UNLAWFUL ACTS UNDER THE LAWS OF THE DUTCH CARIBBEAN
Several requirements apply
Article 6:162 section 1 Netherlands Antilles Civil Code (NACC) stipulates four conditions for someone’s obligation to compensate damage based on an unlawful act (tort):
- A person has committed an unlawful act (‘onrechtmatige daad’) against another person; and
- The act can be attributed (‘toegerekend’) to that person; and
- Some other person has suffered damage (‘schade’); and
- The unlawful act has caused these damages (‘causaal verband’).
Article 6:163 NACC provides for an exception to the general rule of article 6:162 NACC: “There is no obligation to repair damage when the violated norm does not have as its purpose the protection from damage such as that suffered by the victim”. This is called the requirement of relativity (‘relativiteitsvereiste’). This can be regarded as the fifth requirement for the obligation to compensate damages.
Article 6:162 section 2 NACC provides for three forms of unlawful acts under Netherlands Antilles law: (i) a violation of a right (‘inbreuk op een recht’); or (ii) an act or omission violating a statutory duty (‘doen of nalaten in strijd met een wettelijke plicht’); or (iii) an act or omission violating a rule of unwritten law pertaining to proper social conduct (‘doen of nalaten in strijd met hetgeen volgens ongeschreven recht in het maatschappelijk verkeer betaamt’).
Article 6:162 section 3 NACC mentions three possibilities in which an unlawful act can be attributed to its author: (i) the author is culpable for the act (‘schuld’); or (ii) the act results from a cause for which he is accountable by law (‘wet’); or (iii) the act results from a cause for which he is accountable pursuant to generally accepted principles (‘in het verkeer geldende opvattingen’).
In general, the burden of proof as to whether someone has committed an unlawful act rests on the plaintiff. The burden of proof as to if the plaintiff suffered damages falls on him too.
The determination of the damage suffered also depends on other factors, e.g., if one and the same event has resulted in both losses and benefits for the plaintiff. In such event the extent of the benefit must, to the extent that this is reasonable, be taken into account when determining the damage (‘verrekening van voordeel’). This is also the case where circumstances which can be attributed to the plaintiff have contributed to the damage (‘eigen schuld’). In such event the obligation to repair damages is reduced by apportioning the damage between the person suffering the loss and the person who must compensate the damage.
Karel Frielink
Attorney (Lawyer) / Partner
