Claims under the Warranty & Indemnity insurance: Lessons learned from the first available Dutch legal case law

In 2025, for the first time, five court judgments were published addressing W&I‑related disputes. Taken together, these decisions offer the first real insight into how Dutch courts assess the interplay between the SPA, the policy wording and the claims process. The emerging case law to date highlights three core themes:

1. whether there has been a breach of a warranty under the SPA;
2. whether that breach has resulted in insured loss under the policy; and
3. whether the claim was notified in a timely and proper manner.

In this contribution, we outline the key insights from this first wave of Dutch W&I case law, from both an M&A and insurance law perspective. In doing so, we discuss the practical lessons that can be drawn for transaction documentation, due‑diligence scoping, policy design and claims handling. These cases provide the first concrete benchmarks for assessing potential W&I claims and underline the importance of embedding W&I awareness early in the deal process.

As a starter, the key messages that can be derived from this new wave of case law are:

• Breach: W&I insurance does not soften SPA thresholds.
• Loss remains the biggest hurdle; valuation evidence is crucial.
• Notice wording is interpreted strictly, formality matters.

Breach

The emerging W&I case law confirms that the SPA remains the primary reference point for determining whether a warranty has been breached and, therefore, whether a “Breach” exists for policy purposes. The existence of W&I insurance does not lower this threshold.

Information warranties do not turn general “business uncertainty” into a duty to disclose. Without specific SPA language, an obligation arises only where clear and concrete negative prospects exist; strategic uncertainties or ordinary commercial risks do not qualify. Furthermore, an Information Memorandum is considered a marketing tool and does not constitute a stand‑alone warranty unless expressly incorporated into the SPA.

For non‑knowledge‑qualified warranties, knowledge or conduct of individuals within the target may be attributed to the seller on the basis of prevailing societal norms on attribution (“maatschappelijke opvattingen”).

The “Fairly disclosed” exclusion is interpreted broadly. A limited set of documents can suffice for adequate disclosure, and courts place meaningful weight on the buyer’s duty to investigate disclosed information.

Practical takeaways – Breach

1. Even in W&I‑insured deals, the SPA warranty suite remains leading; insurance does not cure unclear or imprecise drafting.
2. If parties expect disclosure of broader “uncertainties”, this should ideally be reflected in the information warranties.
3. Consider attribution in practice, not only on paper; internal reporting lines and governance structures may be relevant.

Loss / Causation

Demonstrating a covered loss has appeared to be the most challenging element. Dutch courts do not presume loss once a breach is established. Buyers must show that the breach affected the economic outcome of the transaction. This analysis is inherently hypothetical and centres on the counterfactual: what would have occurred had the buyer known the relevant facts at the relevant time. The assessment is highly fact‑specific, depending on the deal’s structure and context, including SPA price‑adjustment mechanisms, “as is, where is” clauses, market conditions, negotiation dynamics and timing pressures.

Where fraud (bedrog) is present, the evidentiary threshold for buyers appears lower. Evidence of fraudulent conduct supports the inference that renegotiation or price adjustment would have occurred, strengthening the causal link between breach and loss.

Materiality statements in the SPA can reinforce the argument that specific warranties were price‑forming, making it more plausible that a breach would have altered the deal terms.

Practical takeaways – Loss/causation

1. Anticipate the counterfactual at the drafting stage. Consider upfront how a breach of certain warranties would realistically affect the deal. Explicitly record whether specific warranties are price‑forming and how they influenced valuation.
2. In disputes, substantiate the counterfactual with contemporaneous documentation and market context. Preserve valuation models, pricing discussions and decision‑making materials, as they may become crucial evidence.
3. Consider how fraud provisions affect liability caps and subrogation.

Claim Notice

W&I policies typically impose expiry periods per warranty category and require notification of all reasonably known facts within that period. New factual grounds introduced later may fall outside coverage. Broad or generic allegations do not preserve coverage for separate factual scenarios; each fact pattern must be identifiable from the notice itself.

So far, courts have attributed substantial importance to the policy notice requirements, while the potential corrective role of statutory insurance law (such as Article 7:941 Dutch Civil Code) remained untested so far in a W&I context.

Practical takeaways – claim notice

1. Treat the claim notice as a substantive pleading. Each factual basis for coverage should be clearly articulated in the notice itself.
2. Do not lose sight of the statutory backdrop. Statutory rules may remain relevant. For instance, Article 7:941 DCC may come into play in case of a debate about late or incomplete notice.

Wrap‑up

The initial Dutch W&I judgments highlight 3 core themes:

1. Breach;
2. Loss/causation; and
3. Timely notice.

Each assessed in light of the SPA, the policy wording and the transaction’s specific context. Although individual judgments do not always address all elements, together they illustrate the principal hurdles shaping the Dutch W&I claims landscape.

The overarching lesson is that W&I insurance reallocates risk but does not lower substantive thresholds. Outcomes are driven primarily by drafting decisions, disclosure processes, knowledge allocation and claims handling — not by the policy wording alone. Careful transaction drafting and disciplined claims management remain essential.

Interested in more? See our full publication (in Dutch): C.R.R. Dewindt & M.M. van Asch, “Claims onder de W&I-verzekering: van theorie naar rechtspraak”, TOP 2025/247 (issue 7), pp. 15–22.