10.3 Research results

The research has resulted in a new theory on the position of entrepreneurs in Dutch tort law. In doing so, it fills a gap in scholarly literature. It not only sheds a light on how the requirements ‘act’, ‘perpetratorship’, ‘unlawfulness’ and ‘imputability’ can be interpreted if the party sued is an entrepreneur, but it also shows how the status of entrepreneur-tortfeasor can lead to a lower liability threshold. Finally, this thesis complements existing literature on the foundations of tort law, as it draws attention to a principle that has remained underexposed in Dutch literature: the entrepreneurial risk principle. I briefly discuss the main findings of this research.

Chapter 2 deals with the concepts fault and risk. Fault and risk are considered to be the foundation of tort law. The principles of fault and risk constitute justification grounds for passing on damages. They are based on two different views of justice: corrective and distributive justice, respectively. The risk principle is a collection of different principles and policy considerations. Both the fault principle and the risk principle have influenced positive tort law. In scholarly literature, four types of strict liability have been distinguished: liability without act, liability without perpetratorship, liability without unlawfulness and liability without fault. I conclude that this classification is unnuanced and that the risk principle affects the criteria of ‘act’, ‘perpetratorship’, ‘unlawfulness’ and ‘imputability’ in a subtler way as well.

Chapter 3 discusses the criteria ‘act’ and ‘perpetratorship’. Perpetratorship of the legal person, is established by the Babbel criterion. This criterion implies that the conduct of a person will constitute a conduct of the legal person, if it is generally held in society that this conduct must be considered an act of that legal person. The Babbel criterion is an open standard that requires further specification. Whether perpetratorship of the legal person can be assumed depends on the circumstances of the case. Relevant circumstances are, among others: the position of the physically acting officer in the organisation; the place where the (physical) act took place; the nature and scope of the violated standard; the nature of the conduct, more specifically whether the conduct was part of the normal course of business of the corporation; whether the legal person has profited from the conduct; and the nature of the legal entity, more specifically the internal structure and size of the organisation. The result of attribution is the assumption of the legal entity’s own conduct. This legal conduct is to be distinguished from the (legal) conduct of the officer. Daderschapsverdubbeling (the duplication of perpetrators) does not occur. A physical conduct may count as: a) the legal conduct of an officer; b) the legal conduct of the legal person; c) a legal conduct of the officer and, in addition, a legal conduct of the legal person, insofar as it does involve two separate legal conducts with their own normative frameworks.

Chapter 4 focuses on whether, in establishing the legal person’s legal conduct, the court should rely on the physical conduct of an officer (indirect perpetratorship) or whether, for instance in case the acting officer cannot be identified, it can establish perpetratorship in a direct manner (direct perpetratorship). Supreme Court case law and scholarly literature give reason to conclude that the legal person’s perpetratorship can be established indirectly. There is, however, discussion in scholarly literature as to whether it is (also) possible to construct perpetratorship in a direct manner. I have distinguished three forms of direct perpetratorship: the humanisation of the legal person; the attribution of an unlawful state (toestandstoerekening) and the organisational duty. The humanisation of the legal person should be rejected because it is inconsistent with Supreme Court case law and conflicts with scholarly literature. Furthermore, I believe that the perpetratorship of the legal person cannot be constructed through the attribution of an unlawful state or the assumption of an organisational duty. In my view, the physical conduct of an officer is the starting point for the culpability of the legal person. Under circumstances, however, the court may abstract from the person of the officer or the court may assume a fictitious act, thereby creating a more direct form of perpetratorship. This, however, does not entail direct perpetratorship in a strict sense.

Chapter 5 examines the significance of the status of the entrepreneur-tortfeasor for the criteria ‘act’ and ‘perpetratorship’. The question is to what extent courts can take into account the status of entrepreneur when assessing whether the requirements ‘act’ and ‘perpetratorship’ are fulfilled. The answer to this question is as follows. For the establishment of vicarious liability, an act (and therefore perpetratorship of the party sued) is not required. Instead, a certain status of the party sued is required. In the majority of the Dutch vicarious liability regimes, this involves a corporate status. Unlike vicarious liability, liability in tort does require an act and perpetratorship. The status of entrepreneur is weighed when establishing perpetratorship. Consequently, a relativisation of the perpetratorship criterion occurs. This means that weight is given to circumstances that have little to do with the physically acting officer, but more with the business status of the corporation. Relevant circumstances include: the circumstance that the conduct fits within the normal business activities; the circumstance that the legal entity benefited from the conduct; and the nature of the legal entity, in particular the internal structure and size of the organisation. To justify the channelling of vicarious liability to entrepreneurs and to justify the relativisation of perpetratorship under Article 6:162 of the Dutch Civil Code, I introduced the entrepreneurial risk principle. This principle is inspired by the US enterprise liability idea. It is based on the idea that, in some cases, it is fair to pass on damages resulting from entrepreneurial activities to the entrepreneur, instead of leaving them at the risk of the injured party. The entrepreneurial risk principle is a corollary of distributive justice and constitutes a set of certain risk principles associated with being an entrepreneur.

It follows from Chapter 6 that perpetratorship (or, in the case of vicarious liability: being the party to which this statutory provision applies), unlawfulness (breach of standard) and imputability are distinguishable, but this distinction cannot always be made sharply. In this chapter, I argue that the status of the party sued also affects the interpretation of the unlawfulness and imputability requirement. Chapter 6 presents various ways in which the court can take the status of the party sued into account in its unlawfulness judgment: via the knowledge requirement; as a weighting factor; via an organisational duty; via legislation; via fundamental rights and via private regulation. Furthermore, it shows how the court may consider the status of the party sued when establishing imputability.

Chapter 7 assesses whether the ‘reasonable’ entrepreneur constitutes a distinct category within tort law. I argue that the business nature of the entrepreneur justifies such a separate status, but that ‘the’ reasonable entrepreneur does not exist. After all, business society is heterogeneous. Based on scholarly literature and Supreme Court case law, a catalogue of viewpoints has been drawn up, which may be helpful in establishing a specified ‘reasonable entrepreneur’. This catalogue includes the following viewpoints: the industry in which the entrepreneur operates; the degree of specialisation of the entrepreneur; the financial position of the entrepreneur; the hazardous nature of the entrepreneurial activities; the utility of the entrepreneurial activities; the dominant position and influence of the entrepreneur; and the organisational structure of the enterprise. The literature additionally mentions the viewpoints ‘international nature, ‘size of the enterprise’ and ‘the existence of an inhouse research & development department’. In my view, these additional viewpoints are not convincing.

Chapter 8 focuses on the significance of the status of (specified) entrepreneur for the unlawfulness and imputability criterion. First, I assessed to what extent courts, under Dutch tort law, have the possibility to weigh the status of entrepreneur when interpreting the criteria ‘unlawfulness’ and ‘imputability’. I conclude that there are multiple ‘routes’ in which the factor ‘status of entrepreneur-tortfeasor’ may play a role. Secondly, I examined what the effect was, when a court includes the entrepreneurial status of the tortfeasor in its reasoning. I argue that the status of entrepreneur can lead to the conclusion that the party sued is more knowledgeable; that there is an increase in danger (gevaarsverhoging); that the party sued is able to exercise more care; or that the unlawful act is attributed more quickly. The consequence is a lower liability threshold. This lowering of the liability threshold obviously does not occur in all cases where the tortfeasor is an entrepreneur. The interpretation of the unlawfulness and imputability requirement remains an assessment on the basis of all circumstances of the case, of which the status of entrepreneur is just one. Thirdly, the justification for the lowering of the liability threshold has been examined. I argue that the justification is to be found in the entrepreneurial risk principle.

Finally, I examined whether the presented theory is reflected in the case law of courts deciding on questions of facts (district courts and courts of appeal). I conclude that only in a small number of cases the court explicitly includes the entrepreneurial status of the tortfeasor in its reasoning. The reason is difficult to ascertain. In the cases where the court does consider the status of entrepreneur, the court includes this circumstance as an argument for assuming a high level of knowledge or as a weighting factor in the assessment.