If a party successfully invokes error, the court may, instead of annulling the agreement, modify its consequences in order to eliminate the disadvantage. The basic principle here is that the erring party must be placed in the situation in which he would have been if he had not made the error. This means that a comparison must be made between the actual situation – in which a contract was concluded under the influence of an incorrect representation of the facts – and the hypothetical situation in which the correct information had been known. This also applies to a person who made an error when purchasing a house. In that case too, if the agreement is upheld, the purchaser must be placed in the situation they would have been in without the error. The Dutch Supreme Court confirmed in its ruling of 6 February 2026 that this principle does not change if the house subsequently increases in value.

The facts

The case before the court of appeal concerned the purchase of a house opposite an agricultural business for which irrevocable permits had already been granted for the construction of a large pig barn. The sellers of the house had previously objected to those permits, but the buyers were not aware of this when they entered into the purchase agreement.

The court of appeal found that the sellers had breached their notification obligation by failing to mention the permits that had been granted. As a result, the buyers had an incorrect understanding of the situation when they entered into the agreement. The court of appeal also considered it plausible that the buyers would have purchased the house if they had known about the permits, but at a lower price.

In assessing the requested amendment to the agreement on the basis of Article 6:230(2) of the Dutch Civil Code, the court of appeal took as its starting point that the buyers should be placed in the situation they would have been in without the error. This requires a comparison between the actual situation and the hypothetical situation in which the correct information had been known. In that hypothetical scenario, the sale would have been concluded at a lower purchase price.

Nevertheless, the court of appeal rejected the claim. The court considered it decisive that the mega stable had ultimately not been realised and that the value of the property had since increased. According to the court, the buyers therefore no longer suffered any disadvantage from maintaining the agreement.

The Supreme Court's ruling

The Supreme Court made it clear that the ruling of the court of appeal was not consistent with the court of appeal's own principle.

In the hypothetical case that the buyers had not erred and had purchased the property at a lower price, they would have benefited from the increase in value resulting from the fact that the mega stable was ultimately not built. The only conclusion that can be drawn from this is that there is a disadvantage within the meaning of Article 6:230(2) of the Dutch Civil Code.

According to the court of appeal, the unlawful act (breach of the notification obligation) did not result in any change to the detriment of the buyers because the mega stable would not be built, and the buyers therefore paid at the time for what they now have in their possession. According to the Supreme Court, the Court of Appeal thus disregarded the principle that, in the hypothetical situation in which the sellers had complied with their notification obligation, the buyers would have purchased the property at a lower price (after which they would have benefited from the subsequent increase in value due to the fact that the mega stable was ultimately not built).

The buyers did therefore suffer damage because, at the time, when it was not known that the mega stable would not be built and the permits for the mega stable had been granted without the buyers being informed of this by the sellers, they paid too much for the property.

Lesen Sie das vollständige Urteil des Obersten Gerichtshofs here..

Conclusion

This ruling makes it clear (once again) that if a buyer would have negotiated a lower purchase price had they been correctly informed, the disadvantage consists of the difference between that hypothetical price (in the absence of error) and the price actually paid. The fact that it later transpires that a risk such as the construction of a mega stable did not materialise or that – as explained above – the property has even increased in value does not alter that principle.

Do you have any questions about error, disclosure obligations in purchase agreements, liability or compensation in real estate transactions? Please feel free to contact our contract law experts at SPEE advocaten & mediation. We are happy to assist you.