Contributory fault (eigen schuld) means that the injured party’s own conduct or risk contributed to the damage. Under article 6:101 of the Dutch Civil Code (BW), the liable party’s obligation to pay damages is then reduced. The loss is divided according to how much each party’s circumstances contributed, with a correction for fairness.
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How is the damage divided?
The court first makes a causal division: to what extent did each party’s circumstances cause the damage? It then applies a fairness correction. Given the seriousness of the faults or other circumstances, fairness may require a different division, or that the duty to compensate lapses entirely or remains in full.
Does failing to limit damage count?
Yes. Failing to take reasonable steps to limit the damage (schadebeperkingsplicht) falls under article 6:101 BW. Examples are leaving a leak unrepaired or continuing to use a defective machine. Reasonable costs of limiting damage can themselves be claimed under article 6:96 BW.
When does it apply?
Article 6:101 BW applies to every statutory obligation to pay damages. It covers both breach of contract and tort. The party that invokes contributory fault must state and, if disputed, prove the facts, under the general burden of proof rule of article 150 of the Dutch Code of Civil Procedure.
Frequently asked questions
Can contributory fault reduce damages to zero?
Yes. If the injured party’s share is decisive, the fairness correction can exclude compensation entirely.
Is it the same as common law contributory negligence?
No. Dutch law never bars a claim automatically; it divides the loss case by case.
Related terms
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