Fault-based liability (foutaansprakelijkheid) is a fundamental doctrine within civil liability law and forms the legal basis for recovering damage that results from blameworthy conduct. The starting point is that anyone who causes damage to someone else through their own fault is obliged to compensate that damage. This principle reflects a deep-rooted sense of social norms: everyone bears responsibility for their own acts or omissions. Fault-based liability plays a role in many situations, ranging from traffic accidents to medical errors. The legal assessment always requires a test against various criteria, which are explained further below. This page describes the situation in the Netherlands.
What is fault-based liability?
Fault-based liability is a form of civil liability in which someone is obliged to compensate the damage that results from their own fault or from a fault for which they are held legally responsible. The starting point of this ground for liability is that every member of society is expected to behave as a normally careful and far-sighted person. When someone breaches that standard of conduct and causes damage as a result, an obligation to pay compensation arises. Fault-based liability is therefore founded on the idea that anyone who harms someone else through their own actions is obliged to put that damage right. As the Dutch saying goes: if you break the pot, you pay for the pot. This liability can arise both from unlawful acts (torts) and from breaches of contract. The common feature is always the blameworthy nature of the act or omission.
History of fault-based liability
Fault-based liability has a long history that goes back to Roman law, where the principle already applied that anyone who causes damage is, in certain cases, obliged to compensate it. In the Middle Ages, this idea was developed further within canon law and scholastic legal theory, with the emphasis on moral guilt and personal responsibility. With the rise of modern private law in the nineteenth century, particularly under the influence of the French Code Civil, fault-based liability acquired its classic form: compensation based on an unlawful act, fault and a causal link.
In the Netherlands, this approach is now laid down in the Dutch Civil Code (Burgerlijk Wetboek, BW). In recent decades, classic fault-based liability has been further refined and extended, among other things through the introduction of strict liability and the recognition of special situations such as group liability and liability for non-natural persons. Even so, fault-based liability remains a fundamental pillar of liability law, in which personal blame is central.
Legal basis of fault-based liability
The legal basis of fault-based liability can be found in the Dutch Civil Code, in particular in Book 6. The core provision is Article 6:162 BW, which sets out the requirements for liability for an unlawful act. In addition, there are various other provisions that give further shape to specific forms of fault-based liability or to special situations in which liability can arise. Together, these articles form the foundation of Dutch liability law. The most important statutory provisions relating to fault-based liability are listed below.
- Article 6:162 BW: determines when there is an unlawful act and what the requirements for it are.
- Article 6:163 BW: states that compensation is only owed if the breached standard is intended to protect against the damage as it was suffered.
- Article 6:164 BW: provides that children under the age of fourteen are not liable for their unlawful acts.
- Article 6:165 BW: provides that conduct carried out under the influence of a mental or physical disability (e.g. blindness or deafness) can still lead to liability.
- Article 6:166 BW: contains the rules on group liability for joint unlawful conduct.
- Article 6:167 BW: provides the option of a declaratory judgment (for example a correction after an inaccurate newspaper article) instead of the payment of compensation.
- Article 6:101 BW: governs how damage is shared when the victim is partly at fault.
- Article 6:98 BW: contains the standard for the causal link and determines which damage qualifies for compensation.
Conditions for fault-based liability
Fault-based liability rests on a number of constituent elements: an unlawful act, attributability and damage. First, it must be established that the conduct is contrary to a legal duty or a social norm. Next, it must be possible to attribute this conduct to the person who committed it, either on the basis of fault, or on the basis of generally accepted views in society or the law. In addition, the injured party must actually have suffered damage. Finally, there must be a causal link between the unlawful conduct and the damage suffered. Only when all these conditions have been met does an obligation to pay compensation arise.
Unlawful act
A first condition for fault-based liability is that there must be an unlawful act. Conduct is unlawful when it is contrary to a statutory duty, infringes someone else’s subjective right (such as the right of ownership or the right to physical integrity), or when it is contrary to what is considered proper in society according to unwritten law. This last category in particular requires a closer weighing of the risk that the conduct entails against the degree of care that can be expected from the person acting.
In this context, the Supreme Court of the Netherlands (Hoge Raad) set out a number of factors in the so-called Kelderluik judgment (the ‘cellar hatch’ case) that play a role in assessing unlawfulness. These are the likelihood that careless behaviour by others will cause damage, the seriousness of the possible consequences, how burdensome precautions are, and the degree of probability that such carelessness will occur. These so-called Kelderluik factors help to weigh the circumstances of the case and determine whether failing to take certain precautions can be regarded as unlawful in a specific case. These factors play an important role in, among other things, establishing liability for occupational diseases.
Attributability
In addition to unlawfulness, fault-based liability also requires that the act can be attributed to the person who committed it. Attribution can take place on various grounds. First, there is attribution on the basis of fault: the person must have been able to understand and avoid the unlawful act or omission. Factors such as how recognisable the risk was, the state of science and technology at the time of the act, how knowable the law was and how avoidable the mistake was all play a role here. Attribution can also take place on the basis of generally accepted views in society. This is the case when social norms mean that a certain act is at someone’s expense, even without fault.
In addition, attribution can be based on a statutory provision, as with liability for children or represented persons. Mental or physical disabilities deserve special attention: in principle they do not exclude attribution, unless they are so serious that there can no longer be any question of fault or of attribution according to generally accepted views in society. Young people can, in principle, also be liable, but the court will take their age and level of development into account when assessing attributability.
Damage
The existence of damage is an essential condition for fault-based liability to arise. Without damage, there is no obligation to pay compensation either. Simply put: the pot must actually be broken for someone to have to pay. In other words, the fact that the pot merely fell is not enough. Damage can, however, take many different forms. In legal terms, a distinction is made between financial loss and other harm, also called non-material damage. Financial loss covers all the adverse financial consequences of the unlawful act, such as loss suffered, loss of profit, costs of preventing or limiting damage and costs of establishing liability. Non-material damage concerns harm to the person, for example pain, grief or damage to someone’s honour or good name. This is also known as non-material damages (smartengeld). Financial loss is usually easier to establish. In any case, both the existence and the extent of the damage must be made sufficiently plausible by the person relying on fault-based liability.
Causal link
The causal link is the connection between the unlawful act and the damage: the damage must be the result of the unlawful conduct. This link is assessed using the so-called conditio sine qua non test, which means that the damage would not have occurred without the mistake. In civil law, however, this criterion is supplemented by a normative test, which assesses whether the damage can reasonably be attributed to the person who caused it. Factors here include whether the damage was foreseeable and whether there are intervening factors that may break the causal link. In cases of complex causation, such as medical errors or environmental damage, the court sometimes applies a heavier duty to substantiate or a reversal of the burden of proof to compensate for the victim’s disadvantage in terms of evidence. The existence of a causal link is therefore not merely a factual assessment but also a legal one, and that sometimes has far-reaching implications.
Limits to fault-based liability
Fault-based liability has its limits, and an important limiting concept is that of force majeure (overmacht). Force majeure occurs when a person does commit an unlawful act but is not to blame, because it was out of their power to act otherwise. This is a situation in which the act or omission was objectively unavoidable, even when the required care was taken. Think, for example, of a traffic accident caused by the driver suddenly falling ill without this being foreseeable. The driver may then have caused damage, but will not simply be liable for it.
The same applies to criminal liability. In such cases there is in fact no attributability, so there can be no fault-based liability (see above). However, force majeure is interpreted very strictly: only exceptional circumstances can lead to liability being excluded on this ground. In the case of contractual liability, the general terms and conditions can change how force majeure is interpreted, but this is not the case with classic liability outside such obligations.
Difference from other forms of liability
Fault-based liability differs from contractual liability in that it is based on the breach of general standards of care, whereas contractual liability arises from the failure to perform a specific contractual obligation. With strict liability, on the other hand, blameworthiness plays no role: you are liable on the basis of a special capacity or position, such as that of a parent, employer or owner of an animal or object. Whereas fault-based liability and contractual liability generally require fault or attributability, strict liability is precisely about bearing a social risk, regardless of whether there is any fault. These three forms of liability therefore each have their own scope, legal basis and requirements.
| Feature | Fault-based liability | Contractual liability | Strict liability |
|---|---|---|---|
| Basis | Unlawful act (Art. 6:162 BW) | Breach of contract (Art. 6:74 BW) | Special statutory provisions |
| Blameworthiness required | Yes | Yes | No |
| Relationship between parties | No contractual relationship needed | Based on a contractual relationship | No contractual relationship required |
| Attribution required | Yes, based on fault or generally accepted views in society | Yes, based on fault or the allocation of risk in the contract | No, liability follows from the law or a person’s capacity |
| Examples | Aggressive man hits his neighbour with a pan | Delivery of a defective product | Parent is liable for a child under 14 |
| Burden of proof | Victim must prove fault and damage | Victim must prove failure to perform and damage | Only damage and capacity need to be proven |
Applications of fault-based liability
Fault-based liability can arise in many different situations and takes many forms in practice. The common feature is always that there is damage resulting from blameworthy conduct that is regarded as unlawful (see above). Even so, the context in which the mistake occurs varies greatly: different standards apply on the road than in a hospital, and something different is expected of a parent or teacher than of a journalist or civil servant. The general rules of fault-based liability are therefore always applied in line with the circumstances of the case, the social position of the person involved and the nature of the act. This makes liability law a dynamic and nuanced area of law in which general principles are made concrete in specific contexts.
Fault-based liability in traffic
A higher duty of care applies in traffic: road users must behave in such a way that danger is avoided. Anyone who makes a traffic mistake, for example by running a red light or not keeping enough distance, can be held liable for the resulting damage. For motor vehicles, there is also a strict liability regime with regard to vulnerable road users, such as pedestrians and cyclists. In this context, fault-based liability is often combined with strict liability. The two forms of liability are therefore not separate from each other, but will often overlap in practice.
All about liability in traffic
Fault-based liability at work
Employers can be liable for mistakes by their employees that occur while they are carrying out their work (Art. 6:170 BW). In addition, employers have a duty of care to ensure a safe working environment. If an employee suffers damage due to a mistake by a colleague or due to inadequate safety measures, the employer can be held liable for this, unless they prove that they have fulfilled their duty of care. If the employer has not fulfilled their duty of care, they have made a mistake and are liable.
All about liability at work
Fault-based liability for a medical error
In a medical context, a high standard of professional conduct applies. A doctor who departs from the professional standard or makes a mistake during treatment can be liable for the damage the patient suffers. These are often complex cases in which it must be shown that there was a blameworthy mistake and that this mistake led to the damage. Problems of proof and medical causation make these kinds of cases legally challenging. That is why out-of-court solutions are often sought, such as settlements or submitting the case to a disputes committee.
Fault-based liability and children
Under certain conditions, children can themselves be held liable for unlawful acts. However, children under the age of 14 are in principle not liable themselves (Art. 6:164 BW). Their parents are, on the basis of Art. 6:169 BW, but this is a form of strict liability. So where fault-based liability stops, strict liability begins. Children aged 14 and 15 can be held liable themselves (fault-based liability). In addition, their parents are liable, unless they cannot be blamed for not having prevented the child’s behaviour (Art. 6:169(2) BW). That is not strict liability, but a presumption of fault: the parents must show themselves that they are not to blame. When assessing the mistake, the court takes into account the child’s age, understanding and development.
All about liability of and for children
Fault-based liability for unlawful publications
Journalists, media and private individuals can be liable for damage resulting from unlawful publications. This may involve slander, libel or invasion of privacy. In this context, freedom of expression on the one hand clashes with the right to protection of honour and good name on the other. The court weighs up the interests involved, taking into account factors such as the seriousness of the accusation, whether there is a factual basis for it and its relevance to society. The court can award compensation, but can also order the party that made the mistake to publish a correction.
Fault-based liability of government bodies
Government liability arises when an administrative body causes damage through unlawful conduct. This can be the result of physical acts (such as negligent supervision in a prison) as well as of unlawful decisions. The bar for this form of liability is high: the citizen must prove that the government has broken the law and that this breach has actually caused them damage. The special position of the government simply requires a cautious approach from the court, but even so, the government can certainly be forced to pay compensation.
All about liability for unlawful government acts
Fault-based liability for inadequate supervision or negligence
When someone suffers damage because someone else failed to supervise adequately or to intervene in time, there may be fault-based liability for negligence. Think of a supervisor who fails to notice a dangerous situation, or a landlord who fails to repair a known defect in a home. Failing to comply with duties of care or duties to warn can also lead to liability if this causes damage that was foreseeable and avoidable.
Fault-based liability in education
Teachers and educational institutions have a special duty of care towards their pupils. When a pupil suffers damage as a result of inadequate supervision or an unsafe situation at school, the school can be held liable for this. This also applies to the conduct of fellow pupils, if the school has not done enough to prevent escalation. The level of supervision must be adapted to the age and behaviour of the pupils. More supervision can be expected for young children than for seventeen-year-olds.
All about liability in education
Fault-based liability and the road authority
Road authorities, such as municipalities, provinces or Rijkswaterstaat (the Dutch national roads and waterways agency), have a statutory duty to keep roads in good condition and to ensure the safety of road users. When damage occurs because a road has been poorly maintained or insufficiently secured, for example with poorly visible obstacles, subsidence or missing warning signs, the road authority can be held liable on the basis of fault-based liability. The assessment focuses on whether the road met the requirements that could reasonably be set for it in the given circumstances. Another question is whether the defect could have been discovered in time and whether sufficient measures were taken to limit the risk.
All about the liability of the road authority
Fault-based liability and compensation
When the requirements for fault-based liability have been met, the liable party has an obligation to pay compensation. This compensation aims to put the injured party as far as possible in the position they would have been in if the unlawful act had not taken place. The amount of compensation is determined on the basis of various heads of damage, which are divided into financial loss and non-material damage.
Financial loss includes, among other things, loss suffered (such as damaged goods), loss of profit, costs incurred to prevent or limit damage and costs incurred to establish liability or the extent of the damage. Non-material damage concerns harm to the person (such as pain, grief or damage to honour and good name) and is compensated by awarding non-material damages (smartengeld).
The court assesses the reasonableness of the compensation claimed on the basis of the circumstances of the case. In addition, the compensation can be reduced if the victim was partly at fault (Art. 6:101 BW). When assessing the damage, the degree of foreseeability, causation and any obligations to limit the damage are also taken into account. The starting point always remains full compensation of the damage that can be attributed to the mistake.
Insurance for fault-based liability
To limit the financial risks of fault-based liability, there are various types of insurance that cover the damage resulting from an unlawful act. For private individuals, personal liability insurance (AVP) is the most common. This liability insurance covers damage to third parties caused by the insured person or their family members, which also includes children and pets.
For businesses and self-employed people, there is business liability insurance (AVB), a liability insurance that covers damage to people or property caused while running the business. In specific professions, such as doctors, lawyers, accountants or architects, professional indemnity insurance is useful. In addition, directors of legal entities can take out directors’ and officers’ liability insurance (bestuurdersaansprakelijkheidsverzekering) to cover personal liability for management errors. All these types of insurance have various exclusions, limits of cover and additional conditions. It is therefore important to read the policy conditions carefully.
Read also: Liability and vaccination and Legal liability when it comes to claims and insurance.
Frequently asked questions about fault-based liability
Although fault-based liability is something many people feel is natural (there is a kind of moral obligation to compensate damage you have caused), the legal concept often raises questions in practice. Who exactly is liable? What if there are several people responsible? In this FAQ about fault-based liability, we answer a number of additional questions that go further into the concept of fault-based liability, with practical and legally substantiated answers.
Is fault-based liability a form of legal liability?
Yes, fault-based liability is a form of legal liability. It is based on Article 6:162 of the Dutch Civil Code, which governs the unlawful act. This article provides the legal basis for the obligation to pay compensation for wrongful conduct, even if there is no contractual relationship between the parties.
What happens if several people make a mistake together?
If several people jointly commit an unlawful act, they can be jointly and severally liable on the basis of Article 6:166 BW. Taking part in the group can in itself constitute a mistake and give rise to liability.
Does the intention of the person responsible play a role in fault-based liability?
Intention is not decisive for fault-based liability. What matters is whether the conduct is blameworthy and unlawful according to objective standards. Both intentional and unintentionally negligent conduct can lead to liability, as long as the conditions have been met. Intent can, however, lead to more serious consequences, for example in the case of criminal prosecution.
Is there a limitation period for bringing a claim based on fault-based liability?
Yes, a claim arising from an unlawful act is in principle time-barred five years after the day on which the injured party became aware of both the damage and the liable person, and in any case twenty years after the event that caused the damage (Article 3:310(1) BW). For damage caused by injury or death, that twenty-year period does not apply: the claim then only becomes time-barred five years after the day on which the injured party became aware of both the damage and the liable person. If the injured party was a minor at that time, that five-year period runs from the day after they come of age (Article 3:310(5) BW).
Can fault-based liability also arise from an omission rather than an act?
Certainly. An omission can also be unlawful, for example when someone fails to warn of a known danger or does not comply with a duty to supervise. The question is whether the omission is contrary to a standard of care that applies in the given circumstances.
Can fault-based liability be excluded by contract?
In some cases, yes. Parties can include an exemption clause in an agreement that excludes or limits liability. There are limits, though: in the case of intent or conscious recklessness, excluding liability is in principle not legally valid. Consumer protection can also restrict such clauses.
Does fault-based liability also apply to animals or machines?
Not directly. Animals and machines are not legal persons and therefore cannot be liable themselves. However, the owner or user of an animal or machine can be liable on the basis of fault if they were negligent in its use or supervision, alongside or instead of strict liability.
How does fault-based liability relate to criminal liability?
Fault-based liability is a matter of civil law and aims to obtain compensation, whereas criminal liability concerns punishing criminal offences. Both can exist side by side. Someone can therefore be convicted under criminal law and also be liable under civil law for the same conduct, for example in the case of assault or vandalism. Both matters can also be dealt with together, or a criminal judgment can be used to strengthen civil proceedings.