Liability arising from tort

Liability arising from tort

The unlawful act is also referred to as extra-contractual liability. In principle, civil law grants anyone who suffers damage due to the conduct of another a right to claim compensation for that damage. The unlawful act has a number of conditions, namely:

• The conduct (acting or failing to act) must be unlawful
• The unlawful act must be attributable to the perpetrator
• There must be damage
• There must be a causal link between the conduct and the damage

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of liability law. Contact us to discuss the possibilities.

The five requirements of a tort (Article 6:162 of the Dutch Civil Code)

The legal basis for non-contractual liability is found in Article 6:162 of the Dutch Civil Code. Anyone who commits an unlawful act against another that can be attributed to him is obliged to compensate the damage suffered by the other as a result. In case law and literature, five requirements are distinguished that must all be fulfilled before a claim succeeds:

• Unlawfulness – an infringement of a right, an act or omission contrary to a statutory duty, or conduct contrary to what is proper in social interaction according to unwritten law (the standard of care).
• Attributability – the act must be capable of being attributed to the perpetrator, on the basis of fault or on the basis of a cause that is for his account pursuant to the law or generally accepted views.
• Damage – actual damage must have been suffered (financial loss or other disadvantage).
• Causal link – there must be a causal link between the conduct and the damage.
• Relativity – pursuant to Article 6:163 of the Dutch Civil Code, there is no obligation to pay compensation when the violated norm does not extend to protection against the damage as suffered by the injured party.

If one of these requirements is missing, the claim fails. For both an international corporation and the baker on the corner, it therefore pays to have it assessed early on whether all elements are demonstrable. Our lawyers and in-house counsel map out this analysis in detail, from both the perspective of the injured party and the defendant.

Grounds for justification: when is conduct not unlawful after all?

In itself harmful conduct is not unlawful if a ground for justification exists. Examples include self-defense, force majeure, a statutory provision, a valid official order, or consent from the injured party. Anyone being sued would do well to investigate whether such a ground removes the unlawfulness. Invoking a ground for justification is often the difference between full liability and no liability; a careful legal assessment is decisive in this regard.

Strict liability: liable without fault of one's own

In addition to the fault-based liability under Article 6:162 of the Dutch Civil Code, the law recognizes a range of strict liabilities: cases in which one is liable without contributory negligence needing to be established. The Civil Code regulates, among other things:

• liability for subordinates and non-subordinates (Articles 6:170 and 6:171 of the Dutch Civil Code);
• liability for defective goods and structures (Articles 6:173 and 6:174 of the Dutch Civil Code);
• liability for animals (Article 6:179 of the Dutch Civil Code);
• product liability (Article 6:185 et seq. of the Dutch Civil Code).

This is relevant for entrepreneurs: an employer or company can be held liable in this way for damage caused by personnel, company assets, or products. We assess which regime applies and which defenses are available.

Contributory negligence and damage mitigation

Even if the unlawful act has been established, the full amount of the damage does not always have to be compensated. Pursuant to Article 6:101 of the Dutch Civil Code (contributory negligence), the obligation to compensate is reduced when the damage is partly the result of a circumstance attributable to the injured party. In addition, the injured party has an obligation to mitigate their damage. These legal doctrines often provide the party being sued with scope to significantly reduce the compensation.

Compensation for unlawful act

If the claim is successful, there is a right to compensation pursuant to Section 6.1.10 of the Dutch Civil Code (Article 6:95 et seq.). Compensation is due for both pecuniary damage suffered (such as incurred loss and lost profits) and – in cases designated by law – other disadvantage, such as non-pecuniary damage. In practice, the extent of the damage and the method of assessment are often the focal point of the dispute. The settlement of damages and the substantiation of a claim are discussed in more detail on our page Damages & Compensation Claims.

Statute of limitations: don't wait too long

A claim arising from a tortious act is subject to a statute of limitations. Pursuant to Article 3:310 of the Dutch Civil Code, a limitation period of five years applies from the date the injured party became aware of the damage and the liable person, with an absolute term of, in principle, twenty years following the damage-causing event. Anyone who waits too long risks the claim becoming unenforceable. Timely interruption and action are therefore essential; we monitor the time limits and draft a letter to interrupt the limitation period where necessary.

Tort, contract and liability insurance

Non-contractual liability rarely stands alone. It often runs parallel to contractual liability or plays a role in professional liability , directors' and officers' liability , or employer's liability . Furthermore, general liability insurance is of great importance to entrepreneurs : it can provide coverage for damage caused to third parties by a wrongful act. We assess not only the legal position but also whether and how the insurance should be engaged.

Our approach: from the baker on the corner to the international corporation

MKB Juristen works with mixed teams of lawyers and (corporate) legal counsel who have mastered the full scope of liability law. Whether you have suffered damage yourself due to the unlawful actions of another, or are being sued, we assume diverse roles: from advice and negotiation to conducting litigation. Our clients range from international corporations and listed companies to (semi-)governmental bodies and the small business owner around the corner. This expertise is part of our broader Liability, Damages and Insurance.

Frequently asked questions about liability arising from tort

What is the difference between tort and breach of contract?

A tort (Article 6:162 of the Dutch Civil Code) is extra-contractual: it arises without an agreement existing between the parties. Breach of contract, on the other hand, presupposes a failure to perform an existing agreement. Sometimes both legal bases coincide; we assess which route offers the strongest position.

What damages am I entitled to in the event of a wrongful act?

You may claim compensation for your pecuniary damage (suffered loss and lost profits) and, in the cases designated by law, for non-pecuniary damage. The extent must be substantiated and estimated.

Within what timeframe must I submit a claim?

In principle, a claim arising from a tortious act lapses five years after you become aware of both the damage and the liable party (Article 3:310 of the Dutch Civil Code). Therefore, do not wait too long and ensure the time limits are monitored in a timely manner.

Can I also be held liable without being at fault?

Yes. In the case of strict liability (for example, for personnel, defective goods, or products), you may be held liable without your own fault being established. It is then important to investigate which defenses and insurance coverage are available.