3.1 One rule, one remedy

In this ‘norm-centric’ approach to remedial law, the ‘injunction’ or ‘court order’ (bevel) is the primary remedy. Whereas damages can only offer a claimant a ‘second best’, the court order offers the claimant precisely what she was promised: compliance with the rule by the extracontractual debtor. This is why, under Dutch law, the court order is available as of right.1 It does not offer the claimant more than she was promised nor does it put an onerous burden on the defendant. Only under exceptional circumstances can the court order be refused.2 When this should be so depends heavily on the facts of the case and on a balancing of interests. The rule can help in identifying which interests should be taken into account, but no more can be expected of this exercise than some general guidance as to what value judgments must be made.3 As a counterbalance to this strong right to a court order, the scope of the court order is strictly limited to the underlying duty.4 The court order is purely replicative and the defendant may not be obligated to do more than she was already obligated to do under positive law. Again, this fits well with the idea that the whole of remedial law is tailored towards materialisation of the promise of the norm.

If a rule has not been complied with, the perspective changes somewhat. The question now inevitably becomes how the defendant can right her wrong. The most common remedy is the ‘monetary compensation’ or ‘damages’ (schadevergoeding in geld). Even if the idea that all norms are about preventing and compensating losses is rejected, the fact remains that most rules are about the prevention of losses. The raison d’être of these norms is that the addressee is responsible for preventing loss to other parties. Quite obviously, the appropriate response to the violation of such a rule is to compensate the other party for any losses that might ensue. Usually compensation in money will suffice, as it merely imposes a financial responsibility on the addressee. There are, however, some instances where the rule protects interests that are not easily compensated with monetary awards. In those cases, there might be a reason to consider compensation in kind.

Compensation in kind is a hybrid between the court order and compensation in kind: its purpose is to compensate the victim; its form is an order to exhibit some kind of behaviour.5 Given the discretionary nature of compensation in kind, there are no clear-cut rules as to when it should be available and what shape it could take. The rule can help identify those cases where the addressee of the rule is responsible for those non-monetary interests as well as how the damage to those interests may be remedied through a court order. There is no reason, of course, to turn this remedy into a punitive measure or to obligate the defendant to do much more than the law required of her. Rather, the purpose of this remedy is to compensate the victim and have the defendant fulfil the responsibility the law places on her. By carefully identifying what exactly the rule promised either party, the judge can more easily find an appropriate type of compensation in kind. In that sense, the rule can have some indirect influence over the appropriate remedy.

Finally, there are some norms that deal less with the prevention of losses, but with the allocation of certain benefits. Such an allocation may be against the whole world (e.g. only the owner of a tree may harvest its fruits) or against certain specific individuals (e.g. if I promise you not to compete in a particular market, I have a duty towards you to refrain from making a profit in that market). The ‘account of profits’ (winstafdracht) under Dutch law is originally seen merely as a means to calculate damages,6 but recent case law makes that view difficult to maintain, as in those cases the profits had very little relation to the conceivable losses, if any, the claimant suffered.7 Instead, it is submitted that these cases are better explained as cases where the account of profits effectuates an allocation of benefits promised by the norm. If you make a profit using my property, for instance, I have a stronger right to those profits since you were not allowed to make them. Similarly, if you promise not to compete with me but do so anyway, it seems that I have the stronger right to the profits made and an account of profits seems appropriate.