Dutch Civil Code

Book 6 The law of obligations

Title 6.3 Tort (unlawful acts)

Section 6.3.1 General provisions

Article 6:162 Definition of a ‘tortious act’
- 1. A person who commits a tortious act (unlawful act) against another person that can be attributed to him, must repair the damage that this other person has suffered as a result thereof.
- 2. As a tortious act is regarded a violation of someone else’s right (entitlement) and an act or omission in violation of a duty imposed by law or of what according to unwritten law has to be regarded as proper social conduct, always as far as there was no justification for this behaviour.
- 3. A tortious act can be attributed to the tortfeasor [the person committing the tortious act] if it results from his fault or from a cause for which he is accountable by virtue of law or generally accepted principles (common opinion).

Article 6:163 Violated standard of behaviour must intend to offer protection against damage
There is no obligation to repair the damage on the ground of a tortious act if the violated standard of behaviour does not intend to offer protection against damage as suffered by the injured person.

Article 6:164 Children younger than 14 years
The behaviour of a child who has not yet reached the age of fourteen years, cannot be attributed to him as a tortious act.

Article 6:165 Children under influence of a mental or physical disability
- 1. The fact that a person of fourteen years or older has acted under influence of a mental or physical disability, is no obstacle to attribute his behaviour to him as a tortious act.
- 2. Where, besides the tortfeasor, a third person is liable towards the injured person on account of negligent supervision, this third person is towards the tortfeasor obliged to contribute in the payable damages for the full amount for which he his liable towards the injured person.

Article 6:166 Collective behaviour
- 1. If a person, when belonging to a group of people, causes damage through a tortious act and the risk that this damage could be inflicted should already have refrained the other persons, belonging to that group, from their collective behaviour, then each of the members of this group is joint and several liable as far as this collective behaviour can be attributed to him individually.
- 2. In their internal relationship all liable persons must contribute for equal shares in the payable damages, unless fairness demands, in view of the prevailing circumstances, another imputation.

Article 6:167 Defamation (slander)
- 1. When someone is liable towards another person under this Section because of an incorrect or, by its incompleteness, misleading publication of information of factual nature, the court may, upon a right of action (legal claim) of this other person, order the tortfeasor to publish a correction in a way to be set by court.
- 2. The same applies if liability is absent because the publication of the information cannot be attributed to him as a tortious act for the reason that he was not aware of the incorrectness or incompleteness.
- 3. In the situation meant in paragraph 2, the court may, if it awards the legal claim, order as well that the plaintiff who filed the legal claim must bear the costs of the proceedings and the costs of the correction, either in full or in part. For the part of the costs of proceedings and the costs of correction that each of the parties has to bear according to the court’s judgment, each party may take recourse against all person who are liable for the damage arising from the incorrect or incomplete publication.

Article 6:168 Compelling public interests
- 1. Where a legal claim aims for an injunction to prohibit specific tortious behaviour, the court may reject it on the ground that this behaviour must be tolerated for compelling reasons of public interests. The injured party, nevertheless, remains entitled to claim damages in accordance with the present Section.
- 2. In the event meant in Article 6:170 a subordinate is not liable for the damage caused by tortious behaviour that must be tolerated by virtue of paragraph 1.
- 3. If a judgment to pay damages or to provide security for such damages is not complied with, then the court may still grant an injunction prohibiting the tortious behaviour meant in paragraph 1.

Section 6.3.2 Liability for damage caused by other persons or by things

Article 6:169 Liability for tortious acts of children
- 1. A person who exercises parental responsibility or legal guardianship over a child under fourteen years of age is liable for damage caused to a third person by an act of that child, provided that this act could have been regarded as a tortious act of that child if its age would not have stand in the way.
- 2. A person who exercises parental responsibility or legal guardianship over a child which has reached the age of fourteen years, but not yet the age sixteen years, is liable for damage caused to a third person by this child’s fault, unless he cannot be blamed for not preventing this child’s behaviour.

Article 6:170 Liability for faults (tortious acts) of a subordinate
- 1. The person in whose service a subordinate fulfils his duty, is liable for damage caused to a third person by a fault of this subordinate, if the risk of the fault has been increased by the assignment to fulfil this duty and the person in whose service the subordinate was, had - because of the legal relationship between him and the subordinate - control over the behaviour which constituted the fault.
- 2. Paragraph 1 does not apply when the subordinate is in service of a natural person who, when entering into the legal relationship with the subordinate, did not act in the course of his professional practice or business. In that event the person in whose service the subordinate [e.g. nanny, cleaning lady] was, is only liable if the subordinate, when committing the fault that caused the damage to the third party, was acting in the performance of the duty assigned to him by the natural person in whose service he was.
- 3. If the subordinate and the person in whose service he was are both liable for damage caused to a third person, then in their internal relationship the subordinate does not need to contribute in the payable damages, unless he has caused the damage on purpose or he has knowingly behaved recklessly. The circumstances of the case and the nature of their legal relationship may demand a different result than the one mentioned in the previous sentence.

Article 6:171 Liability for faults (tortious acts) of non-subordinates
When a non-subordinate (self-employed earner) commits a fault in the performance of his activities, which were carried out on instruction of another person on behalf of this other person’s professional practice or business, that makes the non-subordinate (self-employed earner) liable towards a third person, then that other person, under whose instructions the non-subordinate (self-employed earner) acted, is liable as well towards this third person.

Article 6:172 Liability for faults (tortious acts) of a representative
If a representative, in the exercise of his powers, granted to him under the authorisation of representation, commits a fault which causes damage to a third party, then also the represented principle is liable towards this third person.

Article 6:173 Liability for dangerous equipment
- 1. The possessor of a movable thing, of which is known that it causes great danger for people and property when it does not meet the standards which in the circumstances may be set for such equipment, is liable if this potential danger is realized, unless he would not have been liable under the previous Section if he would have known of the danger at the time it occurred.
- 2. If the movable thing does not meet the standards referred to in the previous paragraph because it has a safety defect as meant in Section 6.3.3 of the Civil Code, no liability exists on the basis of the previous paragraph for damage as meant in Section 6.3.3 of the Civil Code, unless:
a. it is plausible, taken all circumstances into account, that the defect did not exist at the time that the movable thing (product) was put into circulation on the market or that the defect has arisen after this moment, or;
b. it concerns damage to any item of property other than the defective movable thing (product) itself, to the point of which under Section 6.3.3 6 of the Civil Code no right of compensation exists on the basis of the threshold as regulated in that Section.
- 3. The previous paragraphs do not apply to animals, ships and aircraft.

Article 6:174 Liability for dangerous constructed immovable things
- 1. The possessor of a constructed immovable thing which causes danger for people or other property because it does not meet the standards which in the given circumstances may be set for such things, is liable if this potential danger is realized, unless he would not have been liable under the previous Section if he would have known of the danger at the time it occurred.
- 2. When a constructed immovable thing as meant in the previous paragraph is encumbered with a long leasehold, the liability rests on the possessor of the long leasehold. With regard to dangerous public roads the liability rests on the public authority that has to ensure that the road is in good condition. With regard to dangerous pipelines it rests on the management in charge of maintenance, except as far as the pipelines are situated in a building or construction and serves for the supply or discharge of fluids or other materials on behalf of that building or construction.
- 3. With regard to underground constructions the liability rests on the person who, at the moment on which the damage becomes known, uses this construction in the course of his business. If, after the moment on which the damage has become known, someone else takes use of the construction, then the liability continues to rest on the person who used the construction at the moment on which the damage became known. If the damage has become known after the use of the underground construction has ended, then the liability rests on the person who used the construction last.
- 4. For the purpose of this Article a constructed immovable thing is understood as a building, work or construction, permanently attached to the land, either directly, or by means of a connection with another building, work or construction.
- 5. The person who is registered in the public register for registered property as the owner of the constructed immovable thing or of the land to which this thing is attached, is considered to be the possessor of the constructed immovable thing.
- 6. For the purpose of this Article a public road includes the foundation and surface of the road and its street fixtures.

Article 6:175 Liability for dangerous substances
- 1. The person who in the course of is professional practice or business uses a substance or keeps it under his control, while it is known that this substance has such characteristics that it causes a special danger of a serious nature for persons or property, is liable when this potential danger is realized. With a person who conducts a business is equated a legal person who uses the substance or keeps it under his control in the fulfilment of his task or duty. When a substance is explosive, oxidising, inflammable, light inflammable, heavily inflammable, poisonous or very poisonous according to the criteria and methods as set under Article 9.2.3.1, third paragraph of the Environmental Management Act, then it will in any event be regarded as a substance which causes a special danger of a serious nature.
- 2. If the substance is under control of a keeper who makes it his business to store such substances, then the liability from the first paragraph rests on him. For the purpose of the present paragraph the following persons are equated with such a keeper: the carrier, shipping agent, stevedore, keeper or similar entrepreneur, who has accepted a before mentioned substance for transport on account of an agreement in connection with that transport, this for the period in which the substance is under his control, and to whom Section 8.4.6, Section 8.11.4, Section 8.14.1 or Section 8.19.4 of the Civil Code do not apply.
- 3. Where the substance is to be found in a pipeline, the liability from the first paragraph rests on the management in charge of maintenance, except as far as the pipeline is situated in a building or construction and serves for the supply or discharge of fluids or other materials on behalf of that building or construction.
- 4. Where the damage is a consequence of pollution of air, water or soil with the substance, the liability from the first paragraph rests on the person who, at the start of the activity which caused the pollution, is liable by virtue of the present Article. Where the pollution has occurred because the substance was packed when it entered the water or soil or when it was left on the land, then the activity which caused the pollution is regarded to have started already at that time.
- 5. Where the substance, whether or not together with other components, forms a movable thing as meant in Article 6:173, paragraph 1, or where it is packed in such a movable thing or where it is stored in a for this purpose built constructed immovable thing as meant in Article 6:174, paragraph 4, the liability from Articles 6:173 and 6:174, as far as it concerns damage which has been caused for the reason that the potential danger of the substance is realized, rests on the same persons as the ones who under the previous paragraphs of the present Article are liability to the point of the substance.
- 6. A substance is considered to meet the description as meant in paragraph 1, first sentence, when it has been selected as such by Order in Council. A substance can be selected in any event if it, according to criteria and methods determined under Article 9.2.3.1, third paragraph of the Environmental Management Act, belongs to one of the classes meant in the second paragraph of that Article. This selection can be restricted to certain concentrations of the substance, to specific dangers of the substance to be set in the Order in Council and to certain situations in which the substance is to be found as mentioned in the Order in Council.

Article 6:176 Dumping grounds
- 1. The operator of a waste site is liable for the damage which arises before or after the closing of the waste site, resulting from pollution of air, water or soil with substances that were dumped there before the closing.
- 2. For the purpose of this Article an ‘operator of a waste site’ is understood as:
a. the person who is subject to a surroundings permit for a construction operation as meant in Article 2.1, paragraph 1, under point (e), of the Act on General Provisions for Surroundings Law, necessary to be able to set up or change a waste dump on the ground as meant in paragraph 6 of the present Article or necessary in order to have a waste site in function there or to change its functioning;
b. every person who runs a waste site without the need of having a license or permit.
- 3. If, after the moment on which the damage has become known, the waste site is taken over by another operator, then the liability continues to rest on the person who was the operator at the moment on which the damage became known.
- 4. If the damage has become known after the closing of the waste site, then the liability rests on the person who was the last operator of this site. No liability under this Article exists when, at the time on which the damage became known, more than twenty years have expired after the closing of the waste site, taking into account the applying public regulations as well as the question if the damage is a result of the use of the ground in violation of rules which apply to the use of grounds where in the past a waste site was located.
- 5. If the exploitation of a waste site is or has been in agreement with the law, then the persons who have dumped on this site substances, causing pollution, or under whose authority these substances were dumped there, are not liable for the damage caused by the pollution, neither under Article 6:175, nor under Section 8.6.4, Section 8.11.4, Section 8.14.1 or Section 8.19.4 of the Civil Code. If a thing as meant in Article 6:173 or a substance as meant in Article 6:175 is dumped on the waste site, then the liability from those Articles rests on the person who, pursuant to the previous paragraphs, is liable as the operator of the waste site.
- 6. By a ‘waste site’ is understood each ground which, according to its operator, is intended to be used for dumping substances, whether packed or not, which entirely or in part originate from other persons, with the purpose that the operator or this other persons will have got rid of these substances after they have left them there on the ground or in its soil. The word ‘dumping’ includes each way of depositing or handing over a substance.


Article 6:177 Mining operations
- 1. The operator of a mining work as meant in Article 1, component (n), of the Mining Act is liable for the damage which has been caused by:
a. effusions of minerals as described in Article 1, component (a), of the Mining Act as a consequence of uncontrollable forces of nature in the earth’s underground which are set in motion because of the construction or the exploitation of the work;
b. movements of the soil or underground as a result of the construction or the exploitation of that work.
- 2. For the purpose of this Article an ‘operator of a mining work’ is understood as:
a. the holder of a license as meant in Article 6 or 25 of the Mining Act, who constructs a mining work or under whose authority such a work is constructed or who has a mining work in use;
b. everyone who, other than as a subordinate, constructs a mine work or under whose authority such a mine work is constructed or who has such a mine work in use without the need of having a license as meant in component (a) of the Mining Act, unless he acts for another person who is a holder of a license as meant earlier or, if that other person is no holder of such a license, who was not aware and ought not to have been aware of the absence of such a license.
- 3. Liable for damage caused by the effusion of minerals is the person who, at the time of the event which has set off the effusion, is the operator of the involved mining work. If another operator has taken over the mining work after the event which set off the effusion, then the liability for this damage continues to rest on the person who was the operator of that work when the event causing the damage occurred. If this event occurs after the mining work has been closed, then the liability rests on the person who was the last operator of this work, unless the event occurred five years after the closing down of the mining work, taking into account the relevant public regulations.
- 4. Liable for damage caused by movements of the soil or underground is the person who was the operator of the mining work at the moment on which this damage became known. If, after the moment on which the damage became known, another operator has taken over the mining work, then the liability continues to rest on the person who was the operator of the mining work at the moment on which the damage became known. If this damage has become known after the closing down of the mining work, then the liability rests on the person who was the last operator of that work.
- 5. If Articles 6:173, 6:174 or 6:175 make it possible as well to base a liability on the event which caused the effusion or the movements of the soil or underground, then this liability rests, as far as it concerns the damage caused by that effusion or these movements of the soil or underground, on the same person as the one who is liable in connection with the mining work.

Article 6:178 Statutory exclusion of liability
No liability under Articles 6:175, 6:176 or 6:177 exists if:
a. the damage is caused as a result of an armed conflict, civil war, insurrection, internal riot, rebellion or mutiny;
b. the damage is caused by a force of nature of exceptional, inevitable and compelling characteristics, except in the situation meant in Article 6:177, paragraph 1, with regard to uncontrollable forces of nature in the earth’s underground which are set in motion because of the construction or the exploitation of a mining work;
c. the damage is caused exclusively due to the observance of a command or mandatory regulation of the government;
d. the damage is caused due to an operation or activity with a substance as meant in Article 6:175 in the interest of the injured person himself, where it was reasonable to expose him to the danger of damage;
e. the damage is caused exclusively by an operation, activity or omission of a third person, performed with the intention to cause damage, this without prejudice to the provisions of Articles 6:170 and 6:171;
f. it concerns nuisance, pollution or another impact as far as the persons who are held liable for these effects would not have been liable under the previous Section, even if they would have deliberately caused this nuisance, pollution or other impact.

Article 6:179 Liability for animals
The possessor of an animal is liable for the damage caused by that animal, unless he would not have been liable under the previous Section if he would have been able to control the behaviour of the animal that caused the damage.

Article 6:180 Co-possessors; transfer of a thing under a condition precedent
- 1. In the situations referred to in Articles 6:173, 6:174 and 6:179 co-possessors are joint and several liable.
- 2. In the event of a transfer of a thing under a condition precedent the liability, which by virtue of Articles 6:173, 6:174 or 6:179 rests on the possessor of a thing, will from the day of the transfer rest on the acquiring party.

Article 6:181 Liability for damage caused in the course of a business
- 1. Where things, constructed immovable things or animals, meant in Articles 6:173, 6:174 or 6:179, are used in the course of a business, then the liability from Articles 6:173, paragraph 1, 6:174, paragraph 1 and 2, first sentence, and 6:179 rests on the person who conducts this business, unless it concerns a constructed immovable thing and the damage has not been caused in connection with that business.
- 2. When things, constructed immovable things or animals are used in the course of a business by placing them at the disposal of someone else in order to be used in the course of this other person’s business, then this other person will be the person who is liable pursuant to the previous paragraph.
- 3. When a substance as meant in Article 6:175 is used in the course of a business by placing it at the disposal of someone else in order to be used in the course of this other person’s business, then this other person will be the person who is liable pursuant to Article 6:175 paragraph 1.

Article 6:182 Joint and several liability of co-operators
When, in a situation as regulated in Articles 6:176 and 6:177, there are two or more operators at the same time, whether or not acting jointly, then each of them is joint and several liable.

Article 6:183 Youthful age or disability is no defence against liability based on a tortious act
- 1. A person who is held liable under one of the provisions of this Section cannot appeal to his youthful age or to his mental or physical disability as a means of defence to put off his liability.
- 2. The person who exercises parental responsibility or legal guardianship over a child that has not yet reached the age of fourteen years, is in stead of this child liable for the damage caused by things or animals as meant in Articles 6:173 and 6:179, unless these things or animals are used in the course of another person’s business as referred to in Article 6:181.

Article 6:184 Liability and cost effective measures
- 1. The damage for which someone is liable under Articles 6:173 up to and including 6:182 includes:
a. the costs of every reasonable measure to prevent or to lower the damage, taken by any person, whoever, after a serious and immediate threat has arisen that this damage might set in, as far as the damage qualifies for a compensation of repair by virtue of Articles 6:173 up to and including 6:182;
b. the damage and loss caused by such measures.
- 2. If the measures, meant in the previous paragraph, are taken by another person than the one who would otherwise have suffered the damage with regard to which a serious and immediate threat has arisen, then this other person can only claim a compensation for costs, damage and loss as meant in the previous paragraph to the extent that this compensation could have been claimed by the person who otherwise would have suffered the damage; the person who is charged to pay this compensation may invoke the same means of defence against this other person as he could have invoked against the person who otherwise would have suffered the damage.

Section 6.3.3 Product liability

Article 6:185 Strict liability for defective products
- 1. The producer is liable for damage caused by a defect (‘safety defect’) in his product, unless he proves:
a. that he did not put the product into circulation on the market;
b. that, having regard to the circumstances, it is probable that the defect which caused the damage did not exist at the time when the product was put into circulation on the market by him or that this defect came into being afterwards, or;
c. that the product was neither manufactured by him for sale or any form of distribution for economic purpose nor manufactured or distributed by him in the course of his professional practice or business, or;
d. that the defect is due to compliance of the product with mandatory regulations issued by the public authorities, or;
e. that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered, or;
f. in the case of a manufacturer of a component, that the defect is attributable to the design of the product in which the component has been fitted or to the instructions given by the manufacturer of the product.
- 2. The liability of the producer may be reduced or disallowed when, having regard to all the circumstances, the damage is caused by both, a defect in the product and the fault of the injured person or any person for whom the injured person is liable.
- 3. The liability of the producer is not reduced when the damage is caused by both, a defect in the product and the act or omission of a third person.

Article 6:186 Definition of a ‘defective product’ (‘safety defect’)
- 1. A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, especially:
a. the presentation of the product;
b. the use that could reasonably be expected to be made of the product;
c. the time when the product was put into circulation on the market.
- 2. A product is not considered to be defective for the sole reason that afterwards a better product has been put into circulation on the market.

Article 6:187 Definition of ‘product’ and ‘producer’
- 1. For the purpose of this Section 'product' means all movable things, even those incorporated in another movable or immovable thing, as well as electricity.
- 2. For the purpose of Articles 6:185 up to and including 6:193 a ‘producer’ means the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part and any person who, by putting his name, trade mark or other distinguishing feature on the product, presents himself as its producer.
- 3. Without prejudice to the liability of the producer, any person who imports into the European Economic Area a product for sale, hire, leasing or any form of distribution in the course of his business is deemed to be a producer and shall be liable as such.
- 4. Where the producer of the product cannot be identified, each supplier of the product shall be treated as its producer, unless he informs the injured person, within reasonable time, of the identity of the producer or of the person who supplied him with the product. If with respect to a product that has been imported in the European Economic Are the importer of this product cannot be identified, then also each supplier shall be treated as the producer of this product, unless such supplier informs the injured person, within reasonable time, of the identity of the person who has imported the product into the European Economic Area or of the identity of a supplier within the European Economic Area who supplied him with the product.

Article 6:188 Burden of proof for the injured person
The injured person shall be required to prove the damage, the defect and the causal relationship between defect and damage.

Article 6:189 Joint and several liability
Where, as a result of the provisions of Article 6:185, paragraph 1, several persons are liable for the same damage, each of them is joint and several liable for it.

Article 6:190 Damage for which liability exists
- 1. The liability, meant in Article 6:185, paragraph 1, exists for:
a. damage caused by death or by personal injuries;
b. damage caused by the defect product to another asset of a type which is ordinarily intended for private use or consumption and was used by the injured person mainly for his own private use or consumption, with a lower threshold of € 500;
- 2. The threshold mentioned in the first paragraph will be revised by Order in Council if the amounts under Article 18, second paragraph of the ECC-Directive of 25 July 1985 (OJ no. L 210) are reviewed.

Article 6:191 Prescription period
- 1. The right of action (legal claim) of the injured person for the recovery of damages against the producer, available to the injured person pursuant to Article 6:185, paragraph 1, becomes prescribed on expiry of three years from the day on which the injured person became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer.
- 2. The right of the injured person to claim damages from the producer pursuant to Article 6:185, paragraph 1, shall be extinguished upon the expiry of a period of 10 years from the date on which the producer put into circulation the actual product which caused the damage, unless the injured person has in the meantime instituted proceedings against the producer. The same applies to the right of recourse which a third person, who is liable as well for the damage, may have against the producer.

Article 6:192 Exclusion clause
- 1. The liability of the producer arising from this Section may not, in relation to the injured person, be limited or excluded by a contractual term or provision limiting his liability or exempting him from liability.
- 2. If towards the injured person also a third person is liable, who did not use the product in the course of his professional practice or business, then it is not possible to derogate to the disadvantage of this third person from the statutory provisions for the right of recourse.

Article 6:193 The injured person may also use other rights and actions
The right of the injured person arising from this Section to claim damages from the producer do not affect any other statutory or contractual rights (actions) or remedies.

Section 6.3.3A Unfair commercial practices

Article 6:193a Definitions
- 1. For the purpose of this Section the following terms will have the meaning as defined below:
a. ‘consumer’: of natural person who, in commercial practices covered by this Section, does not act in the course of his professional practice or business;
b. ‘trader’: any natural or legal person who, in commercial practices covered by this Section, is acting in the course of his professional practice or business and anyone acting in the name of or on behalf of such a trader;
c. ‘product’: any movable or immovable property, including electricity, and any service;
d. ‘commercial practice’: any act, omission, course of conduct or representation, commercial communication, including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers;
e. ‘transactional decision’: any decision taken by a consumer concerning whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product or to exercise a contractual right in relation to the product, whether the consumer decides to act or to refrain from acting;
f. ‘professional diligence’: the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, in accordance with his conscientiousness, arising from the general principle of good faith in the trader's field of activity and honest market practices;
g. ‘invitation to purchase’: a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase;
h. ‘undue influence’: exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer's ability to make an informed decision;
i. ‘code of conduct’: a set of rules not imposed by or pursuant to law, which defines the behaviour of traders who undertake to be bound by the code in relation to one or more particular commercial practices or business sectors;
j. ‘code owner’: a legal person or a group of traders, responsible for the formulation and revision of a code of conduct and/or for monitoring compliance with the code by those who have undertaken to be bound by it;
k. ‘Directive”: Directive 2005/29/EC of the European Parliament and of the Council of the European Union of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (OJ L 149).
- 2. In this Section by an ‘average consumer’ is understood as well: the average member of a specific group to which the trader addresses himself or the average member of a specific group of which the trader reasonably can foresee that its members due to their mental or physical restrictions, their age or naivety are in particular susceptible for the commercial practice or for the underlying product.
- 3. This Section does not apply to the certification of goods of precious metal and the indication of the level of precious metal for these goods.

Article 6:193b Unfair commercial practices
- 1. A trader acts tortiously (unlawfully) towards a consumer if he conducts a commercial practice that is unfair.
- 2. A commercial practice is unfair if a trader acts:
a. contrary to the requirements of professional diligence, and
b. the ability of the average consumer to take a decision on the basis of sufficient information is noticeably limited or may be noticeably limited,
because of which the average consumer takes or may take a transactional decision which he otherwise would not have taken.
- 3. In particular, commercial practices shall be unfair, if a trader conducts:
a. a misleading commercial practice as meant in Articles 6:193c up to and including 6:193g, or;
b. an aggressive commercial practice as meant in Articles 6:193h and 6:193i.
- 4. The common and legitimate advertising practice of making exaggerated statements or statements which are not meant to be taken literally, does not in itself make an advertisement unfair.

Article 6:193c Misleading commercial practices
- 1. A commercial practice is misleading if information is provided which is actually incorrect or which deceives or is likely to deceive the average consumer, whether or not by means of an overall presentation of the information, like with respect to:
a. the existence or the nature of the product;
b. the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
c. the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
d. the price or the way in which the price is calculated, or the existence of a specific price advantage;
e. the need for a service, part, replacement or repair;
f. the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;
g. the consumer's rights, including the right to repair or replace the supplied asset or the right to a price reduction, or the risks he may face.
because of which the average consumer takes or may take a transactional decision which he otherwise would not have taken.
- 2. A commercial practice is also misleading if:
a. due to any marketing of a product, including comparative advertising, confusion is created with any products, trade marks, trade names or other distinguishing marks of a competitor;
b. the trader does not comply with commitments contained in codes of conduct by which the trader has undertaken to be bound, as far as:
1°. the commitment is firm and recognizable;
2°. the trader indicates that he is bound by the code,
because of which the average consumer takes or may take a transactional decision which he otherwise would not have taken.

Article 6:193d Misleading omissions
- 1. Moreover a commercial practice is misleading if it involves a misleading omission.
- 2. A misleading omission is every commercial practice where material information is omitted that the average consumer needs to be able to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
- 3. It shall also be regarded as a misleading omission when material information meant in paragraph 2 is hidden or supplied in an unclear, unintelligible, ambiguous or untimely way or when the commercial intent of the commercial practice, as far as it is not already apparent from the context, does not show from the provided information, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
- 4. The factual context, the limitations of the communication medium and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether material information has been omitted or hidden.

Article 6:193e Misleading purchase invitation
In the case of an invitation to purchase, if not already apparent from the context, the following information shall be regarded as material in the sense of Article 6:193d paragraph 2:
a. the main characteristics of the product, to an extent appropriate to the medium and the product;
b. the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;
c. the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
d. the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;
e. if there is a right of withdrawal or cancellation, the existence of such a right.

Article 6:193f Material information in commercial communication
If the commercial practice involves commercial communication, including advertising or marketing, then the information laid down in or under the following Articles shall in any case be regarded as material as referred to Article 6:193d, paragraph 2:
a. Article 3:15d, paragraph 1 and 2, and Article 3:15e, paragraph 1, of the Civil Code;
b. Article 7:46c, paragraph 1, of the Civil Code;
c. Article 7:501, paragraph 1, of the Civil Code;
d. Articles 73 up to and including Article 75 of the Medicine Act;
e. Articles 4:20, 4:73 and 5:13 of the Financial Supervision Act;
f. Article 2b of the Pricing Act.

Article 6:193g Commercial practices which are misleading in all circumstances
The following commercial practices are in all circumstances considered to be unfair:
a. claiming to be bound to a code of conduct and to act in conformity with it when the trader is not;
b. displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation;
c. claiming that a code of conduct has an endorsement from a public or other body which it does not have;
d. claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation;
e. making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (‘bait advertising’);
f. making an invitation to purchase products at a specified price and then:
1°. refusing to show the advertised item to consumers, or;
2°. refusing to take orders for it or supply it within a reasonable time, or;
3°. demonstrating a defective sample of it, with the intention of promoting a different product (‘bait and switch’);
g. falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice;
h. promising to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the Member State where the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction;
i. stating or otherwise creating the impression that a product can legally be sold when it cannot;
j. presenting rights given to consumers in law as a distinctive feature of the trader's offer;
k. using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (‘advertorial’);
l. making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product;
m. promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not;
n. establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products;
o. claiming that the trader is about to cease trading or move premises when he is not;
p. claiming that products are able to facilitate winning in games of chance;
q. falsely claiming that a product is able to cure illnesses, dysfunction or malformations;
r. passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions;
s. claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent;
t. describing a product as "gratis", "free", "without charge" or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item;
u. including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not;
v. falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer;
w. creating the false impression that after-sales service in relation to a product is available in a Member State other than the one in which the product is sold.

Article 6:193h Aggressive commercial practices
- 1. A commercial practice shall be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence, it significantly impairs or is likely to significantly impair the average consumer's freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise.
- 2. In determining whether a commercial practice is aggressive, account shall be taken of:
a. its timing, location, nature or the persistence which is demonstrated at the commercial practice;
b. the use of threatening or abusive language or behaviour;
c. the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer's judgement, of which the trader is aware, to influence the consumer's decision with regard to the product;
d. any onerous or disproportionate non-contractual barriers imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader;
e. any threat to take any action that cannot legally be taken.

Article 6:193i Commercial practices which are aggressive in all circumstances
The following commercial practices are in all circumstances considered to be aggressive:
a. creating the impression that the consumer cannot leave the premises until a contract is formed;
b. conducting personal visits to the consumer's home ignoring the consumer's request to leave or not to return except in circumstances and to the extent justified under national law to enforce a contractual obligation;
c. making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation;
d. requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights;
e. including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them.;
f. demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer except where the product is a substitute supplied in conformity with Article 7:46f, paragraph 3, of the Civil Code (‘inertia selling’);
g. explicitly informing a consumer that, if he does not buy the product or service, the trader's job or livelihood will be in jeopardy;
h. creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
1°. there is no prize or other equivalent benefit; or
2°. taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.

Article 6:193j Revised burden of proof with respect to the correctness and completeness of the provided information
- 1. When, pursuant to Articles 6:193b up to and including 6:193i, a right of action (legal claim) or an application as meant in Article 3:305d, paragraph 1, of the Civil Code is brought to court, the burden of proof rests on the trader as far as it concerns the material correctness and completeness of the information he has provided, if that seems to be appropriate in view of all circumstances of the case and taking into account the legitimate interests of the trader and of each other party in the proceedings.
- 2. If the trader has acted tortiously (unlawfully) in the sense of Article 6:193b, then he is liable for the damage caused as a result, unless he proves that he is not to blame for the damage and that he is neither accountable for it on another ground.

Section 6.3.4 Misleading and comparative advertising

Article 6:194 Misleading public announcements
A person who makes public or allows to be made public an announcement regarding goods or services which he, or the person on whose behalf he acts, presents in the course of a professional practice or business, acts tortiously (unlawfully) if this announcement is misleading in one or more of the following respects, for example as to:
a. the nature, composition, quantity, quality, characteristics or possibilities for use;
b. the origin, the way and the time of manufacturing;
c. the size or volume of the goods in stock;
d. the price or its method of calculation;
e. the grounds for or the purpose of the offer;
f. the awarded distinctions, certificates (references) or other assessments or declarations of third persons, or the used scientific or technical terms, the technical findings or the statistic data;
g. he conditions under which goods are supplied, services are rendered or payment is made;
h. the extent, content or duration of the warranty (guarantee);
i. the identity, qualities, capacity or competence and the person who or under whose control or supervision or with whose cooperation the goods are or will be manufactured or are presented or the services are or will be performed.

Article 6:194a Comparative advertising
- 1. Comparative advertising means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.
- 2. Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:
a. it is not misleading;
b. it compares goods or services meeting the same needs or intended for the same purpose;
c. it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;
d. it does not create confusion in the market place between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor;
e. it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor;
f. for products with designation of origin, it relates in each case to products with the same designation;
g. it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;
h. it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name.
- 3. Any comparison referring to a special offer shall indicate in a clear and unequivocal way the date on which the offer ends or, where appropriate, that the special offer is subject to the availability of the goods and services, and, where the special offer has not yet begun, the date of the start of the period during which the special price or other specific conditions shall apply.

Article 6:195 Revised burden of proof with respect to the correctness end completeness of the advertisement
- 1. If a right of action (legal claim) is instituted (filed) in pursuance of Articles 6:194 or 6:194a against someone who has entirely or partially determined or caused to determine the content and formulation of the announcement, then the burden of proof rests on him with regard to the correctness or completeness of the facts which have been set out in the announcement or which as a result are suggested through it and on which the alleged misleading character of the announcement is based or on which the alleged disallowed comparative advertisement is based. In the event of comparative advertisements the person who has entirely or partially determined or caused to determine the content and formulation of the announcement, must provide within a short period of time evidence as to the material correctness and completeness of the factual data and claims in the advertisement.
- 2. If someone who has entirely or partially determined or caused to determine the content and formulation of the announcement, has acted tortiously (unlawfully) according to Article 6:194 or 6:194a, then this person is liable for the damage caused as a result, unless he proves that he is not to blame for the damage and that he is neither accountable for it on another ground.

Article 6:196 Prohibition of the further use of the announcement or comparative advertisement and the publication of a correction
- 1. If a person, by making public or allowing to make public an announcement as meant in Article 6:194 or by making an unlawful comparative advertisement, has caused or threatens to cause damage to another person, then the court may, upon a right of action (legal claim) of this other person, not only disallow any further use of the announcement or comparative advertisement, but it may also order the tortfeasor to publish a correction of that announcement or comparative advertisement in a way to be set by court.
- 2. If the court awards a right of action (legal claim) as meant in the previous paragraph against someone who is not liable as well for the damage referred to in Article 6:195, paragraph 2, then Article 6:167, paragraph 3, shall apply accordingly.

Section 6.3.4A Liability with respect to electronic communication within the law of property

Article 6:196b Liability of a certification-service-provider for issued certificates
- 1. If a certification-service-provider issues a certificate to the public as a qualified certificate meant in Article 1.1 component ss of the Dutch Telecommunication Law or if he guarantees such a certificate to the public, then he is liable for damage caused to any legal or natural person who has acted in good faith on:
a. the accuracy at the time of issuance of all information contained in the qualified certificate and the fact that the certificate contains all the details prescribed for a qualified certificate;
b. the fact that, at the time of the issuance of the certificate, the signatory identified in the qualified certificate held the signature-creation data corresponding to the signature-verification data given or identified in the certificate;
c. that the signature-creation data and the signature-verification data can be used in a complementary manner in cases where the certification-service-provider generates them both;
unless the certification-service-provider proves that he has not acted negligently.
- 2. A certification-service-provider who has issued a certificate to the public as a qualified certificate or who has guaranteed such a certificate to the public, is liable for damage caused to any legal or natural person who reasonably relies on the certificate for failure to register revocation of the certificate unless the certification-service-provider proves that he has not acted negligently.
- 3. A certification-service-provider may indicate in a qualified certificate limitations on the use of that certificate, provided that the limitations are recognisable to third parties. The certification-service-provider is not liable for damage arising from use of a qualified certificate which exceeds the limitations placed on it.
- 4. A certification-service-provider may indicate in the qualified certificate a limit on the value of transactions for which the certificate can be used, provided that the limit is recognisable to third parties. The certification-service-provider is not liable for damage resulting from this maximum limit being exceeded.

Article 6:196c Liability for services of the information society
- 1. A person who provides a service of the information society as meant in Article 3:15d, paragraph 3, of the Civil Code, consisting of the transmission in a communication network of information provided by a recipient of the service or providing access to a communication network, is not liable for the information transmitted, on condition that the provider:
a. does not initiate the transmission;
b. is not the one who decides to whom the information will be transmitted; and
c. has not selected or modified the information contained in the transmission.
- 2. For the purpose of paragraph 1 the acts of transmission and of merely providing access to a communication network include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
- 3. A person who provides a service of the information society as meant in Article 3:15d, paragraph 3, of the Civil Code, consisting of the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information's onward transmission to other recipients of the service upon their request, is not liable for the automatic, intermediate and temporary storage of that information, on condition that the provider:
a. does not modify the information;
b. complies with conditions on access to the information;
c. complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;
d. does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and;
e. acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.
- 4. A person who provides a service of the information society as meant in Article 3:15d, paragraph 3, of the Civil Code, consisting of the storage of information provided by a recipient of the service, is not liable for the information that is stored at the request of a recipient of the service, on condition that the provider:
a. does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or;
b. upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
- 5. The above mentioned paragraphs do not affect the possibility to get a court order to terminate or prevent an infringement or an injunction for the removal or disabling of access to information.

Section 6.3.5 Temporary regulation of recovery rights

Article 6:197 Limitation of recovery rights
- 1. Articles 6:165, 6:166, 6:169, 6:171, 6:173, 6:174, 6:175, 6:176, 6:177 and 6:185, as well as Section 8.6.4, Section 8.11.4, Section 8.14.1 and Section 8.19.4 of the Civil Code shall not apply to:
a. the calculation of the total amount for which under civil law liability would exist, required for calculating the amount for which a right of recovery can be exercised under Article 107a and Article 99 of the Social Security Act (Work and Income according to Labour Capacity Act), Article 90 of the Invalidity Insurance Act, Article 68 of the Invalidity Insurance (Self-employed Persons) Act, Article 4:1 of the Act on Work and Labour Support for Young Disabled Persons, Article 52a of the Sickness Benefits Act, Article 61 of the Surviving Dependants Act, Article 65b of the Exceptional Medical Expenses Act and Article 8 of the Military Personnel Invalidity Insurance Act;
b. the calculation of the amount, meant in Article 3 of the Recovery Act for Accidents with Civil Servants, above which there is no obligation by virtue of Article 70 of that Act or by virtue of the Act on the Privatisation of the Pension Fund for Civil Servants (ABP).
- 2. Rights arising from Articles 6:165, 6:166, 6:169, 6:171, 6:173, 6:174, 6:175, 6:176, 6:177 or 6:185 or from Section 8.6.4, Section 8.11.4, Section 8.14.1 of the Civil Code are not accessible for subrogation:
a. by virtue of Article 7:962 of the Civil Code, except as far as the payments by the insurer concern the liability of the insured person and another person was liable under these Article;
b. by virtue of Article 6, third paragraph, of the Act on a State Compensation Fund for Damages caused by a Crime of Violence.
- 3. The person whose rights of recovery have been excluded because of the provisions in the previous paragraphs or who can no longer appeal for this reason to a subrogation, is not able to acquire the rights meant in paragraph 2 by agreement, nor is he able to let someone else exercise his rights in his or someone else’s name.