Attributability (toerekenbaarheid) determines whether a failure to perform or a wrongful act can be charged to the party held liable. Under articles 6:75 and 6:162(3) of the Dutch Civil Code (BW), this is the case if it results from that party’s fault or from a cause for which it is accountable by law, by agreement or by common opinion.
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Is attributability the same as fault?
No, it is broader. A party without fault can still be liable if the cause falls within its risk. Article 6:76 BW makes a debtor liable for helpers it uses, such as subcontractors. Article 6:77 BW makes it liable for unsuitable goods or tools it uses, unless that would be unreasonable.
What if a breach of contract is not attributable?
Then there is force majeure (overmacht) under article 6:75 BW. The debtor does not owe damages under article 6:74 BW. The creditor can still dissolve the contract (article 6:265 BW) or suspend its own performance, because those remedies do not require attributability.
Who must prove attributability?
It depends on the basis of the claim:
- Contract: once a shortcoming in performance is established, the debtor must prove it is not attributable.
- Tort: attributability is one of the requirements of article 6:162 BW, so in principle the claimant must establish it.
Frequently asked questions
Can a contract change attributability?
Yes. Parties can define force majeure or limit liability, within the limits of reasonableness and fairness.
Is a supplier’s failure force majeure?
Usually not. Problems with your own suppliers are generally for your own account.
Related terms
Our civil law team assesses whether a breach or wrongful act can be charged to the other party. Want to know what this means for your situation? Book a free introductory meeting.
