10.2 The degree of culpability, also in connection with the nature and gravity of the interests at stake

The first Saladin/HBu circumstance — degree of culpability — is, in my opinion, the most important one.

The invocation of an exemption clause is, as a general rule, unacceptable in the case of the supplier's w-ilful misconduct or conscious recklessness (bewuste roekeloosheid) or that of the supplier's top level management (bedrijfsleiding). The invocation of an exemption clause in any other circumstances is therefore, a contrario (in principle) acceptable.

An exemption clause always consists of a main rule (i.e. a part in which liability is accepted, e.g. 'supplier is liable for damages directly or indirectly connected to this contract up to an amount of EUR x per annum') and an exception (i.e. a part which states the circumstances in which the limitation of liability does not apply, e.g. 'except in the case of wilful misconduct or conscious recklessness of the supplier or the supplier's top level management'). If an exemption clause does not contain an explicit exception, the exemption is valid, but the exception pertaining to 'wilful misconduct or conscious recklessness of the supplier or its top level management' will be regarded as implied.

If a customer wishes to invoke the main rule, it has to prove, among other things, that (i) the act of the person causing the damage must be characterised as an act of the supplier (Babbel doctrine) or (ii) the supplier is vicariously liable for that act (Art. 6:76, 170 or 171 Netherlands Civil Code).

If a customer wishes to invoke the exception, it has to prove, among other things, that the act of the person causing the damage must be characterised as an act of the supplier. An act of the supplier's top level management automatically qualifies as an act of the supplier. An act of anyone else (such as an employee not belonging to the supplier's top level management) will not readily be characterised as an act of the supplier for this purpose because of the nature of an exemption clause (to exclude or limit liability), the all-ornothing character and the far-reaching consequences of the sanction (unlimited liability) if the act is attributed to the supplier and the fact that it is still possible for the exemption clause to be considered unacceptable in combination with other Saladin/HBu circumstances. The customer is not entitled to claim against the supplier under the exception on the basis of vicarious liability (Art. 6:76, 170 or 171 Netherlands Civil Code).

In the performance of ICT contracts, the expertise of both the supplier and the customer are relevant in determining the degree of culpability of the supplier. A preliminary question is whether the expertise of the supplier should be tested at all. The answer to that question is determined by the obligations which the supplier takes on.

The test known from the RBC/Brinkers judgment — whether the conduct 'meets the standard of care that can be demanded from a reasonable and competent automisation expert' — only comes into play if the contract with the supplier includes the provision of services. This professional malpractice standard is a minimum one and is set as of the time of contracting. If the actual expertise is at a higher level than this minimum standard, the minimum standard is 'set' at the level of the actual expertise. The expertise can vary as the contract progresses, but the level of expertise required must always equal or exceed the minimum standard, even if the actual expertise has dropped below that level. The customer's expertise can also vary as the contract progresses, but is not subject to any minimum standard.

If the difference in expertise between the supplier and the customer increases in favour of the supplier, it becomes more likely that the invocation of the exemption clause by the supplier will be deemed unacceptable on the basis of reasonableness and fairness. Unless the customer's expertise is of the same nature as that of the supplier, a comparison will not even be made (the customer will simply be regarded as not having the relevant expertise). The comparison must be made as of the time at which the act causing the damage occurred. The supplier's expertise at the time the comparison is made must in any case equal or exceed the minimum standard set at the time of contracting.

The degree of culpability is affected by the 'nature and gravity of the interests at stake'. In my opinion, this somewhat cryptic formulation by the Supreme Court refers to (i) the importance which the customer attaches, and is entitled to attach, to the supplier's performance and (ii) the nature and gravity of the damage suffered by the customer as a result of the supplier's act.

As the importance which the customer attaches to the supplier's performance (and the possible damage) increases, and the amount of damage that will be compensated under the exemption clause decreases, the likelihood that the supplier's invocation of the exemption clause will be deemed unacceptable on the basis of reasonableness and fairness increases. In my opinion, a certain restraint is called for when applying the above principle. This is because, in my opinion, as the importance which the customer attaches to the supplier's performance increases, the customer's responsibility to agree on a liability clause providing for sufficient compensation in the event of the supplier's breach also increases. However, as the importance attached to the performance increases, the amount of damage to be expected generally increases as well. Consequently, the willingness of the supplier to compensate that damage, at least in full, decreases. How these conflicting interests relate to each other — unfortunately I cannot be more specific — will depend on the circumstances of the case.

Invocation of an exemption clause will more readily be considered unacceptable on the basis of reasonableness and fairness if the damage was caused by a violation of traffic and safety standards than if it was caused by a violation of other standards. Similarly, invocation of an exemption clause will more readily be considered unacceptable on the basis of reasonableness and fairness if the damage was caused by the supplier's fault (e.g. Art. 6:74 and 162 Netherlands Civil Code) than if it was caused by acts for which the supplier bears the risk (e.g. Art. 6:76, 170 and 171 Netherlands Civil Code), more readily if the damage was caused by death or personal injury than if it consists of property damage, and more readily if it consists of property damage than if the damage is purely financial.