A tort is conduct that infringes a right, breaches a statutory duty, or is contrary to the standard of care that unwritten law requires in society. Anyone who acts in that way and can be blamed for it must compensate the loss caused.
Legal basis
Article 6:162 of the Dutch Civil Code contains the norm. Paragraph 2 lists the three categories of unlawfulness, paragraph 3 attribution: fault, or a cause for which the perpetrator is answerable under statute or generally accepted standards. Article 6:163 adds the relativity requirement: the norm breached must serve to protect against the kind of loss the claimant suffered. Articles 6:169 to 6:184 contain strict liabilities, including for children, subordinates, structures and defective goods. Article 6:98 limits the duty to compensate to loss sufficiently connected to the event that it can reasonably be attributed to it.
How it works in practice
The claim has five elements: unlawfulness, attribution, loss, causation and relativity. In practice a case rarely fails on unlawfulness but often on causation and on the extent of the loss. For the standard of care the so-called Cellar Hatch factors are decisive: the likelihood of an accident, the seriousness of the consequences, the burden of precautionary measures and the degree of care that can be expected of others.
Where it goes wrong
Claimants substantiate loss too late or too generally; separate quantum proceedings offer delay but no escape from the burden of proof. A second problem is overlap with breach of contract, where a contractual failure is dressed up as a tort without an independent basis. Third, contributory negligence under Article 6:101 is regularly underestimated.
Related terms
Tort sits alongside breach of contract and leads to damages; the claim is subject to the rules on the limitation period.
Have you suffered loss through someone else’s conduct? Our civil law specialists assess the five elements.
