Default
Tags: default, ingebrekestelling, notice of default, verzuim.
Default is a situation in which a debtor can find himself if he or she fails to fulfil his obligations. If the debtor is in default, the creditor has a number of legal options, for example, the agreement can be dissolved or compensation can be claimed. The default can occur in two ways. By notice of default or by law.
Notice of Default
A notice of default is a letter of formal notice to the debtor whereby he is given a reasonable term to still fulfil his contractual obligations. If the debtor fails to fulfil his contractual obligations within this reasonable period, the debtor is in default.
No Notice of Default is Required
In some legal cases, a notice of default is not required. The most important case is when a fatal deadline has been agreed. After the expiry of this deadline, the debtor is automatically in default and therefore no notice of default is required.
However, when contracting for IT projects, a fatal deadline is not often adopted. One of the characteristics of IT projects is that in most cases they do not meet the given deadline. With this in mind, the judge will not often judge that a deadline is fatal, at least for IT projects.
So it is wise – especially when the agreement concerns an IT project – to send it even if you are not sure that you have to send a notice of default. In that case, the debtor is in default anyway and further action can be taken after the commencement of the default.
If you would like legal advice about default, please call or email lawyer Wouter Dammers!
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