Skip to main content Accessibility help
×
Hostname: page-component-848d4c4894-wzw2p Total loading time: 0 Render date: 2024-05-28T20:35:08.196Z Has data issue: false hasContentIssue false

The Netherlands

Published online by Cambridge University Press:  15 November 2019

Anne LM Keirse
Affiliation:
Professor of Private Law, Utrecht University
Get access

Summary

QUESTIONS

TRACING THE BORDERLINES

A. DISTINCTION BETWEEN TORT AND CONTRACT

The main reason for distinguishing between contract and tort lies with a person's will or intention to be bound by the norm at issue. In the standard situation, contractual liability only arises if a party breaches a norm that she previously agreed to act in accordance with. Tortious liability, on the other hand, arises if a person breaches a norm that is imposed upon that party by operation of law.

1) Contractual Norms and Consequent Liability

The importance of the concept ‘will’ (or ‘intention) in contract law can, for instance, be seen in the following basic rules of Dutch contract law. First, a contract is concluded if there is a ‘concurrence of wills or intentions.’ Normally, this occurs when an offer is met by acceptance, but even if offer and acceptance cannot be unequivocally identified, a court may hold that a contract has been concluded if there is sufficient evidence that the parties’ wills or intentions concurred. Secondly, most – although not all – contractual rules allowing for (partial) avoidance of the contract relate to some defect in one party's will or both parties’ wills. There are some instances in which contracts create obligations other than those envisaged by the parties – for instance, requirements by mandatory law, customary law and/or reasonableness and fairness – but at its core, the law of contract is based on the idea that parties are only bound by the obligations they have assumed willingly.

2) Tortious Norms and Consequent Liability

Tortious liability is generally based on art 6:162 of the Dutch Civil Code (Dutch CC) or one of the specific torts. In establishing liability under art 6:162 Dutch CC or one of the specific torts, the tortfeasor's will or intention to be bound by that norm (or: duty of care) is irrelevant. This does not mean that the concepts of good faith, intent or fault have no application in Dutch tort law. Indeed these concepts are oft en an essential part of establishing liability.

Type
Chapter
Information
The Borderlines of Tort Law
Interactions with Contract Law
, pp. 331 - 382
Publisher: Intersentia
Print publication year: 2019

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×