Unrest in global trade: when can an existing contract be amended on the grounds of unforeseen circumstances?

The transport and logistics sector is currently under pressure. Companies are seeing their costs rise rapidly, partly due to higher wages, more expensive insurance and rising overheads. From 2026, a new lorry tax will also be introduced, putting further pressure on margins that are often already thin. US President Donald Trump's protectionist policy is also having a major impact on global logistics chains. Higher import tariffs on steel and cars, and the abolition of exemptions for small shipments, have not only led to higher costs, but also to delays and additional administrative burdens.

This can be problematic for (transport and logistics) companies that typically work with long-term contracts: agreements that seemed reasonable and feasible when the contract was concluded can become a heavy burden or even untenable due to changed market conditions. It is therefore understandable that these companies are wondering whether there are possibilities to amend existing contracts to compensate for these developments.

Dutch contract law applies the principle of pacta sunt servanda: agreements must be honoured. Even if an agreement turns out to be unfavourable in retrospect, the parties can in principle still be bound by it. An exception to this is the invocation of 'unforeseen circumstances' (Section 6:258 of the Dutch Civil Code). On this basis, a party may request the court to amend or (partially) dissolve a contract. However, this is only possible under (strict) conditions, which I will discuss below.

Article 6:258 of the Dutch Civil Code reads as follows (underlining added):

Article 258

1. At the request of one of the parties, the court may modify the consequences of an agreement or dissolve it in whole or in part on the grounds of unforeseen circumstances of such a nature that the other party cannot reasonably be expected to maintain the agreement unchanged. The modification or dissolution may be given retroactive effect.
2. A modification or dissolution shall not be pronounced insofar as the circumstances, by virtue of the nature of the agreement or prevailing opinions, are for the account of the party invoking them.

Below, we will go through the conditions set out in this article.

Unforeseen circumstances

It follows from paragraph 1 that there must be unforeseen circumstances. But what exactly are these? They must be circumstances that the parties did not take into account in any way when entering into the agreements. The decisive factor here is whether the parties had the circumstances in question in mind in any way during the contracting process and/or incorporated them in any way into the agreement.

Has a particular circumstance already been taken into account in the contract, for example through a price agreement or a specific force majeure clause? If so, you cannot invoke Article 6:258 of the Dutch Civil Code.

Maintenance of the contract cannot be expected

In addition to the existence of unforeseen circumstances, paragraph 1 also requires that, as a result of those circumstances, the parties cannot reasonably be expected to continue the agreement unchanged.

Here, it is necessary to consider what is reasonable: each case must be assessed individually to determine whether leaving the contract unchanged would be unreasonable in view of the unforeseen circumstances and the consequences thereof. Case law shows that judges are very cautious in this regard and that such reasonableness tests are rarely passed. There must be a truly unforeseen circumstance with such far-reaching consequences that leaving the contract unchanged would be unreasonable in that specific situation. An example of this would be a situation in which the unforeseen circumstance means that a party would be at risk of bankruptcy if the contract remained unchanged.

No circumstances that are at one's own risk

Paragraph 2 also states that there must be no circumstances which, by virtue of the nature of the agreement or generally accepted practice, are for the account of the party invoking Article 6:258 of the Civil Code.

The phrase 'by the nature of the agreement' refers to contracts in which certain risks or changes are inherent to the type of agreement or market and which should therefore be known to the parties in advance. Examples include contracts of a speculative nature, such as currency transactions.

'Generally accepted practice’ means that the requesting party itself may be held liable for the damage suffered, for example because it was negligent in taking measures to prevent the consequences of the unforeseen circumstances, or because the circumstances fell within its own sphere of risk.

When can an appeal to unforeseen circumstances be successful?

The above shows that the conditions for a successful appeal to unforeseen circumstances are strict. However, it is not impossible. Below are two examples.

In 2021, the Dutch Supreme Court ruled that tenants of commercial premises who were unable to generate any or hardly any turnover due to coronavirus measures could, in principle, invoke unforeseen circumstances in the case of lease agreements concluded before 15 March 2020. This could lead to an adjustment of the rent.[1]

Also in 2021, the preliminary relief judge in Rotterdam ruled that food company Plukon could not enforce its 2018 contract with Nippon CO2. Nippon had argued that it was facing extreme and unexpected price increases due to a combination of unforeseen circumstances: the coronavirus pandemic, scarce gas supplies in Europe, measures against climate change, a shortage of energy due to limited wind and hydroelectric power production, reduced coal use and the inability of suppliers such as Russia to meet the demand for gas. The court therefore ruled that an appeal to unforeseen circumstances could not be ruled out in advance and dismissed Plukon's claim.[2]

Conclusion

In short: contracts must in principle be fulfilled, even in the event of market fluctuations. Exceptions due to unforeseen circumstances are possible, but for this to be the case, a party must be able to substantiate that the circumstances are indeed unforeseen and far-reaching. It is therefore worthwhile to draw up contracts properly in advance so that they are more resistant to economic and geopolitical surprises.

Do you have any questions about the above, your contractual relationships or other legal matters? Ploum's transport and logistics team has extensive experience with legal issues relating to this sector and will be happy to assist you.