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Under Dutch law, a person who commits a tort (onrechtmatige daad) against another must compensate the damage the other suffers as a result (Article 6:162 of the Dutch Civil Code (DCC)). A claim requires five elements: an unlawful act, attribution to the wrongdoer, damage, causation and relativity (Articles 6:162 and 6:163 DCC). This page gives a short overview of each element.
For specific liability for employees, children, things and buildings, limitation periods and cross-border torts, see our page on tort under Dutch law. Our Dutch liability and contract lawyer Remko Roosjen provides more insights on this topic below.
What is an unlawful act under Dutch law?
Dutch law recognises three types of unlawful acts: an infringement of a right, an act or omission in breach of a statutory duty, and an act or omission contrary to what is generally accepted as proper social conduct under unwritten law. In each case, the act is not unlawful if there is a ground of justification (rechtvaardigingsgrond), such as self-defence (Article 6:162(2) DCC).
An infringement of a right may consist, for example, of a violation of property, physical integrity or an intellectual property right. Whether conduct is contrary to unwritten standards of proper social conduct depends on the circumstances. For dangerous situations, the Supreme Court (Hoge Raad) looks at how likely it is that others will not pay due attention, how likely accidents are as a result, how serious the consequences can be and how burdensome precautions would be (Hoge Raad 5 November 1965, ECLI:NL:HR:1965:AB7079, Kelderluik).
When can an unlawful act be attributed to the wrongdoer?
The unlawful act must be attributable to the wrongdoer. That is the case if it is due to his fault, or to a cause for which he is accountable by law or according to generally accepted views (Article 6:162(3) DCC). Liability for employees and for things is governed by separate rules, for example Article 6:170 DCC (employees) and Article 6:173 DCC (dangerous movable things).
Which losses are recoverable in tort?
Damages consist of financial loss and other loss, but other loss only to the extent that the law gives a right to compensation for it (Article 6:95(1) DCC). Financial loss covers both losses suffered and lost profits (Article 6:96(1) DCC). Non-material loss can be claimed, for example, if the wrongdoer intended to cause it, or if the injured party suffered physical injury, was harmed in his honour or reputation or was otherwise harmed in his person (Article 6:106 DCC). In practice, the amount of the damage is disputed more often than whether there is damage at all.
How is causation assessed?
There must be a causal link between the unlawful act and the damage. Only damage that is connected with the event in such a way that it can be attributed to the wrongdoer as a consequence of it qualifies, taking into account the nature of the liability and of the damage (Article 6:98 DCC). As a rule, the injured party must prove the causal link, unless a special rule or reasonableness and fairness require a different allocation (Article 150 Dutch Code of Civil Procedure).
What is the relativity requirement?
There is no obligation to pay damages if the norm that was violated does not serve to protect against the damage as suffered by the injured party (Article 6:163 DCC). To determine the purpose of a statutory norm, courts often look at its legislative history.
Why does case law matter in Dutch tort claims?
As indicated above, the outcome often depends on the specific circumstances of the case, and often specific case law needs to be referred to. Our lawyers at MAAK Advocaten are familiar with the most important case law and have a lot of experience with tort law.
Frequently asked questions about tort in the Netherlands
Is a company liable in tort under Dutch law?
Yes. Article 6:162 DCC applies to anyone who commits an unlawful act, including companies. A company can also be liable for faults of its employees (Article 6:170 DCC).
Can a tort claim exist alongside a contract?
Article 6:162 DCC does not exclude this. Between contracting parties, however, a claim is usually based on breach of contract, which requires compensation unless the breach cannot be attributed to the debtor (Article 6:74(1) DCC).
Does the injured party always have to prove causation?
As a rule, yes: the party relying on the causal link must prove it, unless a special rule or reasonableness and fairness require a different allocation (Article 150 Dutch Code of Civil Procedure). The standard for which damage is attributed is in Article 6:98 DCC.
Can you claim non-material damage for a tort?
Only where the law provides for it (Article 6:95(1) DCC), for example if the wrongdoer intended to cause such harm or if the injured party suffered physical injury or damage to his honour or reputation (Article 6:106).
When does a Dutch tort claim become time-barred?
Five years after the day following the day on which the injured party became aware of both the damage and the liable person, and in any case twenty years after the event that caused the damage (Article 3:310(1) DCC). Different rules apply to, among other things, damage caused by pollution (Article 3:310(2)) and personal injury (Article 3:310(5)).
Primary sources
- Dutch Civil Code: Articles 3:310, 6:74, 6:95, 6:96, 6:98, 6:106, 6:162, 6:163, 6:170 and 6:173
- Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering): Article 150
- Hoge Raad 5 November 1965, ECLI:NL:HR:1965:AB7079 (Kelderluik)
Do you need a Dutch lawyer specialised in tort law?
Do you have any questions regarding tort in the Netherlands or do you need specific legal advice regarding Business Torts under Dutch Law? Our experienced liability lawyer in the Netherlands Remko Roosjen will be happy to help you.
