10.2 Problem definition

This dissertation examines the status of entrepreneur-tortfeasor in Dutch tort law. Tort law has traditionally been focused on the individual. This is firstly reflected in the traditional justification ground of tort law: the fault principle. The fault principle is based on personal culpability: the person who acted differently from what he should have done, while that action was avoidable, should bear the consequences. Second, the focus on the individual is reflected in four requirements for liability: act, perpetratorship, unlawfulness and imputability. These concepts are strongly intertwined with the physical person of the party sued. Therefore, tension arises if the tortfeasor is not a human being, but a legal person. It has been argued in scholarly literature that liability of corporations calls for a special interpretation of aforementioned key concepts of tort law. This ‘special interpretation’ is said to be justified by the risk principle. Consequently, liability of entrepreneurs has been described as ‘strict liability’.

The central research question is whether extra-contractual liability of entrepreneurs is a form of (quasi) strict liability under Dutch law. This asks for a definition of (quasi) strict liability. In chapter 2, I distinguish four types of strict liability: liability without act, liability without perpetratorship, liability without unlawfulness and liability without fault. Quasi strict liability is understood as a form of liability in which an act, a perpetrator, unlawfulness and imputability are required, but in which they have become less stringent criteria.

The follow-up question is: what is the meaning of the status of entrepreneur-tortfeasor for the interpretation of ‘act’, ‘perpetratorship’, ‘unlawfulness’ and ‘imputability’. This question falls into three sub-questions. The first sub-question is: to what extent do courts, under Dutch tort law, have the possibility to take the status of entrepreneur-tortfeasor into account when assessing and interpreting the requirements ‘act’, ‘perpetratorship’, ‘unlawfulness’ and ‘imputability’? The second question is: if the status of entrepreneur is taken into account, what is the legal effect? The third sub-question builds on the second sub-question: if a certain legal effect is found, what is the justification for this effect? ‘Entrepreneur’ is understood here in the sense of ‘corporation’.

The aim of this research is to construct a theory on the extra-contractual liability of entrepreneurs. To achieve this goal, three research methods were employed: the legal-dogmatic method, the comparative law method and a qualitative content analysis.