Indemnities in M&A transactions and Section 6:23 DCC
Indemnity claims following the acquisition of a mental healthcare business
On 2 March 2026 the provisional relief judge in Arnhem ordered the seller of a mental healthcare business to pay almost €600,000 in indemnity claims. The seller sought to escape the claims by relying on a settlement agreement that had never taken effect and on Section 6:23 DCC. Both defences failed.
In June 2025 Opos Bidco purchased all the shares in a mental healthcare provider. The share purchase agreement contained indemnities for tax debts, the costs of taking on personnel (the 'carve-out') and repayments to health insurers on account of exceeding the care budget cap. The seller also warranted that, as at the delivery date, no outstanding debt relationships with the company remained. In addition, the seller and its director signed a capital maintenance undertaking of €1,000,000 and a three-year non-compete clause.
After the deal a dispute arose. In October 2025 the parties concluded a settlement agreement, but subject to a condition precedent: approval from Rabobank before 1 December 2025. That approval never came. Meanwhile the selling director announced on LinkedIn that he was becoming a 'strategic adviser' at a competing mental healthcare provider.
How does Section 6:23 DCC work as a defence where a condition precedent is not fulfilled?
The seller first argued that the parties had orally agreed that the claims would only become due and payable after the 2025 annual accounts had been adopted. The judge found that 'remarkable, to put it mildly'. No such agreement appeared anywhere in writing, whereas the share purchase agreement had otherwise been negotiated in full detail. The three witness statements the seller put forward did not help — all the witnesses were affiliated with the seller, and their statements did not show that the buyer had agreed.
Then the reliance on the settlement agreement. It was said to have replaced the earlier obligations, but the condition precedent had never been fulfilled. The seller invoked Section 6:23(1) DCC: the buyer had prevented fulfilment by failing to seek the bank's approval in earnest. The judge rejected this. The buyer had demonstrably done so — an email of 1 December 2025 proved it — and the bank had refused. The seller had, moreover, failed to substantiate why the buyer would have any interest in the condition not being met.
The outcome: €597,351 awarded for an additional payroll tax assessment, transition payments and repayment to health insurers. The claim of €160,723 under the warranty in clause 14 was dismissed — that required further evidence.
The non-compete clause did not result in any penalty. The LinkedIn post pointed towards a breach, but the judge did not consider it proven that the director had actually started work. An order was nonetheless made requiring him to refrain from doing so. According to the judge, the director's suretyship applied solely to the capital maintenance undertaking, not to the indemnities under the share purchase agreement.
Frequently asked questions
Can an oral agreement override a written purchase agreement?
In principle no, certainly not in the case of detailed, negotiated contracts. An oral agreement stands a chance only if both parties later adopt it or confirm it in writing. Here, the purchase agreement had been negotiated down to the last detail, and an oral clause on when the claims fell due, asserted by the seller alone, was not credible. Witnesses on your own side do not strengthen your case.
What exactly does Section 6:23 DCC mean and when does a reliance on it succeed?
This section provides that a party who must fulfil a condition precedent may refuse to do so if the other party prevents fulfilment. The bar is high. You must prove: (1) you intended to fulfil the condition, (2) the other party prevents this, and (3) the other party had an interest in preventing it. Here the seller could not show that the buyer had any interest in the condition failing; the buyer had, moreover, demonstrated that it had indeed made the request.
Does a suretyship also cover warranties that are not expressly stated in it?
No. The judge read the suretyship strictly: it applied solely to capital maintenance, not to the indemnities. A suretyship has a limited scope. If you want security for further obligations, you must agree that separately. A surety is not liable for more than what he has expressly guaranteed.
ECLI:NL:RBGEL:2026:1553, Gelderland District Court, 2 March 2026.
Cited case law
District Courts: ECLI:NL:RBGEL:2026:1553