What Does Article 6:101 of the Dutch Civil Code Say?
Article 6:101 of the Dutch Civil Code reduces the compensation when the damage was partly caused by a circumstance attributable to the injured party. The damage is first divided according to how much each party's circumstances contributed to it. The court then departs from that division, or even removes or restores the whole claim, if fairness requires it because of the differing seriousness of the faults or other circumstances.
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What Is the Text of Article 6:101?
English translation (unofficial, by the Dutch Law Institute):
1 Where the damage is partly a consequence of a circumstance that can be attributed to the injured party, the obligation to pay compensation is reduced by apportioning the damage between the injured party and the person liable to pay compensation in proportion to the degree to which the circumstances attributable to each of them contributed to the damage, provided that a different apportionment is made, or the obligation to pay compensation lapses entirely or remains in full, if fairness so requires in view of the differing seriousness of the faults committed or other circumstances of the case.
2 Where the obligation to pay compensation concerns damage caused to property that a third party held in its power on behalf of the injured party, circumstances that can be attributed to the third party are attributed to the injured party in applying the preceding paragraph.
Dutch text (Burgerlijk Wetboek Book 6, article 101):
1 Wanneer de schade mede een gevolg is van een omstandigheid die aan de benadeelde kan worden toegerekend, wordt de vergoedingsplicht verminderd door de schade over de benadeelde en de vergoedingsplichtige te verdelen in evenredigheid met de mate waarin de aan ieder toe te rekenen omstandigheden tot de schade hebben bijgedragen, met dien verstande dat een andere verdeling plaatsvindt of de vergoedingsplicht geheel vervalt of in stand blijft, indien de billijkheid dit wegens de uiteenlopende ernst van de gemaakte fouten of andere omstandigheden van het geval eist.
2 Betreft de vergoedingsplicht schade, toegebracht aan een zaak die een derde voor de benadeelde in zijn macht had, dan worden bij toepassing van het vorige lid omstandigheden die aan de derde toegerekend kunnen worden, toegerekend aan de benadeelde.
Dutch text as in force from 16 July 2026, taken from wetten.overheid.nl, the official source of Dutch legislation. The English translation is not official; in case of doubt the Dutch text prevails.
What Does Article 6:101 of the Dutch Civil Code Mean?
Article 6:101 is the Dutch rule on contributory fault (eigen schuld). It applies when the damage is partly a consequence of a circumstance attributable to the injured party. The wording is broader than fault: a circumstance can be attributed to the injured party because of its own fault, but also because it is for that party's account on another basis.
The article applies to all statutory obligations to pay damages, both for non-performance of a contract and for a wrongful act. In a contractual setting it is often discussed together with the duty to mitigate: a creditor who fails to take reasonable steps to limit the loss may find part of the damage attributed to itself.
How Is Damage Apportioned under Article 6:101?
The article prescribes two steps.
- Causal apportionment. The damage is divided between the injured party and the liable party in proportion to the degree to which the circumstances attributable to each of them contributed to the damage.
- Fairness correction (billijkheidscorrectie). The court makes a different apportionment, or lets the obligation to pay lapse entirely or remain in full, if fairness so requires because of the differing seriousness of the faults committed or other circumstances of the case.
The second step can work in either direction. Where the liable party's fault was much more serious than the injured party's, fairness may shift the burden towards the liable party, even to the point of full compensation. Where the injured party's conduct was the more serious, the claim may be reduced further or disappear.
When Is a Third Party's Conduct Attributed to the Injured Party?
Paragraph 2 contains a specific rule for damage to property that a third party held on behalf of the injured party. Circumstances attributable to that third party are then attributed to the injured party. An owner whose property was damaged while in the care of someone holding it on the owner's behalf cannot escape the contributory fault of that person in the apportionment.
How Does Article 6:101 Work with Several Liable Parties?
Where two or more persons are liable for the same damage, Article 6:102 of the Dutch Civil Code makes them jointly and severally liable. Paragraph 2 of that article provides that, where the injured party also contributed to the damage, Article 6:101 is applied to the obligation of each liable person separately, but the injured party cannot recover more in total than if only one person had been liable for the circumstances on which their obligations rest. Article 6:102(1) also uses the apportionment method of Article 6:101 to divide the damage between the liable persons themselves.
How Does Article 6:101 Relate to the Other Damages Articles?
Contributory fault is applied after the damage has been attributed under Article 6:98 of the Dutch Civil Code and before the final amount is set under Article 6:97 of the Dutch Civil Code. It is distinct from the deduction of benefits under Article 6:100 of the Dutch Civil Code: Article 6:100 deducts an advantage the injured party received, Article 6:101 reduces the claim because the injured party contributed to the loss.
Related Provisions and Guides
Related articles in this library:
- Article 6:98 of the Dutch Civil Code: Causation and the scope of liability
- Article 6:100 of the Dutch Civil Code: Offsetting benefits against damage
- Article 6:97 of the Dutch Civil Code: Assessment and estimation of damages
- Article 6:74 of the Dutch Civil Code: Liability for non-performance
- Article 6:162 of the Dutch Civil Code: Tort (unlawful act)
Further reading on dutch-law.com:
All articles: the Dutch Civil Code in English.