Unlawful act
Written by:
Hein Kernkamp
Article 6: 162 DCC: the tort
According to Section 6: 162 of the Dutch Civil Code, paragraph 1, a person who commits a wrongful act against another person, which can be attributed to him, is obliged to compensate the damage that the other person suffers as a result. The obligation to pay compensation is not based on an agreement. The wrongful act is about non-contractual liability, a liability that does not arise from a contract or a contractual breach.
Five requirements
Five requirements must be met for liability under Article 6: 162 of the Dutch Civil Code, namely: tort, imputability of the act to the perpetrator, damage, causal relationship between act and damage and relativity.
Unlawful act
Article 6: 162 BW distinguishes three types of wrongful conduct:
- infringement of a right
- an act or omission in violation of a legal obligation
- an act or omission contrary to what is appropriate in society according to unwritten law
The first two categories are clear. Anyone who infringes the property rights of someone else acts unlawfully. A legal rule is not observed when acting in violation of a legal obligation. This could also be, for example, violating a permit regulation.
The third category is the incorporation in the law of the text formulated by the Netherlands Supreme Court in 1919 in Lindenbaum / Cohen judgment rule of law that violations of unwritten standards may also constitute an unlawful act.
Lindenbaum / Cohen
The case leading to the decision took place in 1915, more than 100 years ago, between two owners of printer companies in Amsterdam; Lindenbaum and Cohen. Cohen had come up with a ruse and persuaded a Lindenbaum employee to give him competitive customer information, such as copies of bids submitted and further customer information that that employee had responded to, causing Lindenbaum to suffer damage. Lindenbaum did not take it and went to court, which ultimately led to the Netherlands Supreme Court's judgment, that violation of unwritten standards can lead to liability.
Basement hatch judgment
Another important judgment in the field of tort is the Kelderluik judgment of 5 November 1965. The case concerns a visitor to café De Munt at Singel 522 in Amsterdam, who falls through an open cellar hatch on the way to the toilet and breaks his leg. The basement hatch had been opened by a Coca-Cola staff member, who was collecting empty bottles. The case gave the Netherlands Supreme Court the opportunity to make a still authoritative statement about endangering. This concerns the tension between danger on the one hand and inattention on the other.
The question that has been raised is whether a person who creates a situation that is dangerous to others can be required to take security measures. The Netherlands Supreme Court formulates the Basement hatch criteria for this:
When assessing whether the creation of a dangerous situation constitutes an unlawful act, attention must be paid to:
- the likelihood with which non-observance of the required alertness and prudence can be expected
- the magnitude of the chance of accidents resulting from this
- the seriousness of its consequences, and
- the degree of difficulty of taking security measures
In the present case, a serious danger had been created which could have been avoided by simple means. The Coca-Cola Export Corporation was therefore rightly ordered to pay damages for the unfortunate café visitor.
Imputability
An act is attributable to the perpetrator if it is due to his fault or to a cause that is for his account according to law or traffic. In other words, someone has made a mistake.
Damage
Liability only exists if the behavior has led to damage. This can be damage to property or other disadvantage. Financial loss includes both loss and loss of profit. Intangible damage is a form of other disadvantage that is eligible for compensation. The presence of damage is generally quickly assumed.
Causality
The causal relationship concerns the relationship between the cause (the wrongful act) and the consequence of the damage. This relationship is reflected in the definition of tort in the law by the word "as a result." The causality requirement is usually met if there is a 'conditio sine qua non', the condition without which the consequence would not have occurred. If the damage would also exist without the act, this condition is not met.
Relativity
When the breached standard does not protect against the damage suffered, there is no obligation to pay compensation. This rule formulated by the Netherlands Supreme Court in 1928 is laid down in Section 6: 163 of the Dutch Civil Code. However, the principle of relativity is not absolute. An important judgment on the principle of relativity is the dentist judgment of January 17, 1958, which concerned a dentist who worked without a license. That was not allowed, but the standard was not written to protect other dentists from this type of illegal competition. The 'correction Langemeijer' referred to the Advocate General at the Netherlands Supreme Court offered a solution here.
The correction Langemeijer
This correction means that, although the legal limitation of the admission to practice dentistry has been given to protect public health, as a guarantee against improper professional practice, this does not detract from the fact that a competent competitor may have a special interest that others also are in compliance with the regulations regarding admission to the profession. With the correction Langemeijer, the act of the non licensed dentist was still illegal.
Further information
Do you want to know more about what wrongful acts and liability? Ask us today without obligation what we can do for you in your case. We are happy to help you. It is not without reason that our motto is: "Your problem, our concern."
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