Article 6:162 of the Dutch Civil Code states that the party who commits a tort towards another is obligated to compensate the losses, which the other party suffers as a result. In order to succeed, an action on grounds of a tort must meet five requirements: unlawfulness, attributability, loss, causality and relativity.
The law draws a distinction between three actions which represent an unlawful act: the infringement of a right, an action or failure to act in contravention of a statutory duty and an action or failure to act in contravention of generally accepted norms. Examples of infringements of a right include infringements of intellectual property rights (such as brand rights or copyright), the right to privacy, the right to physical integrity and the right to undisturbed enjoyment of property. Not every infringement immediately constitutes an unlawful act; some nuisance must be tolerated. Whether the nuisance is unlawful will depend on the seriousness and the duration of the nuisance and the circumstances under which the nuisance occurs.
The unlawful act must be attributable to the perpetrator. Attributability exists if the perpetrator’s actions are his fault or if the unlawful act lies within the range of risks falling on him. An unlawful act that is attributable to the perpetrator is also known as ‘a fault’.
The law does not define the term loss. However, it does state that the losses which must be compensated pursuant to a legal obligation to pay compensation consist of ‘financial loss and other detriment’. Financial losses comprise both the loss suffered and lost profits. With the term ‘other detriment’, the law refers primarily to immaterial losses. The existence of losses is generally quickly accepted.
The causal link is the link between the cause (the unlawful act) and the consequence of the loss. This link is expressed in the definition of unlawful act in law in the word ‘consequently’. In principle, it is the aggrieved party who must claim and if necessary substantiate the existence of such a link.
The relative aspect of the unlawfulness means that the norm infringed by the perpetrator must have been codified in order to protect the interest that has been harmed. The relativity principle is enshrined in article 6:163 of the Dutch Civil Code: “no obligation to pay compensation shall exist if the norm infringed is not designed to offer protection against the loss suffered by the aggrieved party.” For example, in a classic judgment of the High Council of Justice (the ‘Dentist Ruling’), it was ruled that while practising the profession of dentist without the required diploma is unlawful, in principle it is not unlawful with respect to dentists who do hold diplomas.
The specialists in obligations law at AMS have extensive experience of torts and compensation, and also initiate proceedings in these areas for their clients if necessary. The lawyers at AMS are closely involved in their clients’ cases, work with short lines of communication and offer competitive rates. Feel free to contact us for a free meeting with no obligation.