Summary

This PhD thesis deals with the strict liability of the person who uses certain things or animals in the course of a business under Art. 6:181 of the Dutch civil code (BW). Art. 6:181 BW is linked to the non-contractual liability for movable things under Art. 6:173 BW, constructed immovable things under Art. 6:174 BW, and animals under Art. 6:179 BW. These provisions were introduced on 1 January 1992. On 1 February 1995, the legislator added the liability for dangerous substances in terms of Art. 6:175 BW. Whenever these sources of an elevated risk of sustaining damage inflict damage upon persons or things, it is the legislator’s goal to clarify against whom the aggrieved party can bring an action for damages. At the same time, it needs to be clear to persons who are or might become liable under what circumstances they will be liable. This clarity enables them to take account of the liability and, if they so desire, take out insurance for it. This two-fold goal, however, has not been achieved within the system of Art. 6:173, 174, 175, 179 and 181 BW. All too often it is still unclear who would be liable and whom aggrieved parties can approach for damages. Art. 6:181 BW plays an essential role in answering this question of who is liable.

Art. 6:173(1), 174(1) and 179 BW hold the possessor of the movable thing, the constructed immovable thing, or animal liable for the damage caused by these sources of the risk of damage. If they are “used in the course of a business”, however, the operator of this business will be liable according to Art. 6:181(1) BW. Art. 6:181(2) BW adds a provision addressing the situation where there is more than one user of those things or animals in the course of a business: if they are “used in the course of a business by placing them at the disposal of another person in order to be used in the course of this other person’s business”, then the liability under Art. 6:181(1) BW will attach to “this other person”. Art. 6:181(3) BW provides a similar rule with respect to the liability for dangerous substances under Art. 6:175 BW.

This study investigates (i) the background and goal of Art. 6:181 BW, (ii) the position of Art. 6:181 BW in the system of provisions on non-contractual liability, and (iii) the scope of applicability and the application of Art. 6:181 BW. Nine Chapters are dedicated to the answers to these questions.

Chapter 1 contains a detailed introduction of the topic of this study and sketches the structure of this research. In this study, I refer to the liability on the basis of Section 6.3.2 BW as strict liability (kwalitatieve aansprakelijkheid) and to the liability on the basis of Section 6.3.1 BW as fault liability. Liability on the basis of the latter Section is always based upon an attributable unlawful act committed by the liable person. Under Section 6.3.2 BW the liability is not contingent upon the liable person’s own unlawful act. This Section lays a link between the source of the damage and a person who is in a special relationship with that source due to a certain capacity.

Chapter 2 discusses Art. 6:181 BW from a historical perspective. The old Dutch civil code (1838-1992) did not foresee many cases of strict liability: even if somebody was liable for the damage caused by somebody else or a thing, the liability was quite often held to be triggered by an attributable unlawful act of the liable person (sometimes on the basis of far-fetched arguments). Art. 6:181 BW does not have a predecessor in the old civil code. As a result of the Industrial Revolution in the middle of the 19th century, society became more complex and more dangerous. The number of risks created in the course of a business rose, leading to more accidents. There was an increasing need to abandon the traditional requirement of an attributable unlawful act in order to protect the victims of such accidents. This resulted in the introduction of a number of provisions providing for the ‘special’ liability for ‘dangerous things’. Today, Section 6.3.2 BW is characterised by a diversity of bases for strict liability. Art. 6:181 BW, together with a short explanatory memorandum, was only introduced very late in the parliamentary process on the then new civil code. When Art. 6:181 BW took effect in 1992, this liability had not been sufficiently thought through from a legal-technical perspective.

To enable a deeper understanding of the liability of the user of things and animals in the course of a business, Chapters 3 to 5 determine the position of Art. 6:181 BW in the statutory system.

Chapter 3 mainly investigates the relationship between the liability of the operator of a business on the basis of Art. 6:181 BW and the liability of the possessor. The conclusion is that the system of Art. 6:173, 174, 179 and 181 BW precludes that the possessor and the operator of a business are liable at the same time (cumulatie). However, the aggrieved party may not freely choose whom to sue for damages (alternativiteit). Art. 6:181 BW has an effect of exclusivity with respect to the liability of the possessor on the basis of Art. 6:173, 174 and 179 BW. Art. 6:181(2) and (3) BW, which address the situation where the thing or animal is used by more than one operator of a business, also have an effect of exclusivity: only the end user is liable. However, liability on the basis of Art. 6:181 BW does not preclude fault liability on the basis of Art. 6:162 BW or contractual liability in terms of Art. 6:74 BW. This Chapter also deals with the relationship between Art. 6:181 BW and persons whom I refer to as ‘special’, who can also be liable for damage caused by things and animals referred to in Art. 6:173, 174, 175, and 179 BW, for example operators of roads, cables, and pipelines, as well as the producer in terms of Section 6.3.3 BW.

Chapter 4 presents the research on the hierarchy between the possessor and the person who uses a thing or animal in the course of a business. The judiciary and scholars often view the possessor as the central figure and Art. 6:181 BW as an exception to the possessor’s liability, which is the point of departure. My analysis of Art. 6:181 BW comes to a different conclusion: in the statutory system the liability of the user in the course of a business is more important, while the possessor will only be held liable where there is no such user. This hierarchy between the user in the course of a business and the possessor, which I advocate in this thesis, has some important implications for liability law in practice. If Art. 6:181 BW is applicable, it no longer needs to be determined who the possessor is, Art. 6:181 BW can be interpreted broadly, and in case of doubt the application of Art. 6:181 BW is given priority if there is also a possessor. This hierarchy also affects the question of who has to establish facts and bears the burden of proof in court proceedings with respect to the liable person.

Chapter 5 investigates more closely the liability for damage caused by things and animals facilitating the business operations under Art. 6:181 BW. The vicarious liability for persons assisting in the business operations under Art. 6:170 (subordinates) and 171 BW (independent contractors) is used as a source of inspiration. Art. 6:170 BW is generally construed widely on the basis of the criterion of “control”, while Art. 6:171 BW is construed rather narrowly because of the criterion of “unity”. The result of the analysis is that Art. 6:170 BW, but not Art. 6:171 BW, can be used as a source of inspiration for the application of Art. 6:181 BW. It is submitted that Art. 6:181 BW, enriched by Art. 6:170 BW, should be construed widely with “control” playing a major role in the application.

On the basis of the insights gained in the Chapters 2 to 5, Chapters 6 to 8 investigate the scope of applicability of Art. 6:181 BW.

Chapter 6 concludes that “business” in terms of Art. 6:181 BW must be construed so widely as to include any professional user of the things, substances and animals referred to in Art. 6:173, 174, 175 and 179 BW. Only the private sphere remains outside the scope of Art. 6:181 BW. Not only ‘traditional’ businesses, but also the professions, governmental organisations, and organisations of other kinds, such as hospitals, schools, universities, foundations, associations, and churches, fall under the term ‘business’ if they use the things, substances or animals referred to in Art. 6:173, 174, 175 and 179 in the course of their operations.

Chapter 7 deals with ‘use’ in terms of Art. 6:181 BW. It is submitted that the interpretation of this term should be based upon the criterion of control: ‘user’ of the things, substances and animals referred to in Art. 6:173, 174, 175 and 179 BW is the person who has (the greatest extent of) control of the element that causes the damage from which the strict liability is intended to protect other people. The application of this criterion leads to different outcomes, depending upon the basis of strict liability. The ‘use’ of a movable thing in terms of Art. 6:173 BW requires physical actions involving the movable thing, while for the ‘use’ of a dangerous substance (Art. 6:175 BW) or animal (Art. 6:179 BW) it may be sufficient to hold it. If there is only minimal use of the movable thing, dangerous substance, or animal, the application of Art. 6:181 BW may not be appropriate. The ‘user’ of a constructed immovable thing in terms of Art. 6:174 BW is only the person whose business operations have a sufficient link with (the damage caused by) the deficiency of the constructed immovable thing. In practice, the defect of the constructed immovable thing will most likely not be related to the business operation, which means that the owner/possessor should be liable. The “unless”-clause included in Art. 6:181(1) BW reflects this reasoning. In my opinion, this clause does not have any additional value because the desired outcome can be achieved through the application of the term ‘use’ under Art. 6:181(1). Art. 6:181(2) and (3) BW do not have any additional value either because Art. 6:181(1) BW (with regard to things and animals) and Art. 6:175 BW (with respect to dangerous substances) already provide for the desired outcome. The term ‘use’ in terms of Art. 6:181(1) BW may also help to solve cases where things or animals are used by different companies of a group and cases where things or animals used by independent contractors assisting in the business operations inflict damage.

Chapter 8 discusses the requirement of a functional link between the business operations and the sustained damage. The conclusion is that this requirement barely has practical importance. This requirement will very seldom be subject of discussions due to its broad interpretation and because the criteria of ‘use’ and ‘business’ already take into account considerations that would otherwise fall under this requirement. However, this requirement may clarify the application of Art. 6:181 BW in certain borderline cases. Should the application of Art. 6:181 BW depend upon the interpretation of this requirement, its interpretation should be based upon the equivalent requirement in Art. 6:170 BW.

Chapter 9 summarises and reflects on the most important insights in this study. The conclusion is that the three criteria used to establish strict liability under Art. 6:181 BW (‘use’, ‘business’, and ‘in the course of’) are closely linked and may overlap. The practical application of Art. 6:181 BW consists in the “total test” of whether the things or animals referred to in Art. 6:173, 174 and 179 were “used in the course of a business”. Practitioners may view the interpretation of Art. 6:181 BW advocated in this study as reallocating certain risks of liability. Where there did not seem to be a basis for strict liability, my interpretation may entail that there is such a basis, and vice versa. Special attention should be given to the implications of the position of Art. 6:181 BW within Section 6.3.2 BW, as advocated in this study, for the question of who needs to establish and prove facts in court proceedings.

The results of my research do not necessarily necessitate amendments to the civil code as it is. A number of changes of the relevant provisions in Section 6.3.2 BW would arguably clarify and facilitate the application of the different bases for strict liability for things, substances and animals. The appendix behind Chapter 9 contains the draft of an amendment (‘Voorstel tot wijziging van de art. 6:173, 174, 179 en 181’).