1.2 Three types of uncertainty

The result of this development, for extracontractual liability law at least, is that the analysis of a breach of duty or infringement of a right has been separated from the appropriate legal response to it.1 The finding that a right has been infringed or a duty has been breached thus becomes no more than a condition for opening the door to the arsenal of private law remedies. A reason for selecting the appropriate remedy from that arsenal needs to be found elsewhere. Although there is nothing wrong with that disconnect in and of itself, it does produce some uncertainty as to what remedy will be appropriate in a given case. Before a remedy is awarded, it is difficult for parties to predict which remedy the judge will award. Once a judgment has been reached and a remedy has been awarded, it is not always clear why this particular remedy was appropriate in this case. This gives rise to three distinct types of uncertainty.

First, the current state of remedial law is uncertain in that the outcomes of cases are not easily predictable.2 A given set of facts does not automatically produce a clearly defined remedial outcome. Imagine, for instance, a situation in which a tenant sublets her apartment to a third party and that the third party damages the property. Should the owner have a claim for damages, account of profits, or both? Article 6:104 DCC suggests that these claims should be brought in the alternative, as the ‘account of profits’ is not a genuine claim for account of profits, but rather a way to calculate damages by reference to the defendant’s profits.3 Yet a comparison with the approach in IP law suggests that such a combination should be possible, so long as the claim for damages does not consist of lost profits.4 It is not immediately clear which approach should prevail. The matter becomes even more complicated if the owner also claims an eviction order. Should that remedy be available in addition to these remedies or are they mutually exclusive? And does it matter whether the eviction order is phrased as a court order (bevel) or as compensation in kind (schadevergoeding in natura)? Here, too, the solution is not immediately clear. This gives rise to a lack of formal uncertainty, narrowly defined. Formal, because the uncertainty relates to predictability of a decision; narrowly defined, because it only takes into account the predictability of the outcome, and nothing else.

Second, remedial law is somewhat opaque as to what factors will be taken into account when selecting and fashioning a particular remedy. It is, for instance, not always clear what factors may be taken into account when deciding on the scope of liability.5 These questions are often delegated to ‘the circumstances of the case viewed in the light of the standards of reasonableness and fairness,’ yet that does not help the parties all that much. These very broad concepts allow a judge to reach nuanced decisions in a given case, but do not particularly help parties in structuring their debate. This produces formal uncertainty, broadly defined.6 Formal, as it again relates to predictability of the decision, but broadly defined because apart from the predictability of the outcome, the problem here is that the normative decision making process is not clear either.

Third, and final, remedial law suffers from a different type of ‘uncertainty’ in that parties cannot always be ‘certain’ that their substantive rights and claims will be upheld. Imagine a company hires a new candidate every year and that every year they select a white cis-gendered male in his mid-40s. This is a very predictable process and we might even be able to discern how they decide which candidate to hire, yet it seems odd to call this a ‘legally certain’ process.7 The reason for that is that the promise of an open job interview is that all candidates are considered equally and will be selected on the basis of merit. The process, then, is legally uncertain in that this promise is not fulfilled. So it is with remedies. If remedies are refused on the basis of unclear factors even though a substantive breach of duty or infringement of right has been established, it seems the claimant cannot rely on her rights on paper making it into the real world. Conversely, if a defendant through a court order is obligated to do more than she was required to do under the law, she cannot trust that her substantive claim to individual freedom on paper makes it into the real world. A system like that lacks substantive legal certainty, because the issue here is not the knowability of the outcome, but the inherent problem that a substantive claim does not make it into the real world.

These uncertainties do not plague the entirety of remedial law. The examples used thus far are all taken from an extracontractual context. The reason for that is that contractual remedial law is not so opaque. Contractual remedies are generally available as of right, but these rights must be exercised with deference to the legitimate interests of the counterparty.8 This rule does not necessarily fit with the extracontractual ‘creditor’ and ‘debtor,’ because they are not always in the same relation of trust and care that contractual parties are. Why should the victim of a tort care about the interests of the other party? She did not pick out the tortfeasor like one party picks the other. Furthermore, without a contract to refer to, it is not immediately clear what interests are ‘legitimate’ and – more importantly – whether they should be taken into account by the victim. In extracontractual law, therefore, there remains a lacuna as to what remedy is appropriate in a particular case and how it should be fashioned.