What Does Article 6:162 of the Dutch Civil Code Say?
Article 6:162 of the Dutch Civil Code is the general rule of tort liability in the Netherlands (onrechtmatige daad). A person who commits an unlawful act against another that can be attributed to him must compensate the damage the other suffers as a result. An act is unlawful if it infringes a right, breaches a statutory duty, or breaches unwritten standards of proper social conduct, unless there is a ground of justification.
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What Is the Text of Article 6:162?
English translation (unofficial, by the Dutch Law Institute):
1 A person who commits an unlawful act against another which can be attributed to him must compensate the damage which the other suffers as a consequence.
2 The following are regarded as an unlawful act: an infringement of a right, and an act or omission in breach of a statutory duty or of what according to unwritten law is appropriate in society, all this unless there is a ground of justification.
3 An unlawful act can be attributed to the person who committed it if it is due to his fault or to a cause for which he is responsible by law or according to generally accepted views.
Dutch text (Burgerlijk Wetboek Book 6, article 162):
1 Hij die jegens een ander een onrechtmatige daad pleegt, welke hem kan worden toegerekend, is verplicht de schade die de ander dientengevolge lijdt, te vergoeden.
2 Als onrechtmatige daad worden aangemerkt een inbreuk op een recht en een doen of nalaten in strijd met een wettelijke plicht of met hetgeen volgens ongeschreven recht in het maatschappelijk verkeer betaamt, een en ander behoudens de aanwezigheid van een rechtvaardigingsgrond.
3 Een onrechtmatige daad kan aan de dader worden toegerekend, indien zij te wijten is aan zijn schuld of aan een oorzaak welke krachtens de wet of de in het verkeer geldende opvattingen voor zijn rekening komt.
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 6:162 Mean?
Article 6:162 of the Dutch Civil Code is the central provision of Dutch tort law. Where the English common law has separate torts such as negligence, nuisance and trespass, Dutch law has one general rule: liability for an unlawful act (onrechtmatige daad). Whether conduct gives rise to liability depends on the open standards in paragraph 2 and on the attribution rule in paragraph 3.
The article applies between parties who have no contract, and it can also apply between contracting parties where the conduct is unlawful independently of the contract, for example in the pre-contractual phase or when negotiations are broken off.
What Are the Requirements for Liability under Article 6:162?
A claim under Article 6:162 succeeds only if all of the following are established:
- An unlawful act (paragraph 2).
- Attribution of that act to the person who committed it (paragraph 3).
- Damage suffered by the claimant.
- Causation: the damage must be a consequence of the act (paragraph 1), and the scope of the damage that can be attributed follows from Article 6:98.
- Relativity: the norm that was breached must serve to protect against the damage as the claimant suffered it, under Article 6:163.
The claimant bears the burden of proof for these elements under the general rule of Dutch civil procedure. Contributory negligence of the claimant can reduce the claim under Article 6:101.
When Is an Act Unlawful?
Paragraph 2 lists three categories:
- Infringement of a right, such as a property right or a right of personality.
- Breach of a statutory duty: an act or omission contrary to a rule laid down by or under statute.
- Breach of unwritten social standards: conduct contrary to what, according to unwritten law, is appropriate in society (maatschappelijke zorgvuldigheid). This is the category most claims rely on.
The third category goes back to the Supreme Court's judgment in Lindenbaum/Cohen (1919), which held that an unlawful act includes conduct contrary to the care that is appropriate in society towards another person or property. The current text of paragraph 2 codifies that approach. An act that falls within one of the categories is still not unlawful if there is a ground of justification (rechtvaardigingsgrond). The Code does not list those grounds exhaustively.
How Do Courts Decide What Care Is Required?
For the open standard of proper social conduct, the leading authority remains the Supreme Court's Kelderluik judgment (1965), about a trapdoor left open in a passage in a café. The Court held that whether a person who creates a situation that is dangerous to others who do not pay full attention must take precautions depends on the circumstances of the case. Relevant are the probability that the required attention and care will not be observed, the likelihood that accidents will result, the seriousness of the possible consequences, and how burdensome the safety measures would be.
These factors are still used to decide whether creating a risk was unlawful, for example in claims about unsafe premises, road situations and workplace hazards. See also employer liability for work accidents.
When Can an Unlawful Act Be Attributed?
Under paragraph 3 an unlawful act is attributed to the person who committed it in two situations. The first is fault (schuld): the person could and should have acted differently. The second is a cause for which the person is responsible by law or according to generally accepted views, even without fault. This second route makes liability possible where a person cannot be personally blamed but the risk is nevertheless theirs.
Articles 6:169 to 6:183 of the Dutch Civil Code add specific forms of liability for the conduct of others and for things, such as the employer's liability for employees in Article 6:170 and strict liabilities for dangerous things and substances in Articles 6:173 to 6:175.
How Long Do You Have to Bring a Tort Claim?
A claim for damages prescribes five years after the day following the day on which the injured party became aware of both the damage and the liable person, and in any event twenty years after the event that caused the damage, under Article 3:310 of the Dutch Civil Code (1). Special rules apply to certain types of damage. See limitation periods under Dutch law.
Which Court Decisions Apply Article 6:162?
| Authority | Rule |
|---|---|
| Supreme Court of the Netherlands, 1919-01-31, ECLI:NL:HR:1919:AG1776 (Lindenbaum/Cohen) | An unlawful act includes not only an infringement of another's right or a breach of the actor's legal duty, but also conduct contrary to good morals or to the care that is appropriate in society towards another person or property. Decided under the predecessor of Article 6:162; the current paragraph 2 codifies it. |
| Supreme Court of the Netherlands, 1965-11-05, ECLI:NL:HR:1965:AB7079 (Kelderluik) | Whether a person who creates a danger for others must take precautions depends on the circumstances, including the probability of inattention, the likelihood of accidents, the seriousness of the consequences and how burdensome the precautions would be. |
Related Provisions and Guides
Related articles in this library:
- Article 6:98 of the Dutch Civil Code: Causation and the scope of liability
- Article 6:101 of the Dutch Civil Code: Contributory fault and apportionment
- Article 6:106 of the Dutch Civil Code: Non-pecuniary damage
- Article 6:163 of the Dutch Civil Code: Relativity requirement
Further reading on dutch-law.com:
- claiming damages under Dutch law
- pre-contractual liability
- employer liability for work accidents
- limitation periods under Dutch law
All articles: the Dutch Civil Code in English.