A tort under Dutch law (usually referred to in the English system) is a civil wrong between private individuals. In different legal systems it may be known as a delict (for example, in Scotland). Torts concern non-contractual obligations as there will be no contractual relationship between the parties involved and can result in legal liability. As soon as a tort under Dutch law or delict is established, a legal obligation arises between the parties. In England, common law determines the rights between individuals – unlike the civil jurisdiction of the Netherlands. Our Dutch liability attorneys are happy to help you.
Dutch attorneys specialized in tort
Our Dutch attorneys specialized in tort are familiar with Dutch law and international law. In cross-border situations, the Rome II Regulation determines the law applicable to non-contractual obligations within the European Union. It provides that the law applicable to tort, delict or quasi-delict is the law of the country in which the person sustaining damage sustained the damage. The UK parliament approved the Law Application to Contractual Obligations and Non-contractual obligations (amendment etc.) (EU Exit) Regulations 2019 which largely apply the rules set out in Rome II. The EU member states will continue to apply English law where Rome II so determines as is it applies regardless of whether the applicable law is that of an EU member state. Additionally, there is the possibility of a so-called choice of law in the case of a tortious act: In cross-border disputes, the parties can agree on the applicable law after the occurrence of the damaging event.
Tort Under English law
Under English law the most common type of tort is negligence and nuisance. For liability to be found there must be four conditions met:
- A duty of care
- A breach of that duty
- Damage with causation
- Foreseeability
The conditions and their respective tests overlap and under English case law it is not a straight-forward four step test but an assessment of the existing precedents in case law.
torts and delicts in the Netherlands
In Dutch law, torts and delicts in the Netherlands are regulated by Art. 6:162 BW (Burgerlijk Wetboek). Damages based on article 6:162 BW can be claimed if five conditions are met: unlawful act, attributability, damage, causality, and relativity.
Unlawful act
Dutch law distinguishes between three types of acts that constitute a tort or delict: an infringement of rights, an act or omission in breach of a statutory duty, and an act or omission in breach of what is customary in society under unwritten law. A violation of rights may include, for example, the violation of the right to physical integrity. Whether an act is also unlawful, depends on the severity and duration of the act and the circumstances under which the infringement occurs.
Attributability
The wrongful act must also be attributable to the person causing the damage. Attributability exists if the person is to blame for his behaviour or if the unlawful act is within his sphere of risk.
Damage
The injured party can claim both material damage and immaterial damage (“other damage”) on the basis of CC Art. 6:162. On the basis of Art. 6:95 et seq. of the Civil Code, the extent of the obligation to pay compensation must be determined by law.
Causality
Dutch law also requires a causal link between the unlawful act and the occurrence of the damage. The burden of proof that such a causal link exists lies in principle with the injured party.
Relativity
According to Dutch law, there must also be relativity – i.e. the norm violated by the infringer must have been written precisely to protect the violated interest. This principle is enshrined in Article 6:163 BW: “There is no obligation to pay damages if the norm that has been infringed does not protect the injured party from damages suffered by the injured party. “”.
Our Dutch attorneys in the Netherlands have acquired subject-specific expertise over the years and will be happy to assist you in asserting claims for damages in tort. If necessary, our litigation attorneys at MAAK Attorneys at Law can also help you to sue and enforce your claims in tort.
Dutch specialist attorney specialized in Tort
Do you have questions about Dutch contract law or do you need specific legal advice in Holland on the subject of tort under Dutch law? Our Dutch specialist attorney specialized in tort, Remko Roosjen, will be happy to help you.
T: +31 (0)20 – 210 31 38
E: mail@maakadvocaten.nl
Contact: Remko Roosjen | Dutch Corporate Lawyer