Tort law is one of the categories that falls within the scope of non-contractual liability. Tort law (Article 6:162 of the Dutch Civil Code) deals with a variety of situations in which damages are suffered by one party but their is no written or oral agreement between the parties involved.
Numerous situations can qualify as a tort under the Dutch Civil Code. For example, committing a criminal offence, such as assault and battery, can result in liability under Article 6:162 of the Dutch Civil Code (tort), but also not giving a (sufficient) warning about a particular danger to which people are exposed, like in the Kelderluik judgment, can qualify as a tort.
In order to be able to speak of a tort within the framework of the Dutch Civil Code, five conditions must be met:
- Unlawful act
- Causal link
The law distinguishes between three categories of unlawful acts, namely:
- (a) an infringement of a right,
- (b) acting or failing to act in breach of a legal duty; and
- (c) acting contrary to social decency.
Although the Dutch Civil Code seems to clearly distinguish between the three categories, the above three categories are not clearly distinguishable and many situations therefore fall within the scope of several categories. For example, you are violating someone's physical integrity (category a) if you kick someone in the stomach for no reason. By giving a hard kick without any reason, you are also in breach of a legal obligation (category b). Assault and battery is a criminal offence. In addition, it is a general rule of social decency that you do not kick someone in the stomach without a good reason (category c).
The second criteria for a tort is that the unlawful act should be attributable to the perpetrator. The wrongful act is attributable to the perpetrator if it is his fault or if it falls within his sphere of risk.
Thirdly, damage is required. The Dutch civil law system knows two types of damages, namely material and immaterial damages. The damage actually suffered by the injured party will, in principle, be taken as the starting point for the to be claimed compensation.
To qualify as a tort, the fourth criteria that should be met is that the damage suffered by the injured party is the result of the wrongful act. If the damage would have occurred even if the wrongful act had not taken place, there is no tort within the meaning of the Dutch Civil Code.
Finally, it is required that the rationale of the violated rule protects the interests at stake and damages caused by the unlawful act. If that is not the case, no compensation can be claimed on the grounds of tort.
A classic example of the Supreme Court is the so called Tandartsenarrest. In this case, a dentist practised his profession without the necessary diplomas. Other dentists attempted to hold the dentist in question liable on the basis of tort law because they shared the opinion that this resulted in unfair competition. The rule that a dentist must possess certain diplomas was never meant to regulate competition but to protect the dentist's clients. For that reason, practising as a dentist without the necessary diplomas may qualify as an unlawful act against the clients of the dentist but not against his competitors.
For a number of situations, the Dutch Civil Code contains a specific provision. The Dutch Civil Code, for example, contains provisions for the following situations:
- holding parents of minors liable, Article 6:169 of the Dutch Civil Code
- holding (non-)subordinate(s) liable, Article 6:170/6:171 of the Dutch Civil Code
- holding a representative liable, Article 6:172 of the Dutch Civil Code
- holding a possessor of a defect good liable, Article 6:173 of the Dutch Civil Code
- holding the owner of a building liable, Article 6:174 of the Dutch Civil Code
- holding someone liable for the use of hazardous substances, Article 6:175 of the Dutch Civil Code
- holding a producer of a product liable, Article 6:185 of the Dutch Civil Code
Have you suffered damages or have you been held liable by someone else? Then register your case or contact us by telephone via 013 53 53 885 for an intake. Our attorneys will examine together with you whether your situation falls under the general and/or special provisions of tort law and who should be hold accountable for the damages suffered.