What Does Article 6:98 of the Dutch Civil Code Say?
Article 6:98 of the Dutch Civil Code decides how far a liable party must compensate the consequences of the event that made it liable. Only damage that can reasonably be attributed to that event, taking account of the nature of the liability and of the damage, is recoverable. It is the Dutch rule on the legal scope of causation, and it applies to contractual and non-contractual liability alike.
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What Is the Text of Article 6:98?
English translation (unofficial, by the Dutch Law Institute):
Only damage that is connected with the event on which the debtor's liability is based in such a way that it can be attributed to the debtor as a consequence of that event, having regard also to the nature of the liability and of the damage, qualifies for compensation.
Dutch text (Burgerlijk Wetboek Book 6, article 98):
Voor vergoeding komt slechts in aanmerking schade die in zodanig verband staat met de gebeurtenis waarop de aansprakelijkheid van de schuldenaar berust, dat zij hem, mede gezien de aard van de aansprakelijkheid en van de schade, als een gevolg van deze gebeurtenis kan worden toegerekend.
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 6:98 of the Dutch Civil Code Mean?
Article 6:98 answers a question that arises in every damages claim once liability has been established: which of the consequences of the event must the liable party pay for? A breach of contract or a wrongful act can set off a chain of losses, some immediate and some remote. The article does not say that all of them are recoverable, and it does not say that only foreseeable losses are. It says that damage qualifies for compensation if it can be attributed (toegerekend) to the liable party as a consequence of the event, having regard to the nature of the liability and of the damage.
The word "debtor" (schuldenaar) in the article refers to whoever is obliged to pay damages, whatever the source of that obligation. The article sits in the general section on the statutory obligation to pay damages (Book 6, Title 1, Section 10) and therefore applies both to damages for non-performance of a contract under Article 6:74 of the Dutch Civil Code and to damages for a wrongful act under Article 6:162 of the Dutch Civil Code.
How Does Causation Work under Dutch Law?
Dutch causation analysis has two layers. The first is factual: the damage must be a consequence of the event, in the sense that without the event the damage would not have occurred (conditio sine qua non). The words "as a consequence of that event" in the article presuppose that link. The second layer is the one Article 6:98 regulates: given that the event caused the damage in fact, can the damage fairly be attributed to the liable party?
That second question is a legal evaluation, not a fact to be proved. The court weighs the relevant factors and may attribute the whole damage, part of it, or none of it. Burden and evidence matter for the first layer; the second is decided by the court on the facts found.
Which Factors Decide Whether Damage Is Attributed?
The article names two factors expressly: the nature of the liability and the nature of the damage. The Supreme Court of the Netherlands (Hoge Raad) has held that the question must be answered on the basis of objective factors such as these, and that what was foreseeable or probable on an objective view can also play a role (Avi Cranes, 2017, see below).
- Nature of the liability. Whether the liability rests on fault or is strict, whether it arises from a contract or from a wrongful act, and what the breached obligation or rule was meant to protect against.
- Nature of the damage. The kind of loss claimed, for example physical injury, damage to property, or lost profit. In Avi Cranes the court of appeal took into account that the claim concerned lost profit, and the Supreme Court accepted that as a relevant factor.
- Objective foreseeability. Not a separate test and not decisive on its own, but a factor that may be weighed with the others.
This makes Article 6:98 flexible by design. It does not ask one fixed question, such as "was this loss foreseeable when the contract was concluded". A party used to a single foreseeability rule should not assume that the same outcome follows under Dutch law.
How Is Article 6:98 Applied in Practice?
In a contractual claim, the analysis typically runs as follows. First, the creditor shows a failure in performance attributable to the debtor under Article 6:74 of the Dutch Civil Code. Second, the creditor shows the losses that followed from it and that they would not have occurred without the failure. Third, the court decides under Article 6:98 which of those losses can be attributed to the debtor. Only then are the amounts assessed, under Article 6:97 of the Dutch Civil Code.
The same structure applies in tort. What differs is the content of the factors: the protective scope of the rule that was breached, which in tort is also addressed by the relativity requirement of Article 6:163 of the Dutch Civil Code, and the kind of damage caused.
Three practical points follow. A claimant should explain not only what the loss is but why it can fairly be attributed to the defendant, with reference to the nature of the liability and of the damage. A defendant should argue attribution separately from the question of factual causation. And the court must give reasons if it attributes only part of the damage: the Supreme Court held in Avi Cranes that the fact that a contracting party did not act out of self-interest could not by itself justify attributing only part of the damage without the court examining the circumstances substantively.
How Does Article 6:98 Relate to the Other Damages Articles?
Article 6:98 is one of a group of rules in Book 6 on the extent of damages. Article 6:96 of the Dutch Civil Code defines pecuniary loss and the costs that count as such. Article 6:97 of the Dutch Civil Code tells the court how to assess the amount and allows estimation. Article 6:99 of the Dutch Civil Code deals with uncertainty about which of several liable persons caused the damage. Article 6:100 of the Dutch Civil Code requires benefits from the same event to be taken into account, and Article 6:101 of the Dutch Civil Code reduces the claim where the injured party contributed to the damage. Non-pecuniary loss is governed by Article 6:106 of the Dutch Civil Code.
One point from Avi Cranes concerns interest: whether statutory interest under Article 6:119 of the Dutch Civil Code is owed does not depend on whether that interest can be attributed in the sense of Article 6:98. The principal sum and the interest have to be determined separately.
Which Court Decisions Apply Article 6:98?
| Authority | Rule |
|---|---|
| Supreme Court of the Netherlands, 2017-02-10, ECLI:NL:HR:2017:214 (Avi Cranes) | Whether damage can be attributed under Article 6:98 is decided on objective factors such as the nature of the liability and of the damage; what was objectively foreseeable or probable may also play a role. Statutory interest is assessed separately from the principal sum. |
Related Provisions and Guides
Related articles in this library:
- Article 6:96 of the Dutch Civil Code: Pecuniary loss and recoverable costs
- Article 6:97 of the Dutch Civil Code: Assessment and estimation of damages
- Article 6:99 of the Dutch Civil Code: Alternative causation
- 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 6:74 of the Dutch Civil Code: Liability for non-performance
- Article 6:162 of the Dutch Civil Code: Tort (unlawful act)
- Article 6:163 of the Dutch Civil Code: Relativity requirement
- Article 6:119 of the Dutch Civil Code: Statutory interest on late payment
Further reading on dutch-law.com:
All articles: the Dutch Civil Code in English.