Does the principal have a right of suspension during execution or not?

This year, the Supreme Court issued an interesting ruling on the question of whether the client, who discovers during performance (i.e., even before delivery) that the contractor is doing faulty work, may suspend payment of invoices.

The answer to this question seems to be a resounding yes. After all, the law has a rule that when one party fails to perform, the other party may suspend its payment obligation. But one could also argue otherwise. Namely, that the contractor only has to perform at the time of completion. Only then should the work be sound. Until delivery there is no claimable performance and let that be precisely a condition for a successful reliance (by the client) on the right of suspension.

Viewed this way, if there is faulty work during execution, the principal is therefore not allowed to suspend payment of invoices. As a client, you will heartily disagree with this view. However, in 2012 the Amsterdam Court of Appeal seemed to actually confirm this view. This meant a far-reaching weakening of the client's position.

That this was a far-reaching decision of the Court of Appeals, you will understand. Now, there was much to criticize in this decision. Reason for appeal.

Indeed, the Supreme Court recently reversed the Court of Appeal and formulated a clear rule: reliance on the right to suspend performance by the client is also possible when the work has not yet been completed. The Supreme Court considered that the purpose of the right of suspension is to put pressure on the contractor (so that he will still repair the defects) and to provide the client with security in case the contractor does not do so (by withholding payment).

This brings us back to the generally accepted rule that you must do sound work, even during performance, in order to claim payment.