On 12 April 2024, the Supreme Court in The Netherlands gave an opinion on the extent of damages suffered by the buyer as a result of the sellers’ failure to fulfil their obligation to deliver a plot of land. The question is when the sellers’ default occurred. This has implications for the amount of the penalty and/or damages.
The Supreme Court states first that default occurs without notice of default when the creditor must infer from a communication from the debtor that the latter will fail in the performance of the obligation. If the relevant obligation is due, the default then commences by operation of law. According to the Supreme Court, the fact that, after the default has occurred, a creditor gives the debtor the opportunity to still perform does not mean that the creditor waives, or processes, his right to invoke the default that occurred earlier. The court found that the sellers’ letter of 19 January 2017 contained a clear communication from which the buyer could infer that the sellers would default. Thereby, the default occurred by operation of law. In the letter of 20 January 2017, the buyer extended the offer he had previously made to the sellers, and with the letter of 1 February 2017, he gave the sellers the opportunity to still comply. This does not mean that the buyer could no longer rely on the default entered on 19 January 2017, as the sellers did not accept this offer and did not take this opportunity.
