Claiming damages under Dutch law

Claiming damages under Dutch law is a common remedy when a debtor (schuldenaar) fails to fulfil his obligations and this non-performance is attributable to him. In such cases, the creditor (schuldeiser) may claim compensation of damages (schadevergoeding) under Dutch contract law. Claiming damages is often closely connected to the process of collecting debts in the Netherlands.

Under Dutch law, "damage" refers to the actual harm caused by the non-performance of a contractual obligation (wanprestatie) or by an unlawful act (onrechtmatige daad), such as a tort.

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Payment of damages under Dutch law

Damages must generally be paid with money. However, reparation of damages may in some cases be "natural" ("in natura" or "in kind") if the injured party has requested the court to grant this.

When the liable person, after the court has decided that damages should be paid "in natura", has not supplied such compensation within a reasonable period of time, the injured person regains the right to demand monetary compensation.

So, under Dutch law, reparation or damages in natura will only be awarded upon the demand of the damaged party. The court has the discretion to grant this request, or not.

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Material loss under Dutch law

Under Dutch law, damages can entail both losses incurred and profits missed (gederfde winst). This follows from article 6:96, paragraph 1 of the Dutch Civil Code (Burgerlijk Wetboek).

Article 6:96, paragraph 2 of the Dutch Civil Code sets out the categories of costs that may be claimed as damages:

1. the reasonable costs to prevent or mitigate damages which could be expected as a result of the event giving rise to liability
2. the reasonable costs incurred in assessing the nature and scope of damage and liability
3. the reasonable costs incurred in obtaining extra-judicial payment.

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Determining damages under Dutch law

Under Dutch civil law, the basic principle for determining the damages that must be repaired is that the damaged party must be placed in the same situation as the one in which he would have been if the event causing the damage had not taken place.

It follows that only damages that have actually been suffered must be repaired under Dutch law. This damage must also be fully compensated.

An exception to the rule that only damage actually suffered should be repaired is the calculation of damage based on the so-called abstract method of determining damage. When damage is determined in accordance with the abstract method, objective criteria are used, irrespective of whether the damaged party really suffered these damages.

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Profit enjoyed by the party liable under Dutch law

Under Dutch civil law, the profit that the liable party has enjoyed as a result of a failure in the performance of a contract (overeenkomst), or due to an unlawful act, is not part of the damage suffered by the victim. This profit (or benefit) may, however, under certain circumstances be claimed by the innocent party.

Article 6:104 of the Dutch Civil Code provides that when a person who is liable towards another on the basis of an unlawful act or a failure in the performance of an obligation has derived profit from that act or failure, the court may determine the damage according to the sum of that profit or part thereof.

In order to apply this rule, the claiming party is required to prove that he indeed has suffered damages. He does not, however, need to prove the extent of these damages. This rule is mainly used in cases involving violations of intellectual property rights.

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Estimation of damage under Dutch law

The court (rechter) may reduce the obligation to pay damages on the grounds of reasonableness. Under Dutch law, the court shall assess the damage in the manner most appropriate to its nature.

When the extent of the damage cannot be determined precisely, it is estimated by the Dutch court. Article 6:97 of the Dutch Civil Code provides:

The court estimates the extent of the damage in the way which is most consistent with the nature of the damage caused. Where the extent of the damage cannot be assessed exactly, it shall be estimated.

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Frequently asked questions about claiming damages under Dutch law

What types of damages can be claimed under Dutch law?

Under Dutch law, damages can include both losses incurred and profits missed. Article 6:96 of the Dutch Civil Code also allows claims for costs to prevent or mitigate damage, costs to assess damage and liability, and costs for obtaining extra-judicial payment.

Can damages be paid in kind instead of money under Dutch law?

Yes, under Dutch law the injured party may request the court to award compensation in kind (in natura) instead of money. However, the court has discretion to grant or refuse this request. If the liable party fails to provide compensation in kind within a reasonable time, the injured party may demand monetary compensation instead.

How does a Dutch court determine the amount of damages?

A Dutch court assesses the damage in the manner most consistent with its nature. If the exact extent of the damage cannot be determined, the court will estimate it under Article 6:97 of the Dutch Civil Code. The court may also reduce the obligation to pay damages on the grounds of reasonableness.

Can a claimant recover the profits made by the liable party?

Yes, under Article 6:104 of the Dutch Civil Code, the court may calculate damages based on the profit the liable party derived from the breach or unlawful act. The claimant must prove that damage was suffered, but does not need to prove the exact amount. This rule is often applied in intellectual property cases.

What is the basic principle for calculating damages under Dutch law?

The basic principle is that the injured party must be placed in the same position as if the damaging event had not occurred. Only damages that have actually been suffered must be compensated, and this compensation must be full. An exception is the abstract method, where objective criteria are used regardless of the actual loss.