A Lawyer's Toolbox (part 2)
June 16, 2026Author: Roeland Zwanikken
A lawyer’s toolbox (part 2): when to switch to substitute 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.
A lawyer’s toolbox (part 2): when to switch to substitute damages
Sometimes, enforcing performance is not what you want.
In the previous article, we saw that claiming performance is often the strongest legal route. But what if you no longer trust the other party to do the job properly? Or simply do not want to continue working with them?
That is where substitute damages come in.
Under Article 6:87 Civil Code, you can convert the original obligation into a claim for damages instead of performance. In practical terms, this means you stop waiting for the other party to perform and arrange a solution yourself—at their expense.
A simple example makes this clear.
Imagine a contractor who is renovating your bathroom but is clearly failing to deliver. Rather than continuing the discussion or giving endless second chances, you can switch strategy. You hire a new contractor to finish the work and pass on the costs to the original contractor. That is substitute damages in action.
When does this make sense?
This route is particularly useful in situations involving practical or operational performance, such as:
- construction or renovation projects,
- ICT contracts,
- service agreements.
In these cases, continuing with a non-performing party often leads to more delay, frustration and risk.
How does it work?
The law sets a few conditions:
- the debtor must be in default, and
- you must give a written notice of conversion stating that you are claiming damages instead of performance.
Once that notice is given, the legal landscape changes: the right to perform is effectively taken away from the defaulting party.
Why is this a powerful tool?
Claiming substitute damages offers several practical advantages:
- You take back control and avoid further dependence on an unreliable counterparty;
- The other party can no longer “fix” the situation at a late stage;
- You can deny the original contractor access to your property and bring in a replacement without legal risk;
- You do not need to initiate termination proceedings;
- The claim can often be set off against amounts you owe the other party.
It is important to note that substitute damages relates to the transaction itself (e.g. the cost of completing the bathroom), not to additional or consequential losses. Those can still be claimed separately under Article 6:74 Civil Code.
Practical rule of thumb
If you no longer want to continue with a non-performing party:
- claim substitute damages, and
- add a claim for additional damages where relevant.
In practice, this approach is often decisive in projects where time, control and certainty matter more than preserving the original contractual relationship.
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, June 15, 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.
A lawyer’s toolbox (part 2): when to switch to substitute damages
Sometimes, enforcing performance is not what you want.
In the previous article, we saw that claiming performance is often the strongest legal route. But what if you no longer trust the other party to do the job properly? Or simply do not want to continue working with them?
That is where substitute damages come in.
Under Article 6:87 Civil Code, you can convert the original obligation into a claim for damages instead of performance. In practical terms, this means you stop waiting for the other party to perform and arrange a solution yourself—at their expense.
A simple example makes this clear.
Imagine a contractor who is renovating your bathroom but is clearly failing to deliver. Rather than continuing the discussion or giving endless second chances, you can switch strategy. You hire a new contractor to finish the work and pass on the costs to the original contractor. That is substitute damages in action.
When does this make sense?
This route is particularly useful in situations involving practical or operational performance, such as:
- construction or renovation projects,
- ICT contracts,
- service agreements.
In these cases, continuing with a non-performing party often leads to more delay, frustration and risk.
How does it work?
The law sets a few conditions:
- the debtor must be in default, and
- you must give a written notice of conversion stating that you are claiming damages instead of performance.
Once that notice is given, the legal landscape changes: the right to perform is effectively taken away from the defaulting party.
Why is this a powerful tool?
Claiming substitute damages offers several practical advantages:
- You take back control and avoid further dependence on an unreliable counterparty;
- The other party can no longer “fix” the situation at a late stage;
- You can deny the original contractor access to your property and bring in a replacement without legal risk;
- You do not need to initiate termination proceedings;
- The claim can often be set off against amounts you owe the other party.
It is important to note that substitute damages relates to the transaction itself (e.g. the cost of completing the bathroom), not to additional or consequential losses. Those can still be claimed separately under Article 6:74 Civil Code.
Practical rule of thumb
If you no longer want to continue with a non-performing party:
- claim substitute damages, and
- add a claim for additional damages where relevant.
In practice, this approach is often decisive in projects where time, control and certainty matter more than preserving the original contractual relationship.
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, June 15, 2026
Roeland Zwanikken
Partner of BZSE Attorneys at Law/Tax Lawyers
More articles →