What Does Article 6:109 of the Dutch Civil Code Say?
Article 6:109 of the Dutch Civil Code allows a court to reduce a statutory obligation to pay damages where awarding full compensation would lead to clearly unacceptable consequences. The reduction can never go below the amount for which the liable party is insured or was obliged to insure, and parties cannot contract out of the court's power.
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What Is the Text of Article 6:109?
English translation (unofficial, by the Dutch Law Institute):
1 If, in the given circumstances, including the nature of the liability, the legal relationship between the parties and the financial capacity of both of them, awarding full compensation would lead to clearly unacceptable consequences, the court may reduce a statutory obligation to pay damages.
2 The reduction may not result in an amount lower than the amount for which the debtor has covered his liability by insurance or was obliged to cover it.
3 Any stipulation contrary to paragraph 1 is void.
Dutch text (Burgerlijk Wetboek Book 6, article 109):
1 Indien toekenning van volledige schadevergoeding in de gegeven omstandigheden waaronder de aard van de aansprakelijkheid, de tussen partijen bestaande rechtsverhouding en hun beider draagkracht, tot kennelijk onaanvaardbare gevolgen zou leiden, kan de rechter een wettelijke verplichting tot schadevergoeding matigen.
2 De matiging mag niet geschieden tot een lager bedrag dan waarvoor de schuldenaar zijn aansprakelijkheid door verzekering heeft gedekt of verplicht was te dekken.
3 Ieder beding in strijd met lid 1 is nietig.
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 6:109 Mean?
Dutch damages law starts from full compensation: a party that is liable must put the injured party, as far as money can, in the position it would have been in without the event that caused the damage. Article 6:109 of the Dutch Civil Code is the safety valve in that system. It gives the court a discretionary power to reduce (matigen) a statutory obligation to pay damages when full compensation would, in the circumstances, lead to clearly unacceptable consequences.
The word "clearly" (kennelijk) sets a high threshold. It is not enough that full compensation is harsh, or that the liable party will have difficulty paying. The consequences must be such that awarding the full amount is plainly unacceptable.
The power applies to statutory obligations to pay damages, which includes liability for breach of contract under Article 6:74 and liability in tort under Article 6:162. It does not apply to a contractual obligation to pay an agreed sum; a penalty clause has its own reduction rule in Article 6:94.
Which Circumstances Does the Court Weigh?
Paragraph 1 names three circumstances in particular, but the list is open ("including"):
- The nature of the liability, for example whether the liability is based on fault or is a strict liability.
- The legal relationship between the parties, for example an employment relationship, a family relationship or an arm's length commercial contract.
- The financial capacity of both parties: not only whether the liable party can pay, but also what the loss means for the injured party.
The Supreme Court of the Netherlands has described the provision as a special application of the limiting effect of reasonableness and fairness in Article 6:248 and Article 6:2. The court looks at all the circumstances of the case and weighs the interests on both sides. Because the standard requires caution, the court must use the power with restraint.
Why Does Insurance Set a Floor?
Paragraph 2 prevents a reduction that would only benefit an insurer. The court may not reduce the damages below the amount for which the liable party has insured its liability, or was obliged to insure it. Where liability insurance covers the claim, the harshness that Article 6:109 is designed to prevent usually does not arise, because the insurer, not the individual, pays.
The words "was obliged to cover" matter as well. A party that was legally required to take out liability insurance, but did not, cannot rely on the absence of cover to obtain a reduction below the amount it should have insured.
Can Parties Exclude Article 6:109 by Contract?
No. Under paragraph 3 any stipulation contrary to paragraph 1 is void. Parties can limit or exclude liability by contract, for example with an exemption clause, but they cannot take away the court's power to reduce a statutory damages obligation that would otherwise lead to clearly unacceptable consequences.
How Is Article 6:109 Applied in Practice?
A reduction is exceptional. The party asking for it must put forward the circumstances that justify it, and the court must explain its decision in a way that makes the reasoning verifiable. In 2024 the Supreme Court confirmed three points on the identical provision of the Civil Code of Curaçao:
- Reduction is not limited to, or mainly intended for, strict liability. It can also apply where the liable party is at fault, even to a high degree.
- As a rule, the court first establishes the full amount of the damage and then decides on reduction, but for reasons of procedural economy it may take a different approach.
- The court must give reasons that make its decision understandable for the parties and for a higher court.
Article 6:109 should be distinguished from the reduction for contributory negligence in Article 6:101. Article 6:101 divides the damage according to how each party's circumstances contributed to it. Article 6:109 applies after the damages have been assessed and is a separate, discretionary correction.
Which Court Decisions Apply Article 6:109?
| Authority | Rule |
|---|---|
| Supreme Court of the Netherlands, 2024-10-04, ECLI:NL:HR:2024:1384 | The reduction power is a special application of the limiting effect of reasonableness and fairness and must be used with restraint, weighing all circumstances. It is not limited to strict liability and can apply despite a high degree of fault; as a rule the full damage is established first, and the decision must be properly reasoned. (Decided on the identical Article 6:109 of the Civil Code of Curacao.) |
Related Provisions and Guides
Related articles in this library:
- Article 6:74 of the Dutch Civil Code: Liability for non-performance
- 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)
- Article 6:248 of the Dutch Civil Code: Reasonableness and fairness in contracts
Further reading on dutch-law.com:
All articles: the Dutch Civil Code in English.