Contractual Waiver Of Modification Rights In Share Transactions And Directors’ Liability

Background

Two holding companies each held 50% of the shares in a joint holding structure controlling a mortgage advice and franchise business. In 2022, one shareholder sold 10% of its stake to the other for EUR 1.8 million. The notarial deed of transfer contained a disclosure warranty and a waiver clause under which the parties waived the right to rescind or set aside the underlying purchase agreement. A separate shareholders' agreement contained a penalty clause and an arbitration clause.

When relations deteriorated, the seller claimed payment of the outstanding purchase price and management fees. The buyer counterclaimed for: (i) a judicial price adjustment under Article 6:230(2) DCC on grounds of mistake; (ii) termination of the management agreement; and (iii) a declaration of personal liability of the seller's director.

Central question: Does the waiver clause bar an Article 6:230(2) claim?

The court interpreted “the agreement underlying the transfer” as covering the sale and purchase agreement (SPA), not merely the proprietary act of delivery. A narrower reading would have rendered the clause meaningless, since annulment of the SPA could still unwind the transfer.

The pivotal legal finding is that Article 6:230(2) DCC has an accessory nature: the power to modify a contract exists only where a right to set aside that contract also exists. Because the buyer had contractually waived the right to annul on grounds of mistake, no basis remained for a judicial price adjustment. The claim was dismissed.

Drafting implications

The annotation highlights that a broad interpretation is risky. A waiver clause mentioning only annulment and rescission leaves room for argument that Article 6:230(2) falls outside its scope – particularly given the Haviltex standard, which ties contractual meaning to the parties' mutual intent.

Best practice

Draft the waiver clause to expressly exclude:

• The right to set aside the agreement (annulment/rescission); and
• The right to claim amendment of the contract's consequences under Article 6:230(2) DCC.

An explicit reference removes uncertainty, especially in contracts between professionally acting parties (cf. Supreme Court, 5 April 2013, ECLI:NL:HR:2013:BY8101).

Limits of waiver clauses

Where the ground for error amounts to fraud under Article 3:44(3) DCC, a contractual exclusion of annulment may be void on grounds of public policy (Article 3:40 DCC). Similarly, where one party had exclusive access to information, reliance on a waiver clause may be unacceptable under the reasonableness and fairness standard of Article 6:248(2) DCC.

Information warranties between co-shareholders

The court dismissed the buyer's reliance on the information warranty. As a 50% shareholder and co-director, the buyer had equal access to the relevant information. Information warranties within the same information circle carry limited weight unless tailored to risks genuinely beyond one party's reach.

Set-off and arbitration

The buyer sought to set off penalty claims under the shareholders' agreement against the seller's payment claims. The court refused. Under Article 6:127(2) DCC, set-off requires the counterclaim to be sufficiently established. Since jurisdiction over the penalty claims lay exclusively with the arbitral tribunal, the court could not rule on their existence or extent.

A legitimate defence was thus procedurally blocked by the parties' own choice of forum. Where related agreements have different dispute resolution mechanisms, set-off rights must be explicitly addressed to avoid this deadlock.

Directors' personal liability

The personal liability claim against the seller's director was dismissed. Under established Dutch case law (Zandvliet/ING), personal liability requires serious personal fault. The director's refusal to pay reflected a substantive legal position rather than wilful disregard of the company's obligations. Non-payment alone – even in an escalating conflict – does not suffice to pierce the corporate veil.

Key takeaways for acquisition practice

Waiver clauses must go further: Explicitly exclude Article 6:230(2) in addition to annulment and rescission to foreclose any judicial price adjustment.

Information warranties need specificity: In co-shareholder transactions, generic disclosure warranties add little; the buyer must identify precisely which information was outside its reach.

Set-off across forums: Where related agreements carry an arbitration clause, contractually regulate set-off rights or exclude them outside the designated forum.

Directors' liability is exceptional: Even persistent non-payment does not automatically trigger personal liability – the threshold of serious personal fault remains high.

District Court The Hague, 04 March 2026,ECLI:NL:RBDHA:2026:4945

This annotation was written for HERO and was published on their website (HERO 2026 / N-018).