Noataga faapisinisi i lalo o le tulafono a Holani ma le auala e faʻatapulaʻaina ai e ala i konekarate

Business liability under Dutch law rests on two bases. A company is liable for breach of contract under article 6:74 of the Burgerlijk Wetboek, and for a wrongful act towards someone with whom it has no contract under article 6:162 BW. On top of those, the Civil Code attributes to a business the conduct of its employees and of the auxiliaries it uses, and the risks of the movables, buildings and hazardous substances it operates. Most of that exposure can be limited by contract, but not all of it, and a limitation clause only works if it was validly agreed.

This article deals with liability from the perspective of a company: where it comes from, which risks are attributed by operation of law, and how far a contract can reduce them. The general requirements for liability are set out in our article on when you are responsible for damage, and the route from claim to compensation in our guide to noataga tagi.

The two bases of business liability, and why the difference matters

Contractual liability arises when a party fails to perform an obligation and that failure is attributable to it. Article 6:74 BW obliges the defaulting party to compensate the damage, but in most cases only once the debtor is in default, which requires a written notice giving a reasonable period for performance under article 6:82 BW. Notice is not needed where performance has become permanently impossible or where a fixed deadline has passed, and a serious breach also opens the way to dissolution of the contract under article 6:265 BW.

Liability in tort is the residual regime. Article 6:162 BW covers three categories of wrongful conduct: an infringement of a right, an act or omission contrary to a statutory duty, and conduct contrary to what is proper in society. The act must be attributable, there must be damage, a causal connection, and the rule breached must have been intended to protect against the kind of damage suffered, the requirement of relativity in article 6:163 BW. Damage is compensated to the extent it can be attributed to the event as a consequence under article 6:98 BW, which in commercial disputes is where much of the argument takes place.

The difference has practical bite for a business. A contractual claim can be capped, excluded or made subject to a short notification period; a claim in tort by a third party cannot be limited by a contract that party never signed. That is why the same incident, a leaking installation, a failed migration, a defective batch, can produce a modest contractual claim from the customer and an uncapped claim from a third party who suffered loss.

Liability for the people and the things a business uses

A large part of corporate exposure is attributed by statute rather than earned by fault. Under article 6:170 BW an employer is liable for damage caused to a third party by a fault of its employee, where the risk of the mistake was increased by the task assigned and the employer had control over the conduct. Article 6:171 BW extends the same idea to non-subordinate contractors used in the conduct of the business, so hiring in a subcontractor does not by itself move the risk outside the company. Article 6:172 BW does the same for representatives acting within their authority.

The Code also attributes the risks of objects. The possessor of a defective movable is liable under article 6:173 BW, the possessor of a building or structure under article 6:174 BW, and the professional user of a hazardous substance under article 6:175 BW. Where those things are used in the conduct of a business, article 6:181 BW shifts the liability from the possessor to the operator of the business, which is why a tenant running a plant, and not the landlord, usually carries the claim.

Product liability, and the change coming to it

A producer is liable without fault for damage caused by a defective product under article 6:185 BW and following. The injured party must prove the defect, the damage and the causal link, not negligence. The defences are limited and include the development risk defence, and, importantly for drafting, article 6:192 BW provides that this liability cannot be excluded or limited towards the injured party. A supplier who cannot identify its own supplier can find itself treated as the producer.

This regime is about to change. Directive (EU) 2024/2853 replaces the 1985 product liability directive, extends the concept of a product to software and to digital manufacturing files, adds damage such as loss or corruption of data, and eases the burden of proof in technically complex cases. Member states must transpose it by 9 December 2026 and it applies to products placed on the market after that date. The Dutch implementation bill amending Book 6 BW went through public consultation in 2025 and has not yet entered into force, so the present articles continue to apply for the time being; software companies and importers should nonetheless be reviewing their documentation and their insurance now.

Directors and the company

Where a company cannot pay, claimants look at the board. A director owes proper performance of his duties to the company under article 2:9 BW, and can be personally liable to a creditor under article 6:162 BW where he entered into an obligation while knowing, or where he should have understood, that the company would not be able to perform and would offer no recourse. In bankruptcy, article 2:248 BW makes the board liable for the deficit where it manifestly performed its task improperly and that was an important cause of the insolvency, with failure to keep proper records or to file the annual accounts on time creating a presumption against the board. Our articles on noataga faatonu ma luga noataga fa'apisinisi ma fa'alapotopotoga examine those thresholds in detail.

Limiting liability by contract: what Dutch law allows

An exoneration clause, limiting or excluding liability, is in principle valid between businesses under Dutch law. The limits are set by article 6:248 paragraph 2 BW: a party cannot rely on a clause where doing so would be unacceptable by standards of reasonableness and fairness. In practice a court weighs the seriousness of the breach, the nature of the damage, the relationship between the parties, whether the clause was negotiated, and whether the risk was insured or insurable. A clause is almost always set aside where the damage was caused deliberately or by conscious recklessness on the part of the company or those managing it.

That leads to a straightforward drafting rule: a proportionate cap survives, a blanket exclusion often does not. A cap expressed as a multiple of the fees paid under the contract, or as the amount paid out by the insurer, combined with an exclusion of consequential loss such as lost profit and business interruption, is far more robust than a clause purporting to exclude all liability for everything.

Three categories cannot be handled this way at all. Liability for a defective product cannot be excluded towards the injured party. Liability towards consumers is bound by the black and grey lists in Book 6 BW, and a clause excluding liability for death or personal injury will not stand. And a clause cannot limit a claim by a third party in tort, because that party is not a party to the contract; only a properly drafted third-party clause or a chain of contracts can address that.

The clause must also have been agreed

An exoneration clause in general terms and conditions only helps if the terms were validly incorporated. The user must give the other party a reasonable opportunity to take note of the terms, in principle by providing them before or at the moment the contract is concluded; if that did not happen, the terms can be annulled and the cap disappears with them. Where both parties refer to their own terms, the first reference prevails unless the other expressly rejects it. Our explanation of lautele aiaiga ma tuutuuga sets out the mechanics.

Two further contractual instruments do real work. A complaint clause fixes a period within which defects must be reported, which supports the statutory duty in article 6:89 BW to protest within a reasonable time, and the loss of that duty is one of the most effective defences available to a supplier. And an indemnity, unlike an exoneration, shifts a third-party claim to the counterparty; it is the standard answer where a subcontractor works on your customer premises.

Time limits: the defence companies forget to raise

Liability that is never claimed in time does not have to be paid. A claim for damages for a wrongful act or a breach becomes time-barred five years after the day on which the injured party became aware of both the damage and the person liable, and in any event twenty years after the event, under article 3:310 BW. A claim for performance of a contractual obligation is generally subject to a five-year period running from the day performance became due. A limitation period can be interrupted by a written notice that unambiguously reserves the right to performance, as article 3:317 BW requires; an informal complaint is not always enough.

Alongside limitation runs the duty to complain in article 6:89 BW. A buyer or client who discovers a defect must protest within a reasonable time, and what is reasonable depends on the nature of the contract and the damage. Note that the fixed two-month period sometimes quoted applies only to consumer sales of movable goods, not to commercial contracts or to the purchase of a house, where the standard remains a reasonable period. For companies the practical consequence is a simple one: register complaints in writing, with a date, and do not let a discussion run for months without recording it.

Regulatory duties that turn into liability

A growing part of corporate exposure comes from statutory duties whose breach is a wrongful act, or which regulators enforce with fines. Since 15 August 2026 the Cyberbeveiligingswet, the Dutch implementation of the NIS2 Directive, requires organisations in designated sectors to register with the National Cyber Security Centre, take appropriate risk management measures, and report a significant incident within twenty-four hours with a fuller report within seventy-two hours. Under the General Data Protection Regulation a personal data breach must be notified to the Autoriteit Persoonsgegevens within seventy-two hours, and those affected can claim compensation for damage.

On corporate sustainability, the picture changed with the Omnibus revision. Directive (EU) 2026/470 amended the Corporate Sustainability Due Diligence Directive: the harmonised civil liability regime that the original directive contained has been removed, the ceiling for penalties is set at three per cent, transposition is due by 26 July 2028 and application starts on 26 July 2029. Claims against companies over climate and environmental harm therefore continue to be brought on the ordinary basis of article 6:162 BW, as in the Shell proceedings, in which the 2021 judgment was set aside on 12 November 2024 while the existence of a duty of care was maintained and cassation is pending. It is not accurate to say that the Klimaatwet imposes liability on individual companies; it sets targets for government policy.

For artificial intelligence the position is often overstated as well. Under the AI Act the prohibitions, the rules for general purpose AI models and the transparency obligations already apply, while the high-risk regime has been postponed, to 2 December 2027 for the systems listed in Annex III and to 2 August 2028 for those under Annex I. The proposed AI Liability Directive has been withdrawn, so damage caused by an AI system is assessed under the ordinary rules of Dutch liability law and, once transposed, under the revised product liability regime.

O le a le mea e tatau ona faatulaga nei

Start with the contracts that carry the most turnover and check three things: whether your general terms were actually provided before the contract was concluded, whether the liability clause contains a proportionate cap and an exclusion of consequential loss rather than a blanket exclusion, and whether a complaint period and a notification duty are included. Then look at the relationships that fall outside those contracts, the subcontractors, the third parties on site, the products in the field, because that is where liability is attributed by statute and cannot be capped.

Second, align the insurance with the clauses. A cap that is set below the insured amount leaves value on the table; a cap above it leaves the company carrying the difference. General liability, professional indemnity, product recall, cyber and directors and officers cover each answer a different part of the picture, and the notification conditions in those policies are strict.

Third, keep the record. In disputes about liability the party that can show what was agreed, what was reported and when, and what measures were taken usually prevails, whatever the clause says. That applies with equal force to the board: minutes, risk assessments and timely filing of the annual accounts are what keep a discussion about improper management short.

E faapefea Law and More mafai ona fesoasoani

Law and More advises businesses on liability: drafting and reviewing exoneration and indemnity clauses and general terms, assessing exposure under contract and in tort, defending and bringing claims, and advising boards on personal liability. If you would like your contracts or a specific claim assessed, please contact us.