Tort law: Dutch law

Question 1

What does dutch law apply to (3)?

Answer 1

All dealings between persons, companies & associations (except relations with state’s institutions in official capacity)

Question 2

What is patrimonial law?

Answer 2

Law concerned with the rights/obligations that are valuable in money. Law of obligations is part of this (encompassing tort and contract law).

Question 3

Name 2 changes the dutch civil code has undergone

Answer 3

1. Book 4 of the Civil Code was replaced in 2003
2. The Civil Code has been a slightly altered translation of
   the Code Civil. Law professor Meijers was appointed in
   1947 to design a new civil code. He focussed on a
   systematic structure. Abolished the distinction between
   private and commercial law.

Question 4

Name 5 categories included in Meijers’ civil code

Answer 4

1. The legal person under Dutch law
2. Property and real rights
3. Law of obligations
4. Contract law
5. Dutch tort law

Question 5

Name 5 legal persons in dutch law:

What is the law of legal persons closely related to?

Answer 5

Five private legal persons are:

1. Vereniging or association.
2. Coöperatie or cooperative.
3. Onderlinge waarborgmaatschappij or association that provides insurance.
4. Naamloze vennootschap or unlimited company.
5. Stichting or foundation.

The law of legal persons is closely related to company law. Eg: a partnership is a contract between partners to establish cooperation.

Question 6

Make 4 distinctions between property and legal rights

What kind of system is the system of real rights?

What must happen in order to transfer property between people?

Answer 6

1. Rights to an object.
2. Rights to an object consist of rights to tangible objects
   and rights to intangibles such as copyright.
3. Rights of tangible objects are real rights.
4. Limited rights, consisting of servitude (the right to pass
   over land) and to usufruct (use land). These rights are
   absolute, meaning they exist regardless of owner.

The system of real rights is a closed system.

The owner must be qualified to dispose of the property, there must be a valid title and delivery of the property.

Question 7

What does the law of obligation concern?

Answer 7

It concerns all obligations (legal, contractual or moral). In order for an obligation to be considered legal, it needs to fit into one of these definitions. These definitions are often loosely interpreted because of the freedom of contract.

Question 8

What does contract law determine?

Answer 8

Obligations created intentionally through a juridical act (obligations on the law)

Question 9

What does tort law determine?

Answer 9

Obligations created directly from the law (obligations on the parties).

Question 10

What does dutch tort law deal with?

Name 2 types of tort liability

Name 4 things that must be determined for tort cases based on faults

Answer 10

With damage resulting from unlawful acts.

Recognises two types of tort liability: based on fault and based on risk.

For tort cases based on fault, four things must be determined:
1. Whether there is damage.
2. Whether there was unlawful conduct.
3. Whether this conduct is a person’s fault.
4. Whether there is a causal connection between the
unlawful conduct and the damage.

Question 11

What is the main form of damage? Give examples.

Distinguish between non-material and material damage

Define unlawful conduct and its liability

Answer 11

Patrimonial (material), (economic losses, deprivation of income or profit, hospital costs etc.)

Non-material cases regarding pain or emotional damage may also qualify for reparation. Material damage would be repaired fully while reparations for non-material damage is based on the judge’s decision. Purely emotional damage isn’t compensated.

‘Infringing a person’s right or violating a statutory duty’. Each party that contributes to the damage is liable to for the whole. This means multiple parties may pay full reparations. Unless there is a clear distinction between what different damages caused by different parties.

Question 12

What is alternative causality? Give a case example

What moral does tort law follow? Name 2 types of liability

Answer 12

Alternative causality is when it isn’t clear who specifically caused the damage (see DES Daughters).

Tort law follows the moral intuition that every person is accountable for their faults regardless of intention.

• Fault liability relies on determining risk.
• Strict liability is liability of the owner for damage caused by animals or objects, or liability of the employer for damage caused by the employee.

Question 13

How is parent liability determined?

Answer 13

Parents are liable for their children. A hypothetical test is used for children under 14: would a normal adult have been liable in this situation? if yes, the parents are liable. 14 and 15 year olds are liable for themselves, but so are their parents, if they were capable of preventing the act.

Question 14

How are traffic accidents classified?

hat is force majeure?

Answer 14

Most traffic accidents are covered by the general rules of tort liability. Liability will be shared to the extent to which each car contributed.

Between a car and a person, the driver is liable with the exception of force majeure. This is when the circumstances are beyond the control of the driver. If it is neither of the parties’ faults, the driver will be liable.

Question 15

How are traffic accidents classified?

hat is force majeure?

Answer 15

Most traffic accidents are covered by the general rules of tort liability. Liability will be shared to the extent to which each car contributed.

Between a car and a person, the driver is liable with the exception of force majeure. This is when the circumstances are beyond the control of the driver. If it is neither of the parties’ faults, the driver will be liable.

Question 16

Definition of an unlawful act

Answer 16

It is imputed to someone if it results from their fault. When one commits an unlawful act that causes damage to another, one must repair the damage.

Question 17

What acts are unlawful?

Answer 17

• Violation of a right.
• Act or omission violating statutory duty.
• Rule of unwritten law pertaining to proper social conduct.
  (Except when there is justification)

Question 18

What happens when a child/third person/group member/publisher is liable?

Answer 18

• Conduct of a child under fourteen years can’t be
  imputed to him. A child older than fourteen can still
  have an act imputed to him even under influence of
  mental or physical handicap.
• When a third person is also liable, they should
  contribute to the wrongdoers for the reparations.
• If a member of a group causes damage which could
  have been prevented by the other members, they are
  solidarily liable (together), paying equal reparations.
• When one is liable for publishing inaccurate or
  misleading data, he may be told to publish a correction.
  (Also applies if publisher was unaware of inaccuracy of
  the data).

Question 19

Describe parental/employer/master/representative/owner liability

Answer 19

• Parental authority over someone under fourteen leads to liability for the child’s unlawful conduct. Parental authority over someone fifteen or sixteen years leads to liability for unlawful conduct unless they could not have prevented the conduct.
• An employer is liable for an employee’s unlawful conduct, if the likelihood of this conduct is increased by the employer’s orders.
• A ‘master’ who is a natural person (outside of workplace) is liable for a ‘servants’ actions if they were acting in the performance of a duty which the master had ordered.
• When both the employer and employee are liable, the employee doesn’t have to pay reparations unless the damage results from the employee’s malice/conscious recklessness.
• If someone continues one’s business at their orders and is liable, the original person is also liable. If someone acts as a representative of another, they are both liable.
• The owner of an object that is known to be dangerous, and which does not meet set standards, is liable when danger occurs. The owner (determined by who is listed in the public register) of a construction which does not meet set standards, is liable when danger occurs.

Question 20

Give the legal question, arguments and judgment of the Kali mines case in the Court of Appeal of The Hague, 1986

Answer 20

Legal question:
‘Whether MDPA (Mines de Potasse d’Alsace) is acting unlawfully against market gardeners established in the Netherlands by discharging its waste salts into the Rhine. Dutch law should be applied’.

Arguments
Found incorrect that unwritten international law rules that form part of Dutch law would have a direct effect on the outcome, and therefore the decision should solely be based on Dutch municipal law. If MDPA is discharging large quantities of salt into the Rhine, causing foreseeable, constant and substantial damage, and is not prepared to bear the damage, they are acting carelessly. The French discharge licences regard the rights of third parties; users of the water. Rotterdam District Court decided that a tort could be taken, due to the magnitude of the discharges. MDPA argued that there were other solutions for market gardeners, such as rainwater collectors, while closing the mines would destroy its entire business. BUT it was consistently clarified that the Court was not requesting the closure of the mines, simply the payment of compensation.

Judgment
Market gardeners were suffering constant/foreseeable damage as a result of salt discharges. The license which regards the rights of third parties therefore is not protected from tort law because it does not consider the interests of all parties. MDPA did not observe duty of due care. Appeal was quashed, damages were requested from MDPA.

Question 21

Give the facts and arguments of the van Gerven, W. et al. case in the Hoge Raad, 1992

Answer 21

Facts
6 plaintiffs exposed to DES because their mothers took it while pregnant. Led to the development of cervical/vaginal cancer. 10 defendants were pharmaceutical companies who had put DES on the Dutch market at the time of their pregnancies. It wasn’t possible to prove that the DES taken was from the plaintiffs’ companies in particular, it could have come from other producers.

Arguments
The court worked on the presumptions that the pharmaceutical companies have each committed a fault by putting DES in circulation. Each DES daughter claims damages from each pharmaceutical company. They don’t act as a group. They should get compensation individually. The producers can seek contribution from each other with paying damages, though each producer is in principle liable to compensate the whole injury.