Forfeiture clauses in general terms and conditions: when are they unreasonably onerous?

Forfeiture clauses of contractors, lawyers and accountants

Against a consumer, a forfeiture clause of a contractor, lawyer or accountant is almost always presumed to be unreasonably onerous: the provider (the contractor, lawyer or accountant) must then show why the clause is nevertheless reasonable. With construction conditions agreed with consumer organisations that mostly succeeded; with one-sided terms of lawyers and accountants it mostly did not. Against a business, periods of one or two years held up in most of the decisions analysed. On 25 September 2026 the Dutch Supreme Court left open whether the periods in the AVA 2013 construction conditions hold up against a consumer.

AVA 2013 forfeiture period: a writ almost seven weeks late

In its judgment of 25 September 2026 the Supreme Court set aside an interlocutory judgment of the Amsterdam Court of Appeal, given midway through the proceedings. That court had classed the forfeiture periods in Article 16.3 of the AVA 2013 as an unfair term in a consumer contract, in a case brought by two private individuals who had had a house built. The case has been remitted to the Court of Appeal in The Hague.

In December 2014 the clients concluded a contract for work for the construction of a detached house, incorporating the AVA 2013, the general conditions issued by the contractors' federation Bouwend Nederland. The works were delivered on 17 December 2015 and the thirty-day maintenance period ended on 17 January 2016. In September 2018 a storm damaged the roof. The firm that repaired the damage found that the ridge had not been built properly and that the entire roof structure appeared to be too lightly built. The clients served notice of default on the contractor in February 2019 and issued a writ of summons on 5 March 2021.

Under Article 16.3(4) of the AVA 2013, a legal action in respect of a defect that comes to light after the maintenance period is inadmissible if it is brought more than five years after that period: the court then does not reach the question whether there actually is a defect. For a serious defect the period is ten years. The five years ended on 17 January 2021, so the writ came almost seven weeks too late. Unlike a limitation period, this period cannot be interrupted: a letter does not make it start again. Under this clause, only bringing proceedings in time stops it.

The North Holland District Court dismissed the claims in January 2022: the period was generous, and a comparable term appears in consumer conditions drawn up with consumer organisations (para. 4.8). The Amsterdam Court of Appeal took a different view in December 2024. In its view, the term serves the same purpose as the statutory duty to complain and the limitation period, but bears more heavily on the consumer (paras 5.8-5.9). The consumer has to litigate and cannot interrupt the period. The period can run before the defect has been discovered. And according to the court the consumer loses all his rights, the reading that the Supreme Court later called incomprehensible. According to the court, the same applied to the periods of two and ten years (para. 5.12).

Supreme Court: three complaints succeed, main question left open

The Supreme Court set the judgment aside on three points. The first is interpretation: Article 16.3(4) speaks of a legal action (rechtsvordering) that is "inadmissible" if it "is brought" too late. The finding that all rights therefore lapse is incomprehensible given that wording and what the parties had argued (para. 3.3). Advocate General Valk, who advised the Supreme Court before the judgment, found three indications in that single sentence that only the right of action lapses (opinion of Advocate General Valk, para. 3.30).

The second point concerns the involvement of consumer organisations. The Court of Appeal held that comparable terms in conditions drawn up with such organisations say "nothing" about the fairness of a specific term. The Supreme Court held, by contrast, that this circumstance is "also of significance" (para. 3.5).

The third point concerns the two-year period in paragraph 3. It applies only to defects that became apparent within the maintenance period, and therefore cannot run before the defect is visible. The Court of Appeal was not entitled to hold it unfair on the same grounds as the periods in paragraph 4 without further reasoning (para. 3.7).

The Supreme Court left the main question open (para. 3.8), as the Advocate General had recommended. He suspects that contractors have generally priced on the tacit assumption that their liability is shorter than the statute provides (opinion, para. 3.16). A court that strikes down such periods must realise that the consequences are far-reaching; its reasoning "must therefore be especially careful" (opinion, para. 3.17). A precedent would ideally be set in preliminary ruling proceedings, in which the Supreme Court answers questions from a lower court and the construction sector and consumer organisations can also be heard. The case had proceeded in default: the clients had not appeared in the appeal in cassation (opinion, para. 3.35).

Black list, grey list or the open standard

A term in general terms and conditions is voidable if it is unreasonably onerous for the other party (Section 6:233(a) DCC). That is the open standard, under which all the circumstances count. For consumers, the Civil Code fills in that standard with two lists, and the Supreme Court has explained where forfeiture clauses fall (judgment of 27 March 2020, para. 3.1.3).

A term that shortens a statutory limitation or forfeiture period to less than one year is on the black list and is always unreasonably onerous (Section 6:236(g) DCC). A shortening to one year or more is tested against the open standard only. All other forfeiture clauses, including a contractual forfeiture period that replaces a statutory limitation period, are on the grey list: they are presumed to be unreasonably onerous (Section 6:237(h) DCC). In 2023 the Supreme Court added that the same applies to a term that replaces the duty in Section 6:89 DCC to complain within a reasonable time with a fixed, short period (judgment of 8 September 2023, paras 3.3.3-3.3.4).

A forfeiture clause of a contractor or adviser therefore almost always ends up on the grey list as against a consumer. In construction it replaces the limitation period of Section 7:761 DCC; in an advisory or legal engagement it replaces the limitation period of five years from knowledge in Section 3:310 DCC. The substantiation the provider must give to rebut the presumption depends on the circumstances and on what the parties argue (Achmea/Stedin, 23 January 2026, para. 3.2.2). In consumer cases, Section 6:233 DCC is interpreted in line with the Unfair Terms Directive: an unreasonably onerous term is also unfair, and the court must take the lists into account of its own motion, that is, without either party raising them (para. 3.2.1). That applies to lawyers too, because the Directive covers standard contracts for legal services with a consumer (CJEU 15 January 2015, Šiba).

The test is applied as at the conclusion of the contract (Article 4(1) of the Directive). What happens afterwards belongs to a second test: is reliance on the term unacceptable in the specific case by the standards of reasonableness and fairness (Section 6:248(2) DCC)? For the first test, four questions decide the outcome in the decisions analysed: is the other party a consumer, who drew up the term, how does the period work, and what has to happen within that period.

Consumer or business: the reach of the lists

The lists protect only a natural person who is not acting in the course of a profession or business. Courts assess this per engagement and by reference to its purpose. A director and major shareholder with a property portfolio was not a consumer as against his accountant even for his income tax return: his interests as an investor and director-shareholder were intertwined with that work (Arnhem-Leeuwarden Court of Appeal, 16 December 2025, paras 3.22-3.23).

How large the difference is can be seen from the model clause of the Royal Netherlands Institute of Chartered Accountants (NBA): claims lapse one year after the client became aware or could reasonably have become aware of them. In a case against a private limited company, the Central Netherlands District Court called such a period "customary in practice" (Central Netherlands District Court, 25 May 2022, paras 3.5-3.7). In a case brought by a market gardener, the Zeeland-West-Brabant District Court was presented in April 2024 with an identically worded clause. As against the market gardener, who had acted as a consumer in relation to his marital property agreement (huwelijkse voorwaarden), it annulled the clause of its own motion, because the accountancy firm had put forward insufficient grounds to rebut the presumption. As against his company, the same clause stood (paras 5.9 and 5.11-5.14).

For a party that is not a consumer but resembles one, the lists can still carry weight under the open standard (reflexwerking). In the same judgment of 8 September 2023 the Supreme Court upheld the decision of the Arnhem-Leeuwarden Court of Appeal to take into account, in the case of a cheese and dairy business, that its financial adviser's complaint clause appears on one of the lists. The complex financial subject matter fell outside the business's actual activities, and it had engaged an expert precisely for that reason (paras 3.2.2-3.2.3). Where the engagement concerns the core of the business, such as a manure digester for a biogas company, that argument fails (Overijssel District Court, 10 December 2025, paras 5.9-5.11).

Who drew up the term, and with whom

Under the judgment of 25 September, it is "also of significance" that a comparable term appears in other conditions drawn up in consultation with consumer organisations (para. 3.5). Following the literature, the Advocate General calls the consent of a representative organisation "in principle only a supporting argument", and no reason for a milder review (opinion, para. 3.23). What does count is what was given in return: if a consumer organisation accepted a term because it secured something elsewhere, that is a compensating advantage (opinion, para. 3.25).

In construction, that involvement weighs heavily. In June 2021 the Court of Appeal in The Hague upheld a forfeiture period of five years after a six-month warranty period in conditions for new-build homes. An identical term appeared in a model adopted with, among others, the Consumers' Association (Consumentenbond) and the homeowners' interest organisation Vereniging Eigen Huis, and in consumer conditions for renovations drawn up under the supervision of the Social and Economic Council (SER). On top of that came a completion and repair guarantee and a period of twenty years for serious defects (paras 5.8-5.9). The Central Netherlands District Court followed that line in April 2026 for the conditions of the new-build warranty scheme Woningborg, even though the defect in a drain only became visible almost four years after the period had ended (paras 3.9 and 3.17).

Where such consultation was absent, the provider had to rebut the presumption on its own, and as against consumers that mostly failed in the cases analysed. In a case on the professional liability of a lawyer, the Court of Appeal in The Hague held in May 2026 that his forfeiture clause, one year from knowledge, was unreasonably onerous as against a former lorry driver. That a file might already have been weeded within a year does not fit with the obligation to keep files for five years. The client instructed a lawyer precisely because he did not understand the subject matter, and a consumer cannot be expected to be alert to such a term (paras 6.9-6.10).

Legal certainty alone is not enough. In December 2024 the Zeeland-West-Brabant District Court, of its own motion, annulled the clause of a law firm that relied only on legal certainty, while all the documents turned out still to be available a year later (para. 4.14).

Length, starting point and interruption of the period

Length matters relative to the statutory scheme. Courts in construction cases called five to five and a half years after delivery "ample" or "generous", because most hidden defects come to light within that time (Court of Appeal in The Hague 2021, para. 5.8; North Holland District Court 2022, para. 4.8). As against a consumer, one year is a "substantially shorter" period than the statutory five years, the North Holland District Court held of a litigation funder (North Holland District Court, 12 November 2025, para. 4.7).

The trickiest point is when the period starts. A period that runs from delivery or from the end of the engagement can expire before the client knows that anything is wrong. In the terms of many lawyers and accountants the period runs only from knowledge: the moment at which the client knows or could have known of the error. With a service provider that can come late: a client who was entitled to rely on his adviser's expertise may only have sufficient certainty after legal advice or a court ruling (Supreme Court 9 October 2020, para. 3.3.3). The Overijssel District Court thus let a forfeiture period in an adviser's terms run only from a decision of the NBA complaints committee (Overijssel District Court, 28 April 2021, paras 4.37-4.38).

The Advocate General finds it understandable that the construction industry opted for a forfeiture period, which cannot be interrupted (North Holland District Court 2022, para. 4.7). Under the Dutch system a limitation period can be interrupted again and again, so a contractor would in many cases have to maintain reserves or insurance for more than twenty years. The flip side is that under a forfeiture period a client is more likely to lose his claim unexpectedly (opinion, para. 3.15). For the Amsterdam Court of Appeal, the need to litigate and the impossibility of interruption were two of its three core objections (para. 5.9). In the other decisions analysed, no court treated those two features as decisive.

The wording therefore matters. A term that makes a claim "time-barred" after one year shortens the statutory limitation period and remains a limitation period. It can, however, be interrupted, in the case of a damages claim simply by a letter in which the client unequivocally reserves his right to damages (Section 3:317(1) DCC). Some terms combine both mechanisms. Under Scania's conditions a claim "becomes time-barred" after one year and "lapses" after two; a notice of liability and the correspondence about it did not stop the forfeiture period, although reliance on the clause foundered on reasonableness and fairness (Zeeland-West-Brabant District Court, 2 April 2025, paras 4.10 and 4.17). Under such a term the short limb can be interrupted, but proceedings must be brought before the outer limit.

What must happen within the period, and what lapses

A well-drafted term states what the client must do within the period to prevent forfeiture. Read literally, the claim in the Hague lawyer case lapsed after one year "even if a complaint was made within that year or even proceedings were brought". The court counted that against the clause, although this was not needed for its decision (para. 6.11). On the NBA clause, which leaves that question open, the decisions diverge. Two district courts found a notice of liability within the period insufficient (Central Netherlands District Court 2022, para. 3.10; the market gardener's case, para. 5.13). The Arnhem-Leeuwarden Court of Appeal accepted in April 2021, under an identically worded clause, that a notice of liability did suffice (para. 4.10).

What lapses is a matter of interpretation: a forfeiture clause does not automatically lead to the loss of all rights (opinion, para. 3.28). The wording of the construction conditions indicates that only the right of action lapses, and that has practical consequences. In arbitral case law on the comparable provision in the UAV, the standard conditions for construction works, it is settled that the client can still set off against what he owes the contractor after the period has expired. The provision mentions only the right of action, and set-off does not end when a claim becomes time-barred either (Section 6:131(1) DCC; opinion, para. 3.30, footnote 34). If the term provides that the right itself lapses, set-off and suspension go with it. A farming partnership that claimed damages from its animal feed supplier too late thus could no longer set that claim off against the outstanding invoices either (Arnhem-Leeuwarden Court of Appeal, 24 June 2025, paras 2.6 and 3.13-3.14).

Reasonableness and fairness as a safety net

If the term holds, reliance on it can still be unacceptable (Section 6:248(2) DCC). Courts apply it with restraint, but providers regularly lose on it, even against businesses. An accountant told a farmer trading as a sole proprietor that things would be put right and that he would take responsibility, until his insurer became involved. He never unequivocally announced that he would invoke the clause, and partly for that reason could no longer rely on it (Arnhem-Leeuwarden Court of Appeal 2021, para. 4.10). A tax adviser likewise could not rely on his clause: it did not say what the clients had to do, and after the complaint he had told them that he and his insurer were looking for a solution, without taking a definitive position before the period ended ('s-Hertogenbosch Court of Appeal, 28 November 2023, paras 3.25-3.26). A law firm could not rely on twelve months from the work for errors that the client could only discover through another lawyer (The Hague District Court, 6 January 2016, para. 4.5).

Delay after a complaint can cost the client his claim. Buyers who waited more than sixteen months after their complaint about a pre-purchase building survey before issuing a writ lost their claim against the surveyor. Some courts took the client's inaction into account in assessing the term itself (Gelderland District Court, 22 February 2023, para. 4.6; see also Court of Appeal in The Hague 2021, para. 5.8, and North Holland District Court 2022, para. 4.8). The statutory text does speak of conduct that justifies the forfeiture, but the Directive places the test at the moment the contract is concluded. What happens afterwards therefore belongs under reasonableness and fairness. The Amsterdam Court of Appeal likewise left circumstances arising after conclusion of the contract out of its assessment of the term (para. 5.10).

What does this mean for clients and providers?

For a client, it starts with the question whether the terms apply at all. Some forfeiture clauses fall at that first hurdle, because the client was not given a reasonable opportunity to take note of them (Section 6:233(b) DCC). A law firm, for instance, admitted at the hearing that it had not sent its terms (Amsterdam District Court, 9 April 2025, para. 3.2).

Next comes the wording. If the clause says the claim becomes "time-barred", a notice of liability with an unequivocal reservation interrupts the period. If it says the claim "lapses", such a letter cannot be relied on, and a disciplinary complaint does not count as proceedings (Central Netherlands District Court 2022, para. 3.11). The limitation period for a claim for rescission cannot be interrupted by letter: that requires legal proceedings within six months of a written demand (Supreme Court 14 November 2025, para. 3.2.5). Anyone who wants certainty brings proceedings in good time and does not count on the safety net.

A consumer has the advantage that the court must take the lists into account of its own motion. A business is in a weaker position: at most the open standard applies to it. Its chances lie, among other things, in the lists carrying weight under that standard, if the engagement fell outside its actual business, and in reasonableness and fairness, if the provider gave the impression after the complaint that matters would be put right. A client with an invoice still outstanding should check whether the clause makes the right of action lapse or the right itself: whether set-off is still possible may depend on it.

In pending cases on the AVA 2013 and comparable conditions, the outcome is open again. The contractor will point to conditions agreed with consumer organisations, the client to the need to litigate and the impossibility of interruption, objections the Supreme Court did not address. For contracts for the construction of buildings concluded on or after 1 January 2024, Section 7:758(4) DCC also applies (The Hague District Court, 13 August 2025, para. 5.2.7). The contractor is then liable for defects that were not discovered at delivery, unless they cannot be attributed to him. Against a consumer, that rule cannot be departed from to his detriment. The provision says nothing about forfeiture periods.

For a provider, the lesson is that legal certainty alone does not rebut the presumption. A provider that wants to enforce the clause against consumers should explain specifically why the period is needed: its evidential position, insurability, comparable terms agreed with consumer organisations, and what is given in return, such as a guarantee or a longer period for serious defects. A clause that runs from knowledge and states clearly which step prevents forfeiture is stronger than one that runs from the work and says nothing on the point. And a provider that negotiates after a complaint would do well not to leave the client in doubt as to whether it will invoke the clause.

Cited case law

Supreme Court: ECLI:NL:HR:2026:1556 (25 September 2026, paras 3.3, 3.5 and 3.7; the interpretation that Article 16.3(4) AVA 2013 causes all rights to lapse is incomprehensible, the involvement of consumer organisations in comparable conditions is also of significance, the period in paragraph 3 does not run before the defect becomes apparent; remitted to the Court of Appeal in The Hague); ECLI:NL:HR:2026:97 (23 January 2026, Achmea/Stedin, paras 3.2.1-3.2.2; lists to be taken into account of the court's own motion in consumer cases, the substantiation required to rebut the presumption depends on the circumstances and the parties' arguments); ECLI:NL:HR:2023:1197 (8 September 2023, paras 3.2.2-3.3.4; a complaint clause replacing Section 6:89 DCC falls on the grey list, the lists can be taken into account where the engagement falls outside the actual business activities); ECLI:NL:HR:2020:531 (27 March 2020, para. 3.1.3; how forfeiture clauses divide between the black list, the open standard and the grey list); ECLI:NL:HR:2025:1685 (14 November 2025, paras 3.2.2-3.2.5; the limitation period of a damages claim can be interrupted by a written notice, that of a claim for rescission only by a demand followed by legal proceedings); ECLI:NL:HR:2020:1603 (9 October 2020, para. 3.3.3; a client entitled to rely on the expertise of a tax or legal service provider may only have sufficient certainty after legal advice or a court ruling).

Court of Justice of the European Union: C-537/13, Šiba (15 January 2015; Directive 93/13 applies to standard contracts for legal services between a lawyer and a consumer).

Advocate General: ECLI:NL:PHR:2026:308 (Advocate General Valk, 27 March 2026, paras 3.15-3.17, 3.23-3.25, 3.28-3.30 and 3.35; background to forfeiture periods in construction, consultation with consumer organisations as a supporting argument, interpretation of the legal effect, case for a decision that does not settle the point of principle).

Courts of Appeal: ECLI:NL:GHDHA:2026:942 (The Hague, 12 May 2026, paras 6.9-6.11; one-year clause of a lawyer unreasonably onerous as against a consumer); ECLI:NL:GHARL:2025:8414 (Arnhem-Leeuwarden, 16 December 2025, paras 3.22-3.23; director-shareholder with a property portfolio not a consumer as against his accountant); ECLI:NL:GHARL:2025:3898 (Arnhem-Leeuwarden, 24 June 2025, paras 2.6 and 3.13-3.14; once the right has lapsed, set-off and suspension go too); ECLI:NL:GHAMS:2024:3490 (Amsterdam, 17 December 2024, paras 5.8-5.12; forfeiture periods in the AVA 2013 held unfair, set aside by the Supreme Court on 25 September 2026); ECLI:NL:GHSHE:2023:3996 ('s-Hertogenbosch, 28 November 2023, paras 3.25-3.26; tax adviser's reliance on an unclear clause unacceptable after holding out a solution); ECLI:NL:GHDHA:2021:1657 (The Hague, 8 June 2021, paras 5.8-5.9; forfeiture period of five years after a warranty period in new-build conditions not unfair); ECLI:NL:GHARL:2021:3211 (Arnhem-Leeuwarden, 6 April 2021, para. 4.10; a notice of liability within the period suffices, accountant's reliance on the clause unacceptable).

District Courts: ECLI:NL:RBMNE:2026:2146 (Central Netherlands, subdistrict court Amersfoort, 22 April 2026, paras 3.9, 3.17 and 3.20; Woningborg forfeiture period not unreasonably onerous, even for a defect that became visible after it expired); ECLI:NL:RBOVE:2025:7295 (Overijssel, 10 December 2025, paras 5.9-5.11; the lists carry no weight where the engagement concerns the core of the business); ECLI:NL:RBNHO:2025:13335 (North Holland, 12 November 2025, para. 4.7; litigation funder's one-year clause annulled of the court's own motion as against a consumer); ECLI:NL:RBZWB:2025:1904 (Zeeland-West-Brabant, 2 April 2025, paras 4.10, 4.14 and 4.17; clause under which claims become time-barred after one year and lapse after two, a notice of liability does not stop the forfeiture, reliance on it nevertheless unacceptable); ECLI:NL:RBDHA:2025:15120 (The Hague, 13 August 2025, para. 5.2.7; Section 7:758(4) DCC does not apply to contracts concluded before 2024); ECLI:NL:RBAMS:2025:2255 (Amsterdam, 9 April 2025, para. 3.2; terms not sent, clause voidable); ECLI:NL:RBZWB:2024:9397 (Zeeland-West-Brabant, 31 December 2024, para. 4.14; presumption not rebutted by legal certainty alone, documents still available); ECLI:NL:RBZWB:2024:2940 (Zeeland-West-Brabant, 24 April 2024, paras 5.5, 5.9 and 5.11-5.14; accountant's clause annulled of the court's own motion as against a consumer, upheld as against his company, reliance first raised in the proceedings allowed); ECLI:NL:RBNHO:2023:5694 (North Holland, 14 June 2023, paras 2.6-2.7 and 2.10; owners' association outside the Directive, no serious defect); ECLI:NL:RBGEL:2023:834 (Gelderland, 22 February 2023, para. 4.6; presumption rebutted by the buyers' inaction); ECLI:NL:RBOVE:2021:1903 (Overijssel, 28 April 2021, paras 4.37-4.38; a forfeiture period running from knowledge starts only once there is sufficient certainty, here the decision of the NBA complaints committee); ECLI:NL:RBMNE:2022:2033 (Central Netherlands, 25 May 2022, paras 3.5-3.7 and 3.10-3.11; NBA clause customary as against a company, notice of liability and disciplinary complaint insufficient); ECLI:NL:RBNHO:2022:142 (North Holland, 12 January 2022, paras 4.7-4.8 and 4.13-4.16; first instance in the AVA case, period generous and not capable of interruption, no serious defect); ECLI:NL:RBDHA:2016:23 (The Hague, 6 January 2016, para. 4.5; law firm's reliance on a period running from the work unacceptable).

Juriaan de Vries is a lawyer at Prime Law and litigates on the liability of contractors and professionals. See the disclaimer.

See also

• Car hire firm's debt-collection cost clause annulled: court reviews of its own motion in default
• When is a lawyer liable for a professional error?
• What happens to instalment payments when the contractor fails to deliver up the works?