Wilsgebrek

Defects of will relate to situations in which a party’s will has not been formed freely or properly upon entering into a contract or other juristic act. The principal defects of will under Dutch law are mistake, fraud, duress and undue influence. These defects render the juristic act voidable, enabling the aggrieved party to have the contract set aside.

The concept is significant in that it affords protection to parties who have acted under the influence of incorrect information, coercion or exploitation. Absent such protection, contracts concluded through improper influence would remain irrevocably binding. In practice, reliance on a defect of will is frequently invoked in consumer disputes, family matters and transactions in which one party occupied a position of dependence.

The court determines whether a defect of will has in fact occurred and whether the aggrieved party has raised the matter in good time. A successful plea results in annulment with retroactive effect.