10.4.2 Departure from ‘conduct-based’ liability and a lower liability threshold

The second sub-question is: what is the effect of the entrepreneurial status for the liability standard? The effect is twofold. First, liability of entrepreneurs is less ‘conduct-based’ than liability of individuals. This is most evident in vicarious liability. Vicarious liability is often channelled to the entrepreneur and the establishment of vicarious liability does not require an act. Furthermore, for liability pursuant Article 6:162 of the Civil Code ‘conduct’ is still required, but the criteria ‘act’ and ‘perpetratorship’ are to some extent relativized in case the party sued is an entrepreneur.

Second, the status of entrepreneur may lead to a lower liability threshold. This lowering of the threshold, however, does not always take place, as the application of the unlawfulness and imputability requirement still requires weighing all the circumstances of the case, of which entrepreneurial status is just one. The lowering of the liability threshold is based on the following grounds: an entrepreneur may be expected to have a higher level of knowledge; due to entrepreneurial status, there is an increase in danger; more care is expected from entrepreneurs; entrepreneurial status is, under certain circumstances, a reason for culpability or liability without fault.