Хамгийн сүүлд шинэчилсэн: 2026 оны 8-р сарын 9.
Tort law governs what happens when one person’s conduct wrongfully causes harm to another outside of any contract between them. In the Netherlands, this area of civil law is known as onrechtmatige daad (“unlawful act”) and is codified in Article 6:162 of the Dutch Civil Code (Burgerlijk Wetboek, BW). It is one of the most important routes to compensation in Dutch private law: whenever someone suffers damage because another party acted unlawfully, the law of tort determines whether, and to what extent, that damage must be repaired.
This guide explains what an onrechtmatige daad is, how it differs from a crime and from a breach of contract, the statutory elements that must be met, the main types of tortious liability, the remedies available, and how a claim proceeds in practice. It is written for claimants, businesses, students and internationals who need a precise but accessible overview of tort law under the Dutch Civil Code.
What is an onrechtmatige daad (tort) under Dutch law?
An onrechtmatige daad is a wrongful act or omission that causes damage to another person and for which the wrongdoer can be held liable to pay compensation. The foundation is Article 6:162 BW, which obliges a person who commits an unlawful act towards another that can be attributed to them to repair the resulting damage.
Article 6:162 recognises three forms of an unlawful act:
- Infringement of a right — for example, damage to property, bodily integrity, or reputation.
- An act or omission breaching a statutory duty — conduct that violates a written legal rule.
- An act or omission contrary to the unwritten standards of proper social conduct — behaviour that falls short of what is generally regarded as acceptable in society, even where no specific written rule has been broken.
This third category is what makes Dutch tort law flexible. It allows courts to hold conduct unlawful because it is socially unacceptable and creates unreasonable risks for others, rather than only when a specific statute has been infringed.
Tort, crime and contract: what is the difference?
Tort is easily confused with two neighbouring fields, but the distinctions matter:
- Tort vs. crime. Criminal law concerns offences against the public order, prosecuted by the State, with penalties such as fines or imprisonment. Tort law is private law: it is pursued by the injured party to obtain compensation. The same event (say, a violent assault) can lead to both a criminal prosecution and a separate civil tort claim.
- Tort vs. contract. Contractual liability arises from breaking an agreement the parties made themselves. Tortious liability arises independently of any contract, from a duty owed to others generally. In some situations the two overlap and a claimant may have both a contractual and a tortious basis for a claim.
The elements of liability under Article 6:162 BW
For a claim in tort to succeed, the following elements must generally be satisfied. Many English-language guides summarise tort as “duty of care, breach, causation and damage”; that framing is a helpful bridge, but the accurate Dutch statutory requirements are these:
- An unlawful act (onrechtmatige daad). The conduct must fall within one of the three forms above: an infringement of a right, a breach of a statutory duty, or a breach of the unwritten standards of proper social conduct.
- Attributability / imputability (toerekenbaarheid). The act must be attributable to the wrongdoer — either through fault (culpability) or on the basis of a cause for which they are answerable by law or according to common opinion. Liability is therefore not always dependent on personal blame.
- Damage (schade). There must be actual loss, whether material (financial or property damage) or non-material (pain and suffering).
- Causal link (causaal verband). There must be a causal connection between the act and the damage. Dutch law applies a two-stage test: the condicio sine qua non (“but for”) test, followed by reasonable attribution of the damage to the event.
- The relativity requirement (relativiteitsvereiste, Article 6:163 BW). No obligation to repair damage arises where the breached norm does not serve to protect against the kind of damage that the injured party actually suffered. In other words, the rule that was broken must have been intended to protect the claimant’s interest.
If any of these elements is missing, the claim fails. The relativity requirement in particular is often decisive and is easy to overlook.
Types of tortious liability
Dutch tort law distinguishes several categories, which differ chiefly in whether fault must be proven.
- Intentional wrongdoing. The wrongdoer deliberately caused the harm — for example, deliberate damage to property or reputation.
- хайхрамжгүй байдал. The wrongdoer failed to exercise the care that could reasonably be expected, causing foreseeable harm.
- Strict or qualitative liability (risicoaansprakelijkheid). In defined situations the law imposes liability regardless of personal fault, because a person is answerable for a particular person, thing or activity. Examples include liability for children, for employees acting in the course of their duties, for animals, and for defective goods or premises (such as buildings, movable objects or unsafe roads). These forms are set out in separate provisions of Book 6 BW and shift the risk onto the party best placed to prevent or insure against the harm.
Common torts in practice
While the legal framework is general, certain fact patterns recur:
- Personal injury and traffic accidents. Claims for bodily injury after road accidents, workplace accidents or dangerous situations. These frequently turn on the standard of care and often engage strict liability rules (for example, the heightened protection of vulnerable road users).
- Defamation and privacy. Unlawful publications, insults, or breaches of privacy that damage reputation or infringe personality rights. Courts weigh freedom of expression against protection of reputation and private life.
- Professional and medical liability. Claims against professionals — doctors, lawyers, accountants, notaries — who fail to meet the standard of a reasonably competent practitioner.
- Бүтээгдэхүүний өр төлбөр. Harm caused by defective products, where a producer may be liable for damage caused by a defect in their product.
- Nuisance. Unreasonable interference with the use and enjoyment of neighbouring property, such as noise, odour, water or structural hazards.
Remedies and damages
The primary aim of Dutch tort law is reparation — putting the injured party, as far as possible, in the position they would have been in had the unlawful act not occurred. The main remedies are:
- Compensatory (material) damages. Financial compensation for material loss, such as medical costs, lost income, property damage and other quantifiable expenses.
- Non-material (immaterial) damages — smartengeld. Compensation for pain and suffering, disfigurement, or other non-financial harm, awarded in the cases the law allows.
- Injunctions and rectification. A court may order a party to stop or refrain from unlawful conduct, or to rectify an unlawful publication.
Importantly, punitive damages are essentially not part of Dutch law. Compensation is intended to make good the loss actually suffered, not to punish the wrongdoer; punishment is a matter for the criminal courts.
How a tort claim proceeds in the Netherlands
Нотлох баримт. The claimant generally bears the burden of proving the elements of the claim — the unlawful act, the damage, and the causal link. Careful documentation (photographs, medical reports, correspondence, expert evidence and witness statements) is therefore essential from an early stage.
Limitation periods (Article 3:310 BW). Timing is critical. As a general rule, a claim for damages lapses five years after the day on which the injured party became aware of both the damage and the identity of the liable person. In any event, a claim expires twenty years after the damaging event — an absolute long-stop that applies even where the injured party was unaware of the damage. Missing these deadlines can extinguish an otherwise valid claim.
Court route. Many disputes are resolved before trial through negotiation or a formal demand letter. If they are not, the claim is brought before the civil court; the competent court and procedure depend on the nature and value of the claim.
Даатгал. Liability insurance plays a central role in Dutch tort practice. Many claims — particularly for personal injury, traffic accidents and professional errors — are handled in the first instance with the wrongdoer’s liability insurer, which may pay compensation on the insured’s behalf.
Mediation and arbitration. Litigation is not the only path. Mediation can resolve disputes more quickly and preserve relationships, while arbitration offers a private, binding alternative to the ordinary courts, often used in commercial matters.
Defences. A defendant may dispute any of the required elements — for instance, arguing that the conduct was not unlawful, that it cannot be attributed to them, that the relativity requirement is not met, or that the causal link is absent. Common defences also include the expiry of the limitation period, contributory fault (eigen schuld) by the injured party — which can reduce the compensation payable — and consent or justification.
Leading Dutch cases in tort law
Dutch tort law has been shaped by a number of landmark decisions:
- Kelderluik (cellar-hatch). The source of the well-known Kelderluik factors, a set of considerations used to assess whether creating a dangerous situation is unlawful — including the likelihood that someone will fail to take care, the seriousness of the potential harm, and how burdensome precautions would have been.
- DES-dochters (DES daughters). A landmark decision on alternative and market-share causation, addressing how liability can be apportioned where damage was caused by a product but the specific producer cannot be identified.
- Hangmat. A decision on qualitative liability, notably in the context of liability between co-owners for damage caused by a defective structure.
- GeenStijl/Sanoma. An influential case concerning hyperlinking and unlawful publication, relevant to online content, copyright and the boundaries of lawful expression.
These cases remain reference points for how the general rule of Article 6:162 BW is applied to concrete situations.
Түгээмэл асуултууд
What is onrechtmatige daad in English?
It translates as “unlawful act” or “tort” — the Dutch civil-law basis for holding someone liable to compensate damage caused by wrongful conduct, under Article 6:162 BW.
What must I prove to win a tort claim in the Netherlands?
Generally: an unlawful act, its attributability to the wrongdoer, damage, a causal link between the act and the damage, and that the breached norm was meant to protect against the kind of damage you suffered (the relativity requirement, Article 6:163 BW).
How long do I have to bring a claim?
Usually five years from when you became aware of both the damage and the liable party, and no later than twenty years after the damaging event (Article 3:310 BW).
Can I claim for pain and suffering?
Yes. Non-material damages, known as smartengeld, may be awarded in the cases the law permits, alongside compensation for material losses.
Are punitive damages available?
No. Dutch law aims to repair the loss actually suffered; punitive damages are essentially not part of the system.
Get expert help with your liability claim
Tort claims turn on precise legal analysis — establishing each element, quantifying the damage, meeting the limitation periods and negotiating with insurers. The lawyers at Law & More advise both claimants and businesses on civil liability under Dutch law, from personal injury and professional negligence to product liability and reputational harm. Contact our liability lawyers to discuss your situation and the best strategy for recovering the compensation you are owed.
