What Does Article 6:97 of the Dutch Civil Code Say?
Article 6:97 of the Dutch Civil Code gives the court a wide discretion in assessing damages. The court chooses the method that best fits the nature of the damage, and where the exact amount cannot be established, it estimates it. A claim therefore does not fail merely because the precise figure is uncertain.
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What Is the Text of Article 6:97?
English translation (unofficial, by the Dutch Law Institute):
The court assesses the damage in the manner most consistent with its nature. If the extent of the damage cannot be determined precisely, it is estimated.
Dutch text (Burgerlijk Wetboek Book 6, article 97):
De rechter begroot de schade op de wijze die het meest met de aard ervan in overeenstemming is. Kan de omvang van de schade niet nauwkeurig worden vastgesteld, dan wordt zij geschat.
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 6:97 of the Dutch Civil Code Mean?
Once liability and attribution are settled, the court has to put a figure on the damage. Article 6:97 contains two rules for that stage. The first gives the court freedom of method: it assesses (begroot) the damage in the way most consistent with its nature. The second removes a common obstacle: if the extent of the damage cannot be determined precisely, the court estimates (schat) it.
The article is short, but its effect is considerable. Dutch law does not require a claimant to prove every euro with mathematical precision. Where loss is certain in principle but its size depends on uncertain factors, such as future turnover, the court may estimate it rather than dismiss the claim.
Which Method Does the Court Use to Assess Damages?
The statute does not prescribe a method. The court chooses the approach that suits the damage in question. Depending on the case, that may be a calculation of actual costs incurred, a comparison between the financial position after the event and the position the injured party would have been in without it, or a more abstract calculation.
This freedom does not relieve the claimant of the duty to state and substantiate the facts on which the damage is based. The claimant must give the court enough to work with. What Article 6:97 changes is the consequence of residual uncertainty: it is resolved by estimation rather than to the claimant's detriment.
When Can the Court Estimate Damages?
The second sentence applies where the extent of the damage "cannot be determined precisely". It is typically relevant for lost profit, loss of earning capacity and other future or hypothetical losses. The estimate must be reasoned: the court has to explain how it arrived at the figure.
Two related articles give the court further tools. Under Article 6:104 of the Dutch Civil Code, where the liable party has made a profit through the wrongful act or non-performance, the court may, at the injured party's request, assess the damage at the amount of that profit or part of it. Under Article 6:105, the assessment of damage that has not yet occurred may be postponed, or made in advance after weighing the good and bad chances, and the court may order a lump sum or periodic payments.
How Does Article 6:97 Relate to the Other Damages Articles?
Article 6:97 comes at the end of the analysis. Which heads of loss count is determined by Article 6:96 of the Dutch Civil Code and, for non-pecuniary loss, Article 6:106 of the Dutch Civil Code. Which losses can be attributed to the liable party is decided under Article 6:98 of the Dutch Civil Code. Before the final figure is set, benefits from the same event may have to be deducted under Article 6:100 of the Dutch Civil Code, and the amount may be reduced for contributory fault under Article 6:101 of the Dutch Civil Code.
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 6:100 of the Dutch Civil Code: Offsetting benefits against damage
- Article 6:101 of the Dutch Civil Code: Contributory fault and apportionment
- Article 6:106 of the Dutch Civil Code: Non-pecuniary damage
Further reading on dutch-law.com:
All articles: the Dutch Civil Code in English.