emergency measures
Draw up an overview of the original schedule, delays, moments of contact and measures taken. Keep evidence of extra costs and communicate reasonably with your own customers. Do not promise a new firm delivery date as long as you cannot back it up. This prevents the loss from growing further because of expectations that are once again not met.
A hypothetical example: a hospitality business is waiting for a refrigeration system for an opening. The owner first asks for delivery in writing, looks into a temporary rental installation and keeps the quotations. It is then assessed whether a final deadline is needed and which extra costs are recoverable. That combination protects business operations and makes any claim specific.
Your own customer is also waiting for the delivery
Delay becomes more complicated when you need the goods or services purchased for your own assignment. In that case, compare two contracts: your arrangement with the supplier and your commitment to your customer. You cannot automatically pass on in full a penalty you have to pay to your customer. The basis of liability, foreseeability, causation and contractual limitations on the supplier’s side remain relevant.
Inform your customer as soon as that is reasonably necessary to prevent further loss. Give a factual update and state which alternatives you are investigating. Do not promise a replacement delivery date that your supplier has not yet confirmed. Also record which measures the customer can take and which temporary solution you agree on together. Good communication can prevent a limited delay from escalating into a larger project dispute.
A fictitious installer, for example, is waiting for an essential component. A usable alternative is more expensive, but it avoids having to reschedule an entire construction crew. Compare the demonstrable costs of the alternative with the delay that can reasonably be expected. Where possible, first ask the supplier for a solution and record why waiting any longer was not justifiable. This shows that the additional expense was a well-founded measure.
In your eventual claim, do not simply add up every conceivable disadvantage. Separate the extra costs actually incurred, any loss of profit and expenses saved. Turnover is not the same as profit. In addition, substantiate the link between the delay and each item of loss. See also how limitations of liability in business contracts work.
In the case of a partial delivery, record which items were received, what is missing and whether the part received is usable. Sign a delivery receipt carefully: receipt of boxes is not necessarily the same as substantive acceptance of everything ordered. Check exactly what the text on the document declares. If you had to carry out extra work that you wish to invoice to your own customer, that requires a separate basis. The rules on unpaid additional work remain relevant in that respect.
Frequently asked questions
Can I cancel immediately once the delivery date has passed?
Not always. First determine whether the deadline was strict, which arrangements apply and whether a notice of default is required. Cancellation under a contract and termination for failure to perform are different routes. An incorrect termination may result in you having to bear costs or loss yourself.
My supplier is invoking force majeure: do I have to accept that?
Ask for specific substantiation and check the contract. Not every obstacle is force majeure in the legal sense. Even where damages are limited, other rights may remain relevant. Assess separately the obligation to deliver, possible alternatives, termination and repayment of an advance payment.
Can I withhold the entire invoice?
That depends on the connection with and the extent of the failure to perform and on valid contractual arrangements. Withholding everything may go too far if only a limited part is missing. State which part you are suspending and why, and pay undisputed amounts where appropriate.
Can I claim my lost turnover?
Lost turnover is not automatically the recoverable loss. You must substantiate which profit or other loss was actually missed, what link there is with the failure to perform and which limitations apply. Costs saved and reasonable mitigation of loss may affect the calculation.
What if the supplier only offers a credit voucher?
Whether you have to accept a credit voucher depends on your rights and the chosen settlement. If you have a valid claim to repayment, the supplier cannot impose a different performance without a legal basis. Do not agree to an arrangement until it is clear which rights you would be giving up.
Can a lawyer help even without proceedings?
Yes. A contract analysis, a targeted formal demand or negotiation may already be needed to choose the right route. Whether proceedings make sense depends on the evidence, the interests at stake and the prospects of recovery. Ask for clarity about the work and costs in advance, so that the approach suits your business.
Help with a delivery dispute
Arslan Advocaten can assess what rights you have in the event of non-delivery or delay and help with a notice of default, termination or claim for damages. Gather your order, terms and conditions, proof of payment, correspondence and an overview of the consequences. See our corporate and commercial law assistance or contact us to discuss your situation.
Written by Onur Arslan, attorney at Arslan Advocaten. Registered in the specialisation register of the Netherlands Bar for employment law and personal injury. Content reviewed on 12 September 2026 against the statutory text on wetten.overheid.nl and the cited judgments on rechtspraak.nl.
