10.4.4 Conclusion: (quasi-)strict liability for entrepreneurs?

In scholarly literature, liability of entrepreneurs is sometimes referred to as ‘strict liability’. To test this hypothesis, I first set out what I understand by the term ‘strict liability’. The term ‘strict liability’ has many different meanings. I have highlighted four meanings: liability without act; liability without perpetrator; liability without unlawfulness; and liability without fault. I do not directly recognise these four forms of strict liability in the liability of entrepreneurs as discussed in this thesis. After all, application of Article 6:162 of the Civil Code still requires an act, a perpetrator, unlawfulness and imputability, even if the person causing the damage is an entrepreneur. Only with regard to vicarious liability, as laid down in section 6.3.2 of the Dutch Civil Code, an act, perpetratorship and fault are waived. Although liability under this section is often channelled to a corporation, it is too short-sighted to conclude that this is a typical form of Unternehmenshaftung.

Entrepreneurs’ liability cannot be characterised as strict liability. Nevertheless, I believe that risk elements play an important role in the liability of entrepreneurs. I conclude that the liability of entrepreneurs in Dutch law is a quasistrict liability, in the sense that the requirements act, perpetratorship, unlawfulness and imputability are given their own interpretation under the influence of the entrepreneurial risk principle and that this leads to a lowering of the liability threshold in some cases. Under the influence of the entrepreneurial risk principle, it is possible to move away from a tort law focused on individual human beings.