A Lawyer’s Toolbox (part 1)
May 18, 2026Author: Roeland Zwanikken
A Lawyer’s Toolbox (part 1): why smart creditors claim performance before damages
A lawyer, much like a carpenter, works with a toolbox. Selecting the right tool at the right moment is essential to achieving the best possible outcome. Choosing the wrong approach, or using it at the wrong time, can be counterproductive and unnecessarily increase costs for the client.
That is why it is often sensible to seek legal advice before entering into a transaction or deal.
In a series of short articles, I will highlight practical examples of approaches that tend to work well, and others that may prove less effective or unnecessarily complex.
I. A lawyer’s toolbox (I): Performance vs. damages: choosing the strongest legal route
When a counterparty fails to meet its obligations, two main legal routes are available: you can seek performance (i.e. enforcement of the agreed obligation), or you can claim damages.
From a strategic and recovery perspective, that distinction matters.
Under Article 3:296 Civil Code, the court will, as a starting point, order the debtor to perform its obligations. The principle is straightforward: agreements must be honored. This makes a claim for performance a direct and enforceable route to recovery.
By contrast, a claim for damages under Article 6:74 Civil Code is inherently more uncertain. It requires proof of loss, causation and (in most cases) default, and it opens the door to a range of defenses that may reduce or even eliminate recovery.
A simple example illustrates the difference. If a tenant vacates a property overnight and leaves unpaid rent behind, a claim for performance allows you to pursue payment of a defined and outstanding amount. This is typically more straightforward/effective than reconstructing and substantiating a claim for damages.
An important practical advantage is that a claim for performance does not require prior default. This avoids procedural delays and limits the scope for technical defenses. In time-sensitive or recovery-driven situations, that can be decisive.
Damages, by contrast, are essentially compensatory. They may be appropriate as a supplement, particularly where additional loss (such as delay or consequential damage) can be demonstrated. However, as a primary route, they are more exposed to:
- contractual limitations or exclusions of liability,
- arguments of contributory fault,
- discussions on mitigation of loss,
- and disputes over causation and quantification.
From a risk management perspective, claiming damages are often a less predictable and less efficient recovery tool.
Practical rule of thumb Where a clear obligation exists (in particular payment obligations), the preferred strategy is to:
- Primarily claim performance, and
- Additionally, claim damages for any proven supplementary loss.
This dual-track approach maximizes enforceability while preserving upside.
In practice - particularly in rental, financing and security enforcement matters - the choice between performance and damages often determines whether recovery is swift and effective, or delayed and contested.
Ultimately, effective legal strategy is about more than rights and remedies, it is about timing, positioning and selecting the right combination of tools to achieve the best outcome.
Disclaimer
This blog provides general information and is not intended as legal advice. BZSE strongly recommends seeking personalized legal counsel based on your specific circumstances before making any decisions or taking action.
Sint Maarten, May 14, 2026
Roeland Zwanikken
Partner of BZSE Attorneys at Law/Tax Lawyers
More articles →
A lawyer, much like a carpenter, works with a toolbox. Selecting the right tool at the right moment is essential to achieving the best possible outcome. Choosing the wrong approach, or using it at the wrong time, can be counterproductive and unnecessarily increase costs for the client.
That is why it is often sensible to seek legal advice before entering into a transaction or deal.
In a series of short articles, I will highlight practical examples of approaches that tend to work well, and others that may prove less effective or unnecessarily complex.
I. A lawyer’s toolbox (I): Performance vs. damages: choosing the strongest legal route
When a counterparty fails to meet its obligations, two main legal routes are available: you can seek performance (i.e. enforcement of the agreed obligation), or you can claim damages.
From a strategic and recovery perspective, that distinction matters.
Under Article 3:296 Civil Code, the court will, as a starting point, order the debtor to perform its obligations. The principle is straightforward: agreements must be honored. This makes a claim for performance a direct and enforceable route to recovery.
By contrast, a claim for damages under Article 6:74 Civil Code is inherently more uncertain. It requires proof of loss, causation and (in most cases) default, and it opens the door to a range of defenses that may reduce or even eliminate recovery.
A simple example illustrates the difference. If a tenant vacates a property overnight and leaves unpaid rent behind, a claim for performance allows you to pursue payment of a defined and outstanding amount. This is typically more straightforward/effective than reconstructing and substantiating a claim for damages.
An important practical advantage is that a claim for performance does not require prior default. This avoids procedural delays and limits the scope for technical defenses. In time-sensitive or recovery-driven situations, that can be decisive.
Damages, by contrast, are essentially compensatory. They may be appropriate as a supplement, particularly where additional loss (such as delay or consequential damage) can be demonstrated. However, as a primary route, they are more exposed to:
- contractual limitations or exclusions of liability,
- arguments of contributory fault,
- discussions on mitigation of loss,
- and disputes over causation and quantification.
From a risk management perspective, claiming damages are often a less predictable and less efficient recovery tool.
Practical rule of thumb Where a clear obligation exists (in particular payment obligations), the preferred strategy is to:
- Primarily claim performance, and
- Additionally, claim damages for any proven supplementary loss.
This dual-track approach maximizes enforceability while preserving upside.
In practice - particularly in rental, financing and security enforcement matters - the choice between performance and damages often determines whether recovery is swift and effective, or delayed and contested.
Ultimately, effective legal strategy is about more than rights and remedies, it is about timing, positioning and selecting the right combination of tools to achieve the best outcome.
Disclaimer
This blog provides general information and is not intended as legal advice. BZSE strongly recommends seeking personalized legal counsel based on your specific circumstances before making any decisions or taking action.
Sint Maarten, May 14, 2026
Roeland Zwanikken
Partner of BZSE Attorneys at Law/Tax Lawyers
More articles →