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You draft a disclaimer of liability by refuting the claim point by point: you state the date and reference number of the claim, dispute that an error was made, state that the damage and the causal link have not been proven, point out the statute of limitations where possible, and refer to your insurer if necessary. The key is that you do not acknowledge anything and formulate it in a businesslike manner, so that not a single sentence can later be interpreted as a promise.
The short answer
- Refer to the claim: date, reference number, who holds liable.
- Decline: declare that you do not acknowledge liability.
- Substantiation: no fault, damage not proven, no causal link.
- Statute of limitations: invoking it if the time limit has expired.
- Insurer: refer the claim and report it to your policy.
- Conclude: professionally, without promises or excuses.
Drafting a disclaimer of liability: the structure
A good rejection follows a fixed structure. Begin with the salutation and a reference to the liability claim received: mention the date, any case number, and the party you are holding liable. This establishes what you are responding to.
Next comes the core: the explicit rejection and the grounds for it. You conclude with a businesslike closing sentence and, if applicable, a referral to your insurer. Keep the letter clear and address each defense in a separate paragraph.
The substantive substantiation
The substantiation is the heart of the letter. Address the defenses that apply to your situation:
- No fault or shortcoming. Explain why there is no unlawful act (Art. 6:162 BW) or attributable shortcoming (Art. 6:74 BW). Refer to the facts: what happened and why does this fall within what may be expected of a reasonably acting entrepreneur.
- Damage not proven. Assume that the existence and extent of the damage have not been substantiated by documents. Request concrete evidence before responding further on the merits.
- No causal link. Argument that, even if there were a fault, the connection between that fault and the alleged damage is absent or too distant (Art. 6:98 BW).
- Statute of limitations. Invoke the statute of limitations if the five-year period has expired after knowledge of the damage and the liable party (Art. 3:310 BW).
No acknowledgment: watch your words
The biggest pitfall is unintentionally admitting liability. Avoid phrases such as “we are sorry that” or “we should have paid more attention.” Such sentences can be used against you in legal proceedings.
If you want to offer a practical solution without giving up your position, explicitly add “without admission of liability.” This way, you retain full legal leeway while potentially still settling a dispute smoothly.
Making good use of the statute of limitations
Statute of limitations is a strong defense, but check the time limit carefully. The limitation period only begins to run from the moment the injured party is aware of both the damage and the liable person. A formal demand or acknowledgment can interrupt the time limit, after which a new period begins.
Only invoke the statute of limitations if you are certain that the time limit has expired. An unjustified reliance weakens your letter. If in doubt, state it conditionally: “insofar as there might be a claim, it is time-barred”.
Referral to the insurer
If you have business liability or professional liability insurance, report the claim directly to your insurer. Include a sentence in the rejection that refers the opposing party to your insurer for further handling.
Pay attention to the policy conditions: many insurers prohibit you from independently admitting liability or promising payments. Adhere to this, otherwise your coverage may lapse. The insurer usually takes over the substantive assessment.
A brief practical example
A web agency receives a liability notice: a client claims €5,000 in lost revenue due to a malfunction on his website. The agency drafts the rejection: it refers to the letter dated March 3 with reference number, rejects liability, and substantiates that the malfunction was caused by the client's own hosting provider (no fault), that the loss of revenue has not been substantiated with figures (damages not proven), and that there is no direct link (no causal link). The agency reports the claim to its professional liability insurer. The letter remains factual and contains no admission whatsoever.
Honest recommendation
For a straightforward claim of limited value, you can perfectly well draft the rejection yourself. Stick to the structure, state the defenses at hand, and formulate it in a businesslike manner without admitting anything. A lawyer is not necessary in this case, especially if you also report the claim to your insurer.
Have the letter checked or drafted by a lawyer if the amount is high, multiple parties are involved, or the opposing party has legal assistance. First, read what a disclaimer of liability is, check the cost of having a disclaimer of liability drafted, or use the disclaimer of liability from MKB Juristen directly.
Frequently Asked Questions
First, refer to the notice of liability received (date and reference number), reject liability, substantiate why there is no fault, that the damage and causal link have not been proven, and whether the claim is time-barred, and refer to your insurer if necessary. Formulate your arguments in a businesslike manner without admitting anything.
The reference to the claim, the explicit rejection, the substantiation per ground (no fault, no proven damage, no causal link), possibly an appeal to the statute of limitations, and a referral to the insurer. Conclude coverage without promises.
Avoid excuses and expressions of regret such as “we are sorry” or “we should have paid more attention.” These can be interpreted as an admission of liability. If you still wish to accommodate, explicitly use “without admission of liability.”.
Suppose that the existence and extent of the damage have not been substantiated with concrete documents and ask the opposing party to submit them. As long as this does not happen, you are not required to address the substance of the amount of the damage.
Only if the time limit has actually expired. The five-year limitation period begins upon knowledge of the damage and the liable party (Art. 3:310 BW) and may have been interrupted. If in doubt, formulate it conditionally: “insofar as there may be a claim, it is time-barred”.
If you have liability insurance: yes. Report the claim directly to your insurer and include a referral in the letter. Pay attention to the policy conditions: admitting liability yourself can cost you coverage.
For a small, straightforward claim, a fixed structure works perfectly well. However, for a large amount, multiple parties, or an opposing party with a lawyer, legal verification is advisable, as a single incorrect sentence can be interpreted as an admission.
