What is an ingebrekestelling (notice of default)? When you need one
A notice of default gives the other party a final deadline to perform — and triggers default. Read what it must contain and when you need one.
An ingebrekestelling (notice of default) is a formal letter in which you give the other party one last, reasonable deadline to meet their obligations after all. It is often a necessary intermediate step: only once that deadline passes unused does the other party fall into verzuim (default) — and only then can you claim compensation or terminate the contract.
Why is a notice of default needed?
Dutch law protects the party that is falling short up to a point: you cannot go straight to court or claim damages the moment someone misses an appointment. The other party must first be given the chance to put things right. The ingebrekestelling fixes that moment. Without default there is, as a rule, no right to compensation for delay, and you cannot terminate the contract.
What should it contain?
A usable ingebrekestelling contains at least:
- a clear description of the shortcoming — what has not been done, or done defectively;
- a reasonable deadline within which correct performance must still take place;
- a statement that the other party is in default as soon as that deadline passes;
- the consequences you attach to this (compensation, repair by a third party, or termination).
What counts as a reasonable deadline depends on the situation. For a simple correction, a few days may be enough; for substantial work, longer is often needed.
When is a notice of default not needed?
In a number of cases default arises by operation of law (van rechtswege), without a notice of default:
- when a fatale termijn (strict/final deadline) has passed — a date the parties agreed as an absolute cut-off;
- when the other party lets you know that they will not perform in any event;
- when performance has become permanently impossible.
Unsure whether a deadline was strict? Then send an ingebrekestelling anyway, to be safe. It can never do any harm and it prevents arguments afterwards.
What is the best way to send it?
Make sure you can later prove that and when the other party received the letter. Sending it by registered post (aangetekend), or in another way that provides proof of receipt, is therefore strongly advisable — especially if it comes to legal proceedings, that evidence is worth its weight in gold.
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