What Does Article 6:99 of the Dutch Civil Code Say?
Article 6:99 of the Dutch Civil Code deals with alternative causation. Where damage may have resulted from two or more events, each attributable to a different liable person, and it is certain that at least one of those events caused it, each of those persons must compensate the damage unless he proves that his event did not cause it. The injured party is protected against the impossibility of proving which of several wrongdoers caused the harm.
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What Is the Text of Article 6:99?
English translation (unofficial, by the Dutch Law Institute):
Where the damage may have resulted from two or more events for each of which a different person is liable, and it is established that the damage arose from at least one of these events, the obligation to compensate the damage rests on each of these persons, unless he proves that the damage is not the result of an event for which he himself is liable.
Dutch text (Burgerlijk Wetboek Book 6, article 99):
Kan de schade een gevolg zijn van twee of meer gebeurtenissen voor elk waarvan een andere persoon aansprakelijk is, en staat vast dat de schade door ten minste één van deze gebeurtenissen is ontstaan, dan rust de verplichting om de schade te vergoeden op ieder van deze personen, tenzij hij bewijst dat deze niet het gevolg is van een gebeurtenis waarvoor hijzelf aansprakelijk is.
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 6:99 of the Dutch Civil Code Mean?
The ordinary rule is that an injured party must prove that the defendant's conduct caused the damage. Article 6:99 creates an exception for a specific evidential problem: there are several possible causes, each attributable to a different person who is liable for it, and it is certain that one of them caused the damage, but not which one. Without a special rule, each defendant could point at the others and the injured party would recover nothing.
The article resolves that by placing the obligation to compensate on each of the persons concerned, while allowing each of them to escape by proving that the damage was not caused by the event for which he is liable. The burden of proof on causation is thus reversed for each defendant individually.
What Are the Requirements for Alternative Causation?
- Two or more events, each of which may have caused the damage.
- A different person liable for each event. Apart from the causal link, each person must be liable for his event, for example because it was a wrongful act.
- Certainty that at least one of the events caused the damage. The uncertainty must be limited to which of them did.
If these requirements are met, each person is liable for the whole damage unless he proves that the damage was not caused by his event. Where two or more persons are obliged to compensate the same damage, Article 6:102 of the Dutch Civil Code makes them jointly and severally liable, and apportions the damage between them internally.
How Did the Supreme Court Apply Article 6:99 in the DES Case?
The leading example is the DES case. Women whose mothers had taken the drug DES during pregnancy suffered harm, but could not establish which of the pharmaceutical companies had produced the tablets their mothers used. The court of appeal refused to apply Article 6:99 because no concrete conduct of a particular company towards a particular claimant had been shown.
The Supreme Court held that this reflected an incorrect view of the law. Looking at the text, purpose and legislative history of the article, the situation fell within its terms: it had to be assumed that each company that had put DES into circulation in the relevant period was liable for doing so, that the whole damage of each claimant could have arisen from each of these events, and that it had arisen from at least one of them. The Supreme Court also held that the rule of Article 6:99 already applied as existing law before the Civil Code entered into force in 1992, then leading to concurrent liability for the whole.
How Does Article 6:99 Relate to Article 6:98?
Article 6:99 concerns factual uncertainty about who caused the damage. Article 6:98 of the Dutch Civil Code concerns the legal question of how far damage caused by an event can be attributed to the liable party. Both may be relevant in the same case. The amount is then assessed under Article 6:97 of the Dutch Civil Code, and a contribution by the injured party is dealt with under Article 6:101 of the Dutch Civil Code, which Article 6:102 of the Dutch Civil Code (2) applies to each liable person separately where several are liable.
Which Court Decisions Apply Article 6:99?
| Authority | Rule |
|---|---|
| Supreme Court of the Netherlands, 1992-10-09, ECLI:NL:HR:1992:ZC0706 (DES-dochters) | Article 6:99 applies where each producer that put DES into circulation must be assumed liable, the whole damage could have arisen from each of these events and it arose from at least one of them; concrete conduct towards each individual claimant is not required. |
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 6:97 of the Dutch Civil Code: Assessment and estimation of damages
- 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.