10.5 Epilogue

By definition, a book on the meaning of the entrepreneurial risk principle for Dutch tort law leaves questions unanswered. Numerous loose ends and practical questions remain. This is undeniably the consequence of such a broad topic, but is also significant for the academic phase in which ‘enterprise liability law’ finds itself. While the role of the entrepreneur within tort law has been addressed in scholarly literature over the past two centuries, the picture outlined has always been pointillistic. This thesis aims to change this.

My view on the role of the entrepreneur within tort law has not changed substantially during the research period. In the early stages of the research, the hypothesis arose that entrepreneurs ‘should exercise more care’ than individuals. This hypothesis may not have been very original, as I have noticed that many have the same gut feeling. I was therefore surprised that this widely shared feeling is not clearly visible in (lower) case law. The case law analysis shows that courts explicitly mention entrepreneurial status only in a very limited number of decisions. The reason for this is difficult to ascertain on the basis of dogmatic-legal research. It does not seem very plausible to me that judges have not been enabled to take this factor into account. Often, the pleadings will show that the defendant is an entrepreneur, even though it may not be clear from the pleadings what type of entrepreneur the defendant is. The latter may be a reason why the ‘reasonable entrepreneur’ has been featured so sparsely in case law, but it does not explain why the status of entrepreneur receives little explicit attention at all. It is conceivable that the court does not consider the status of entrepreneur to be an important circumstance, or is not quite sure what weight to give it. It is also possible that, although the status of entrepreneur implicitly plays a role in the assessment, the court fails to make this influence explicit.

It is regrettable that the entrepreneurial status has received little explicit attention in case law. It follows from this thesis that the status of entrepreneur may have an effect on the liability judgment. If the parties involved and the court deciding the case ignore this effect, it may lead to an unfair judgment. In addition, being mindful of the parties’ capacities is desirable for reasons of legal certainty. It is possible that the status of entrepreneur implicitly plays a role in the assessment, but that this is not made explicit. This makes it impossible for parties, but certainly also for scholars, to check whether the status has any weight, and it is difficult to predict in which situations this circumstance is relevant. Furthermore, with a view to legal development, attention to the status of entrepreneur is desirable. Because of the ambiguity regarding the application of entrepreneurial status, it is possible that courts apply this circumstance differently. This may lead to arbitrary outcomes. To overcome these negative consequences, explicit attention to entrepreneurial status in the context of the procedural debate is advisable. The follow-up question is: how can the circumstance of ‘entrepreneurial status’ be given more attention? Here lies a task for plaintiffs, courts and academics.

Plaintiffs have a task to draw attention to the status of entrepreneur. After all, the scope of the proceedings is determined by the parties. The court examines and decides on the basis of what the parties put forward in the proceedings, as follows from Article 24 Code of Civil Procedure Law (Wetboek van Burgerlijke Rechtsvordering). This means that parties should be aware of the significance of the status of entrepreneur for the liability judgment and bring this forward as an argument whenever possible. Entrepreneurial status is a circumstance that usually works in the claimant’s favour, so the onus is primarily on the claimant to emphasise the increased responsibility of the entrepreneur. As mentioned, it is usually already clear from the pleadings that the defendant is an entrepreneur and the court can take this into account. Nevertheless, there are aspects that are not always clear from the pleadings. These include the degree of specialisation, the organisational structure and the financial strength of the defendant. It may be advisable for the plaintiff to pay attention to these factors, while keeping in mind the existing frameworks of the plaintiff’s obligation to furnish facts.

It is up to the court to take the status of entrepreneur into account in its motivation. I believe that within the existing legal framework of the court’s duty to state reasons, there is enough room to pay attention to the status of entrepreneur. As mentioned, it will usually be clear from the pleadings that the defendant is an entrepreneur and the parties do not always have to explicitly point this out. In some cases, the court needs more information to formulate a (specified) ‘reasonable entrepreneur’. For example, the judge may need information on the entrepreneur’s financial position to assess whether taking further measures was financially feasible. The court already has options under the current Code of Civil Procedure to obtain this information. The proposed bill to simplify and modernise the law of evidence may strengthen this directorial role of the judge and expands the possibilities to act more actively.

Finally, there is a task for legal scholars. This book is only a first step and, as mentioned, many questions remain open. It would be helpful if the viewpoints and rules of thumb established in this thesis could be refined in the future as a result of developments in case law. In addition, there are possibilities for research into the significance of the entrepreneurial status for the law of evidence, research into the effect on the liability judgment if the injured party is an entrepreneur and research into the meaning of the status of entrepreneur for compensation law. Furthermore, cross-border research, linking already existing research into the significance of the status of entrepreneur in contract law to the present research in non-contractual liability law, would be desirable. In addition, comparative legal research offers opportunities. This research has only briefly addressed German law and the US enterprise liability concept, but a large-scale international project that compares the significance of the entrepreneurial status for various national tort law systems could possibly provide even more insights. Finally, there are opportunities beyond the legal-dogmatic realm. An understanding of why judges pay little attention to entrepreneurial status requires empirical research. In short, research on the meaning of the entrepreneurial risk principle in liability law is still in its infancy. I am hopeful that enterprise liability law will develop further in the coming years and that this book will make an important contribution to this.