When the business acquisition turns out differently: what warranties can and cannot fix

Corporate Law

3 June 2026

When the business acquisition turns out differently: what warranties can and cannot fix

Stelt u zich eens voor: u werkt al jaren met dezelfde zelfstandige. Hij stuurt facturen, factureert btw en heeft een eigen kvk-nummer. Toch krijgt u in 2026 ineens vragen van de Belastingdienst over de aard van uw samenwerking. Hoe heeft het zo ver kunnen komen?

Anyone who buys a business generally wants to actually receive what was promised during the run-up to the deal: the financial position, the administration, contracts, employment relationships, permits and everything that comes with it. That is precisely why warranties in a purchase agreement are so important. They give the buyer something to fall back on if it later turns out that reality was less rosy than the seller initially presented. At the same time, the ruling of the Overijssel District Court of 18 February 2026 (ECLI:NL:RBOVE:2026:889) shows that a disappointing acquisition does not necessarily mean that the purchase can actually be unwound.

What exactly was at issue?

This case concerned a sale and purchase of shares between two private limited companies (B.V.’s). In the purchase agreement, the sellers had given the buyer a series of customary warranties. These related, for example, to the financial results, the accuracy of the annual accounts, the terms of employment, the administration and pending proceedings. After the acquisition, it turned out that the facts presented did not match reality on several points.

The court took a fairly sober view of this. Where the buyer substantiated with figures and documents that the results were worse than warranted, or that certain information simply was not correct, the sellers had too little to put up against that. On several points, the court therefore ruled that the warranties had been breached by the sellers. That meant the sellers had not fulfilled their contractual obligations and were therefore liable for the damage suffered by the buyers.

Why the purchase was not unwound

You may wonder: if I was given an incorrect representation of matters, why can’t I simply unwind the transaction? The court draws an important distinction here. Breaching a warranty is something different from committing fraud or causing a mistake (dwaling) in the legal sense. Annulment for fraud requires deliberate deception. For a claim based on mistake, moreover, the legal basis for it must still hold up, unless the parties have contractually agreed otherwise.

And it was precisely that last point that was of great importance in this case. In the purchase agreement, the parties had explicitly stated that annulment and rescission were excluded, at least from the date of the notarial transfer of the shares. The parties had therefore agreed in advance themselves that the transaction could not simply be reopened afterwards. The court attached a great deal of weight to that.

In practice, that is a strong warning. Anyone who, during the acquisition phase, relies heavily on the possibility of coming back to the deal later can seriously misjudge the situation. If that route has been contractually closed off, often only a claim for damages remains.

What does this mean for entrepreneurs?

For entrepreneurs, this ruling is valuable above all because it shows how important the wording of the purchase agreement is. Not only the warranties themselves, but precisely also the provisions on what happens if those warranties turn out not to be correct, make the difference. If you, as a buyer, want more certainty, you need to think carefully in advance about whether you only want to be able to recover damages, or whether you also want to retain the real possibility of undoing the purchase.

For sellers, the opposite applies. Giving a warranty is not something you do “for form’s sake”. If a warranty is worded too categorically while reality is more nuanced or worse, you run the risk of being held to it later. In an SME transaction, where parties are often close to one another and the information balance can be skewed, that can quickly lead to disputes.

The ruling also shows that the court is not quick to accept a defence that the buyer should simply have investigated better. If you, as a seller, give a warranty, that carries significant weight. The buyer is entitled to rely on it. That is also what makes due diligence so important, but it does not release the seller from their own responsibility to be honest and complete.

We help entrepreneurs move forward

Especially in acquisitions, shareholder disputes and contractual discussions, it is important that you know where you stand legally. We think along with SME entrepreneurs in a way that is practical, clear and directly applicable. Not only to identify risks, but above all to get ahead of them, so that you can make decisions with confidence.

Are you working on an acquisition, a restructuring or a contract that raises more questions than answers? Please contact the corporate lawyers of The Legal Company via info@thelegalcompany.nl or 020-345 0152.

De afgelopen jaren stonden in het teken van de Wet VBAR, het wetsvoorstel dat een einde moest maken aan onduidelijkheid over de zzp’er. Het kabinet heeft delen van dat voorstel inmiddels geschrapt. Op het eerste gezicht is dat goed nieuws: minder regels, minder administratieve last. Maar in de praktijk blijven dezelfde toetsen overeind.

“De inhoud van de samenwerking is leidend, niet wat er op papier staat.”

De Belastingdienst handhaaft sinds 1 januari 2025 weer actief op schijnzelfstandigheid. En recente uitspraken van de Hoge Raad bevestigen dat rechters strikt toetsen of er sprake is van ondergeschiktheid en gezagsverhouding.

Voor uw praktijk betekent dit drie dingen. Een: leg de samenwerking duidelijk vast, met aandacht voor de inhoud. Twee: voorkom dat een zzp’er feitelijk werkt als werknemer. Drie: wees voorbereid op een controle, en weet hoe u de relatie kunt herzien als dat moet.

Heeft u vragen over uw concrete situatie? Wij sparren dagelijks met opdrachtgevers over hun zzp-relaties. Vraag een offerte op of bekijk onze Legal Safe abonnementen.