Tort

Tort: liability
Liability  can arise in different ways. The two most common and well-known are tort liability and contractual liability. In both cases, a claim or obligation may arise from damages. A lawyer handles liability cases and is happy to assist you. Through mediation, negotiation or litigation, a lawyer will do everything to bring your case to a successful conclusion.

What is a tort?
A tort is a:

• Infringement of a right; or
• An act or omission in violation of a legal obligation; or
• An act or omission contrary to what is befitting society according to unwritten law.

Countless acts can be classified as unlawful acts. An example is kicking a window with a football. Another example is hit a cyclist with a car. Failure to take precautions can also constitute an unlawful act: leaving a basement hatch open without deposition.

The 5 requirements
The unlawful act is described in Article 6:162 of the Dutch Civil Code (BW). This provision states that a person who commits an unlawful act against another person is obliged to compensate the damage suffered by the other person as a result. For a tort action to succeed, all of the following five requirements must be met:

• unlawfulness;
• imptibility;
• damage;
• causality; and
• relativity.

Unlawfulness
The law makes a distinction between three acts that constitute an unlawful act: an infringement of a right, an act or omission contrary to a legal obligation and an act or omission contrary to what is appropriate in society according to unwritten law. The infringement of a right can include, for example, infringement of intellectual property (such as a trademark right or copyright), the right to privacy, the right to physical integrity and the right to an undisturbed enjoyment of property. Not every infringement immediately results in an unlawful act; some inconvenience will have to be tolerated. Whether the nuisance  is unlawful will always depend on the severity and duration of the nuisance and the circumstances under which the nuisance takes place.

Imputability
The unlawful act must be imputable to the perpetrator. Imputability exists if the offender is at fault for his conduct or the unlawful act is in his sphere of risk. An unlawful conduct attributable to the perpetrator is also called 'an error'.

Damage
The law does not define the concept of damage. However, it is included that the damage that must be compensated on the basis of a legal obligation to pay compensation consists of 'financial loss and other disadvantage'. Financial loss includes both loss suffered and loss of profit. With the concept of other disadvantage, the law mainly refers to immaterial damage. The presence of damage is generally quickly assumed.

Causality
The causal link concerns the relationship between the cause (the unlawful act) and the consequence of the damage. This connection is expressed in the definition of tort in the law in the word 'as a result'. In principle, it is the injured party who must state and, if necessary, make it plausible that this link exists.

Relativity
The relative aspect of unlawfulness means that the standard violated by the offender must be written to protect the infringed interest. The principle of relativism is laid down in Article 6:163 of the Dutch Civil Code: "there is no obligation to pay compensation if the violated standard is not intended to protect against the damage suffered by the injured party." For example, in a classic judgment of the Supreme Court (the Dental Judgment), it was decided that the practice of practicing the profession of dentist without the required diploma is unlawful, but in principle not in relation to qualified dentists.

If all the above five requirements are met, then there is an unlawful act and the perpetrator of this unlawful act is legally liable, which creates a claim for damages.

The role of AGA Lawyers
A lawyer of AGA Lawyers offers assistance in most cases within contract law. In the event of a conflict concerning contract law, an expert lawyer is at your side. Together with you, the lawyer determines the right approach and ensures the best possible solution and result. Advising, mediating, litigating, negotiating or drafting legal documents, AGA lawyers arrange it for you.

Contact AGA Lawyers
The contract lawyers of AGA lawyers can do a lot for you, such as guiding you throughout the entire process. Feel free to contact one of our expert contract law lawyers for a 1st free intake interview.

TELEPHONE: 040-8444523  (1st intake interview free of charge and without obligation) (Available Mon to Fri between 09.00h and 21.00h). We can also be reached by e-mail:
E-MAIL:  info@agajuristen.nl or contact form on the right side of our website.

More information
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