A liability lawyer in the Netherlands advises on claims for damages under Dutch law. Liability can be contractual, when a party fails to perform an obligation and must compensate the resulting damage unless the failure cannot be attributed to it (Article 6:74 Dutch Civil Code, DCC), or non-contractual, for example after a tort (onrechtmatige daad, Article 6:162 DCC).
We act for businesses that have suffered damage and for businesses facing a claim. Our liability lawyers handle contractual liability for breach of contract, tort claims, professional liability for errors by advisers and other professionals (such as accountants, bailiffs, notaries, doctors and lawyers), liability for employees, buildings and hazardous substances, product liability, and the insurance questions that come with them: is there cover, and how large is the damage? Our liability work builds on our practice in contract law, the law of obligations and litigation in the Netherlands.
Below, we explain the main rules of Dutch liability law that we apply in our work, with links to the current text of each provision.
What is the difference between contractual and non-contractual liability?
Contractual liability arises when a party fails to perform an obligation, for example under a contract. The debtor must compensate the creditor’s damage, unless the failure cannot be attributed to it (Article 6:74(1) DCC). A failure cannot be attributed to the debtor if it is not due to its fault and is not for its account under the law, a juristic act or generally accepted views (Article 6:75 DCC). A debtor that uses other persons to perform is liable for their conduct as for its own (Article 6:76 DCC).
Non-contractual liability does not depend on a contract. The main ground is the tort of Article 6:162 DCC. The law also contains forms of strict liability, for example for employees, buildings, hazardous substances and defective products (see below). The same facts can give rise to both types of liability.
When is a party liable for breach of contract?
Insofar as performance is not already permanently impossible, a claim for damages requires the debtor to be in default (verzuim) (Article 6:74(2) DCC). Default arises when the debtor is given notice in writing with a reasonable period for performance, and performance does not follow within that period (Article 6:82(1) DCC). In some cases default arises without notice, for example when a deadline for performance expires, unless the deadline has a different purpose, or when the debtor announces that it will not perform (Article 6:83 DCC).
A creditor that receives a defective performance must complain in time: it can no longer rely on the defect if it does not protest within a reasonable time after discovering it, or after it reasonably should have discovered it (Article 6:89 DCC). Besides damages, a failure to perform can entitle the creditor to dissolve the contract, unless the failure, given its special nature or minor importance, does not justify dissolution; insofar as performance is not permanently or temporarily impossible, the right to dissolve arises only once the debtor is in default (Article 6:265 DCC). Dissolution takes place by written statement or by the court (Article 6:267 DCC).
When is a party liable in tort under Dutch law?
A person who commits a tort against another that can be attributed to them must compensate the damage the other suffers as a result (Article 6:162(1) DCC). A tort is an infringement of a right, an act or omission in breach of a statutory duty, or conduct contrary to what is proper in society according to unwritten law, unless there is a justification (Article 6:162(2)). The tort can be attributed to the person who committed it if it is due to their fault or to a cause for which they are accountable by law or generally accepted views (Article 6:162(3)).
There is no obligation to pay damages if the standard that was breached does not serve to protect against the damage as suffered by the injured party (Article 6:163 DCC). Only damage that is connected to the event in such a way that it can be attributed to the liable person as a result of that event qualifies for compensation (Article 6:98 DCC).
Which forms of strict liability exist in the Netherlands?
In several situations, the law makes a person liable without proof of personal fault:
- Employees and other subordinates: the employer is liable for damage caused to a third party by a subordinate’s fault, if the risk of the fault was increased by the assignment and the employer had control over the conduct in question (Article 6:170(1) DCC). If a non-subordinate who carries out work for a business as part of that business is liable towards a third party for a fault in that work, the business is also liable towards that third party (Article 6:171 DCC).
- Buildings and premises: the possessor of a building or structure that does not meet the requirements that may be set in the circumstances, and thereby poses a danger to persons or property, is liable when that danger materialises (Article 6:174(1) DCC). The person registered as owner in the public registers is presumed to be the possessor (Article 6:174(5)).
- Dangerous movable property: the possessor of a movable item known to pose a special danger if it does not meet the requirements is liable when that danger materialises (Article 6:173 DCC).
- Hazardous substances: a business that uses or holds a substance known to pose a special danger of a serious nature is liable when that danger materialises (Article 6:175 DCC).
- Defective products: the producer is liable for damage caused by a defect in its product, subject to the defences in the law (Article 6:185 DCC). This regime covers damage through death or personal injury, and damage to another item that is ordinarily intended for private use and was mainly used privately, with a deductible of €500 (Article 6:190(1) DCC). Damage in the relationship between a manufacturer and its importer or distributor is therefore generally a matter of their contract. More on this regime: product liability in the Netherlands.
In the cases of Articles 6:173 and 6:174 DCC, there is no liability if there would have been no liability under the fault-based rules had the possessor known of the danger at the time it arose.
When is a professional liable for errors?
A professional who performs services under a contract for services (overeenkomst van opdracht) must observe the care of a good service provider (Article 7:401 DCC). The Supreme Court has held that the standard is the care that may be expected of a reasonably competent and reasonably acting specialist (Supreme Court 9 November 1990, ECLI:NL:HR:1990:AC1103, para. 3.7, a case about a medical specialist). In practice, claims against other professionals, such as accountants, notaries, bailiffs and lawyers, are assessed against a comparable standard: the care of a reasonably competent and reasonably acting colleague in the same circumstances. Depending on the circumstances, this duty of care can also require a professional to inform or warn the client about the risks of a decision the client has to take.
Which damages can be claimed under Dutch liability law?
Damage consists of financial loss and other harm, the latter insofar as the law gives a right to compensation (Article 6:95 DCC). Financial loss includes both losses suffered and profits lost, as well as reasonable costs to prevent or limit damage, to establish damage and liability, and to obtain payment out of court (Article 6:96(1)-(2) DCC). The last two categories are not compensated separately insofar as the rules on legal costs apply in proceedings (Article 6:96(3)). Non-financial damage is compensated only in the cases listed in Article 6:106 DCC, such as personal injury or damage to someone’s honour or reputation.
If the damage is partly due to circumstances attributable to the injured party, the compensation is reduced in proportion to each party’s contribution, unless fairness requires a different division because of the different seriousness of the errors or other circumstances (Article 6:101 DCC). The court can also reduce a statutory obligation to pay damages if full compensation would lead to clearly unacceptable consequences in the circumstances, but not below the amount for which the debtor is or had to be insured (Article 6:109 DCC).
Can liability be limited or excluded by contract?
In principle, yes. Businesses often limit liability in their contract or general terms and conditions. A party cannot rely on such a clause, however, insofar as that would be unacceptable by standards of reasonableness and fairness in the circumstances (Article 6:248(2) DCC). A clause in general terms and conditions can be annulled if it is unreasonably onerous (Article 6:233 DCC). This ground is not available to a legal entity referred to in Article 2:360 DCC that had last published its annual accounts when the contract was concluded (or to which Article 2:403(1) was then last applied), to a party with fifty or more people working for it at that time, or to a party that itself repeatedly uses the same or almost the same general terms and conditions (Article 6:235(1) and (3) DCC). Moreover, that section of the Code does not apply between businesses that are not both established in the Netherlands (Article 6:247(2) DCC); if Dutch law governs the contract, the test of Article 6:248(2) DCC then remains. A clause that is contrary to public policy or morality is void (Article 3:40(1) DCC).
What role does liability insurance play?
Many liability claims are in practice handled by the liable party’s insurer. The insured must report an insured event to the insurer as soon as reasonably possible after becoming aware of it, and provide relevant information and documents (Article 7:941 DCC). If the insurer has been notified, a person who suffered damage through death or personal injury can require that the insurance payment for that damage is paid directly to them (Article 7:954(1) DCC). We assist businesses in claims against liability insurers and in coverage questions with their own insurer.
How long do you have to bring a liability claim in the Netherlands?
A claim for damages becomes time-barred five years after the start of the day following the day on which the injured party became aware of both the damage and the person liable for it, and in any event twenty years after the event that caused the damage (Article 3:310(1) DCC). Longer periods apply to damage caused by pollution, by hazardous substances within the meaning of Article 6:175 DCC or by certain soil movements (Article 3:310(2)), and for personal injury and death only the five-year period applies (Article 3:310(5)).
The limitation period of a claim for performance can be interrupted by a written demand or a written notice in which the creditor unequivocally reserves its right to performance (Article 3:317(1) DCC). The Supreme Court has accepted that this also applies to claims for payment of damages, in a case about a written notice sent by a representative organisation on behalf of injured parties (Supreme Court 28 March 2014, ECLI:NL:HR:2014:766). After interruption (other than by a claim in court that is granted), a new period starts the next day, equal to the original period but not longer than five years; the claim never becomes time-barred earlier than it would have without the interruption (Article 3:319(1)-(2) DCC).
How can our liability lawyers assist you?
We assess whether there is a basis for liability and how strong the evidence is, calculate or test the damage, send the notice of liability, negotiate with the other party and its insurer, and conduct proceedings if no settlement is reached. If you are being held liable, we review the claim, any limitation of liability and your insurance cover.
Frequently asked questions about liability lawyers in the Netherlands
What does a liability lawyer do in the Netherlands?
A liability lawyer assesses whether another party is liable for damage, or whether a claim against you is well-founded, under Dutch law. This covers breach of contract (Article 6:74 DCC), tort (Article 6:162 DCC), strict liability and professional liability, and includes negotiations with insurers and court proceedings.
What is the difference between breach of contract and tort under Dutch law?
Breach of contract is a failure to perform an obligation between the parties, which leads to liability unless the failure cannot be attributed to the debtor (Articles 6:74 and 6:75 DCC). A tort is an unlawful act against another person, such as the infringement of a right or a breach of a statutory duty or of what is proper in society (Article 6:162 DCC). No contract is required for tort.
Who is liable for an accident caused by a defective building or premises?
In principle, the possessor of the building or structure, if it does not meet the requirements that may be set in the circumstances and the danger materialises (Article 6:174(1) DCC). The registered owner is presumed to be the possessor (Article 6:174(5)). The possessor is not liable if there would have been no liability had it known of the danger when it arose.
Can I claim directly from the liable party’s insurer?
For damage caused by death or personal injury, the injured party can require that the insurance payment for that damage is paid directly to them once the insurer has been notified (Article 7:954 DCC). For other damage, the Civil Code contains no such general rule, and the claim is normally made against the liable party, who then claims cover from its insurer.
How long do I have to claim damages in the Netherlands?
In most cases five years from the start of the day after you became aware of both the damage and the person liable, and in any event twenty years after the event that caused the damage (Article 3:310(1) DCC). A written demand that unequivocally reserves your right can interrupt the period (Article 3:317 DCC).
Primary sources
- Dutch Civil Code, Book 3: Articles 3:40, 3:310, 3:317 and 3:319
- Dutch Civil Code, Book 6: Articles 6:74, 6:75, 6:76, 6:82, 6:83, 6:89, 6:95, 6:96, 6:98, 6:101, 6:106, 6:109, 6:162, 6:163, 6:170, 6:171, 6:173, 6:174, 6:175, 6:185, 6:190, 6:233, 6:247, 6:248, 6:265 and 6:267
- Dutch Civil Code, Book 7: Articles 7:401, 7:941 and 7:954
- Supreme Court 9 November 1990, ECLI:NL:HR:1990:AC1103 (standard of care of a reasonably competent and reasonably acting specialist)
- Supreme Court 28 March 2014, ECLI:NL:HR:2014:766 (interruption of limitation of claims for damages under Article 3:317(1) DCC)
Please contact our liability lawyers to discuss your matter.
