Are you an entrepreneur with business partners in the Netherlands and have you suffered financial damage as a result of a culpable violation of the law? Claims for damages under Dutch law differ from the Common law system. The Dutch law on damages regulates whether and to what extent you can assert claims. Is there an unjustified claim against you in the Netherlands or do you have difficulties contacting the Dutch counterparty or does the contracting party refuse to talk to you in order to reach an out-of-court solution? The contract law specialists at our Dutch law firm can take care of the enforcement of your interests in the Netherlands on your behalf.
Breach of contract in the Netherlands
If a debtor fails to meet his obligations and the non-performance is attributable to that debtor, the creditor may claim damages. Under Dutch law, damage refers to the actual damage caused by the non-performance of a contractual obligation (or an unlawful act, e.g. a tort).
Compensation under Dutch law
As a rule, damages must be paid in cash. In some cases, however, damages can be paid in kind or in the form of benefits in kind, if you as the injured party agree. If the liable person, after the court has approved that the damage can also be settled in kind, for example, does not pay the compensation within a reasonable period of time, the injured party can still assert his right to monetary compensation. According to Dutch law, damages that are not compensated in money are only granted if the injured party so requests, and it is at the discretion of the court to grant this request.
Profit foregone under Dutch law
Under Dutch law, financial losses can include both financial losses and lost profits (Article 6:96, paragraph 1 of the Dutch Civil Code). Lost profits include all pecuniary advantages that were not part of the assets of the injured party at the time of the damaging event, but which would have accrued to the injured party without the damaging event occurring. In this sense, no already existing assets are reduced or withdrawn, the injuring party in principle “only” thwarts the possibility of an increase in the assets of the injured party.
Level of damages in the Netherlands
Article 6:96(2) of the Dutch Civil Code defines three categories of costs that can be claimed as damages in the Netherlands:
- reasonable costs for the prevention or reduction of damages which are to be expected due to the liable event;
- reasonable costs for assessing the nature and extent of the damage and liability;
- reasonable costs for obtaining an out-of-court settlement;
The level of damages to be expected depends on various factors of the individual case. As a general rule, however, it can be said that the amount of damages can be calculated from the difference between the assets of the injured party without the damage incurred and the assets after the damage occurred. A concrete calculation of the damage can of course only be calculated if the damage can be specified in concrete figures.
Determination of damages under Dutch law
Also under Dutch law, the basic consideration in compensation matters is to put the injured party in the situation he would have been in if the event causing the damage had not occurred. It follows that claims for damages can only be asserted for damage that has actually occurred. As is well known, exceptions confirm the rule and here too there is an exception. Under certain circumstances, the damage can also be assessed according to objective criteria, irrespective of whether the injured party actually suffered the damage.
Do you, as an entrepreneur, face a claim for damages in the Netherlands or would you like to claim damages that you have suffered through a company based in the Netherlands? Please feel free to contact the English-speaking team of the Dutch law firm MAAK Advocaten in Amsterdam without hesitation. We can examine your claims and enforce them on your behalf (in and out of court).
Profit of the party liable under Dutch law
Under Dutch civil law, the profit made by the liable party as a result of this failure to perform the contract (or as a result of an unlawful act) is not part of the loss suffered by the victim. However, this profit (or advantage) can, under certain circumstances, be claimed by the innocent party.
Article 6: 104 of the Dutch Civil Code provides that the court may determine the profit from this act if a person who is liable to another person as a result of a wrongful act or default in the performance of an obligation to another person can draw the profit from this default action damages according to the sum of this profit or part thereof. To apply this rule, the claimant must prove that he has actually suffered damage, but he does not have to prove the extent of that damage. This rule is mainly applied to infringements of intellectual property rights.
Estimation of damage under Dutch law and the assessment of damage
The court may reduce the obligation to pay damages on grounds of reasonableness. If the extent of the damage cannot be determined precisely, the Dutch court will estimate the amount of the damage. Article 6:97 of the Dutch Civil Code provides for this:
The court shall assess the extent of the damage in such a way as to best reflect the nature of the damage caused. If the extent of the damage cannot be assessed accurately, it shall estimate it.
Dutch lawyer specialised in claims for damages
Do you have any questions about claims for damages under Dutch law, Dutch contract law in general, or do you need specific legal advice in Holland on the subject of compensation claims under Dutch law? Our experienced Dutch lawyer specialized in claims for damages, Remko Roosjen, will be happy to help you.
Office: +31 (0)20 – 210 31 38