What Does Article 6:106 of the Dutch Civil Code Say?
Article 6:106 of the Dutch Civil Code lists the situations in which a person can claim compensation for loss that is not financial, often called pain and suffering or immaterial damage (smartengeld). The amount is set in accordance with fairness. The three grounds are an intention to cause such loss, harm to the person, and harm to the memory of a deceased close relative.
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What Is the Text of Article 6:106?
English translation (unofficial, by the Dutch Law Institute):
For loss that does not consist of pecuniary loss, the injured party is entitled to compensation to be determined in accordance with fairness:
- a. if the liable person intended to cause such loss;
- b. if the injured party has suffered physical injury, has been harmed in his honour or reputation or has otherwise been harmed in his person;
- c. if the loss consists of harm to the memory of a deceased person and was inflicted on the spouse not separated from bed and board, the registered partner or a blood relative up to the second degree of the deceased, provided that the harm occurred in a manner that would have entitled the deceased, had he still been alive, to compensation for harm to his honour or reputation.
Dutch text (Burgerlijk Wetboek Book 6, article 106):
Voor nadeel dat niet in vermogensschade bestaat, heeft de benadeelde recht op een naar billijkheid vast te stellen schadevergoeding:
- a. indien de aansprakelijke persoon het oogmerk had zodanig nadeel toe te brengen;
- b. indien de benadeelde lichamelijk letsel heeft opgelopen, in zijn eer of goede naam is geschaad of op andere wijze in zijn persoon is aangetast;
- c. indien het nadeel gelegen is in aantasting van de nagedachtenis van een overledene en toegebracht is aan de niet van tafel en bed gescheiden echtgenoot, de geregistreerde partner of een bloedverwant tot in de tweede graad van de overledene, mits de aantasting plaatsvond op een wijze die de overledene, ware hij nog in leven geweest, recht zou hebben gegeven op schadevergoeding wegens het schaden van zijn eer of goede naam.
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 6:106 of the Dutch Civil Code Mean?
Under Article 6:95 of the Dutch Civil Code, damage to be compensated consists of pecuniary loss and other loss, the latter only to the extent the law confers a right to it. Article 6:106 is the main provision conferring that right. It covers non-pecuniary loss (immateriële schade), often referred to as smartengeld: pain, suffering, distress and loss of enjoyment of life.
The compensation is to be determined "in accordance with fairness" (naar billijkheid). There is no fixed tariff in the article itself; the court sets an amount in the light of all the circumstances.
When Can Compensation for Non-Pecuniary Damage Be Claimed?
The article lists three grounds.
- (a) Intent. The liable person intended to cause such loss.
- (b) Harm to the person. The injured party has suffered physical injury, has been harmed in his honour or reputation, or has otherwise been harmed in his person. This is the ground on which most claims are based.
- (c) Harm to the memory of a deceased person. Certain close relatives can claim where the memory of the deceased was harmed in a way that would have given the deceased a claim for harm to honour or reputation.
What Counts as Being Harmed in One's Person?
The phrase "otherwise been harmed in his person" in ground (b) has been interpreted by the Supreme Court. In a 2019 judgment it held that there is such harm in any event where the injured party has suffered mental injury, and that whoever relies on this must put forward sufficiently concrete facts from which, by objective standards, the existence of mental injury can be established. In addition, the nature and seriousness of the breach and of its consequences may mean that there is harm to the person without established mental injury. In principle this must be substantiated with concrete facts, but in some cases the relevant adverse consequences are so obvious that harm to the person can be assumed.
The judgment referred to Article 6:106(1)(b), the numbering at the time; the ground now appears as Article 6:106(b), with the same wording.
Which Other Articles Deal with Non-Pecuniary Damage?
Article 6:95(2) of the Dutch Civil Code provides that the right to compensation for non-pecuniary loss cannot be attached, and that for its transfer by universal title it is sufficient that the person entitled has told the other party that he claims it. Article 6:107(1)(b) provides for fixed amounts, set by order in council, for non-pecuniary loss suffered by close relatives of a person who has suffered serious and permanent injury.
Whether a particular non-pecuniary loss can be attributed to the liable party is decided under Article 6:98 of the Dutch Civil Code, and a contribution by the injured party reduces the claim under Article 6:101 of the Dutch Civil Code. Pecuniary loss is dealt with in Article 6:96 of the Dutch Civil Code.
Which Court Decisions Apply Article 6:106?
| Authority | Rule |
|---|---|
| Supreme Court of the Netherlands, 2019-03-15, ECLI:NL:HR:2019:376 | There is harm to the person 'in another way' in any event where mental injury is established by objective standards; the nature and seriousness of the breach and its consequences can also amount to such harm, normally to be substantiated with concrete facts. |
Related Provisions and Guides
Related articles in this library:
- Article 6:96 of the Dutch Civil Code: Pecuniary loss and recoverable costs
- Article 6:98 of the Dutch Civil Code: Causation and the scope of liability
- Article 6:101 of the Dutch Civil Code: Contributory fault and apportionment
- 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.