ការទទួលខុសត្រូវរបស់ក្រុមហ៊ុនក្រោមច្បាប់ហូឡង់៖ កិច្ចសន្យា ការរំលោភបំពាន និងនាយក

A company in the Netherlands can be liable on three bases: breach of contract, tort (unlawful act) and strict, so-called qualitative liability for its employees, contractors, objects and products. All three are in Book 6 of the Dutch Civil Code (BW); a claim that fails on one basis can still succeed on another, and directors can in some cases be held personally liable as well.

Which routes to liability exist under Dutch law?

Contractual liability arises when a party fails to perform an obligation it took on. Tort liability under Article 6:162 BW arises without any agreement, when conduct is unlawful and can be attributed to the person who acted. Qualitative liability attaches to a capacity rather than to conduct, for example as employer, possessor of a building or producer of a product.

Whichever route is used, four elements recur: a breach or unlawful act, attributability, damage and a causal link. Under Article 6:98 BW only damage that can reasonably be imputed to the event is recoverable, which keeps remote consequential loss out. Contributory fault of the injured party reduces the award (Article 6:101 BW).

When is a company liable for breach of contract?

A party that fails to perform is liable for the resulting damage under Article 6:74 BW, unless the failure cannot be attributed to it. Force majeure (overmacht) under Article 6:75 BW is narrow: staff shortages, a supplier that lets you down or higher costs are normally your own risk, unless a contractual force majeure clause says otherwise.

Damages for late performance are generally only owed once the debtor is in default (verzuim). That usually requires a written notice of default (ingebrekestelling) giving a reasonable period to perform, unless the deadline was fatal, the debtor said it would not perform, or performance has become impossible. A creditor who skips this step often loses on that point alone.

The recipient of a defective performance must also act. Under Article 6:89 BW the buyer or client must complain within a reasonable time after discovering, or having to discover, the defect; a late complaint ends the claim. Termination (ontbinding) is possible for any breach under Article 6:265 BW, unless the breach is too minor, and can be combined with damages.

When is conduct unlawful in tort?

Under Article 6:162 BW conduct is unlawful if it infringes a right, breaches a statutory duty, or conflicts with what is proper in society under unwritten law. That third category covers most business disputes: unsafe premises, misleading statements to a counterparty, or continuing an activity that a careful operator would have stopped.

For dangerous situations courts apply the criteria of the Kelderluik judgment of the Supreme Court (Hoge Raad) of 5 November 1965, ECLI:NL:HR:1965:AB7079. The questions are how likely inattention is, how likely an accident is, how serious the consequences could be and how burdensome precautions would have been. Those four factors work as an internal checklist for premises, machinery and events.

When is a company liable for its people and its property?

Qualitative liability applies even if management acted carefully. Under Article 6:170 BW the employer is liable towards third parties for errors of its employees if the task increased the risk of the error and the employer had control over the conduct. Article 6:171 BW extends this to non-subordinate contractors who work on the company’s business operations.

The possessor is liable for defective movable objects under Article 6:173 BW, for buildings and structures under Article 6:174 BW and for dangerous substances used in the business under Article 6:175 BW. For landlords, site owners and facility managers these articles amount to a maintenance obligation.

What does an employer owe its own employees?

Towards its own staff the employer has a duty of care under Article 7:658 BW: it must arrange the workplace, equipment and work so that the employee suffers no damage while working. If damage occurs during the work, the employer is liable unless it proves that it met that duty, or that the damage was largely caused by the employee’s intent or deliberate recklessness.

This duty is mandatory: Article 7:658(3) BW forbids deviation to the employee’s disadvantage. The duty to act as a good employer under Article 7:611 BW has also been used to require adequate insurance for employees who take part in traffic for their work. We handle the employment-law side of these cases; the injury claim itself is handled by a personal-injury specialist.

How does product liability work?

Product liability is governed by Articles 6:185 to 6:193 BW, which implement the European product liability regime. The producer is liable for damage caused by a defect, without proof of fault; the injured party proves the defect, the damage and the causal link. Importers into the EU and businesses that put their own brand on a product are treated as producers.

Under Article 6:191 BW the claim becomes time-barred three years after the injured party knew or should have known of the damage, the defect and the producer. The right lapses entirely ten years after the product was put into circulation. A new EU Product Liability Directive, Directive (EU) 2024/2853, extends the regime to software and must be implemented by 9 December 2026; until the Dutch implementing act takes effect, the current articles apply.

តើនៅពេលណាដែលនាយកទទួលខុសត្រូវផ្ទាល់ខ្លួន?

A private limited company (besloten vennootschap, BV) shields its shareholders, but not always its directors. Towards the company, a director is liable under Article 2:9 BW only if a serious personal reproach (ernstig verwijt) can be made; a business decision that turns out badly is not enough.

Towards creditors, a director can be liable in tort, for example when entering into obligations on behalf of the company while knowing that the company could not perform and would offer no recourse. In bankruptcy, Article 2:248 BW makes each director jointly and severally liable for the deficit if the board manifestly performed its duties improperly and this was an important cause of the bankruptcy.

Failing to keep proper accounts (Article 2:10 BW) or to publish the annual accounts on time (Article 2:394 BW) counts as improper performance and creates a presumption that it caused the bankruptcy. The claim only covers improper performance in the three years before the bankruptcy (Article 2:248(6) BW).

តើអ្នកអាចកំណត់ការទទួលខុសត្រូវរបស់អ្នកដោយរបៀបណា?

Between businesses there is wide room to allocate risk by contract: a cap on damages, exclusion of consequential loss, a short notification period. Such clauses usually hold, but a court will not apply an exclusion where reliance on it is unacceptable under reasonableness and fairness (Article 6:248(2) BW), typically where management caused the damage by intent or deliberate recklessness.

General terms and conditions bind the other party, but a clause can be annulled if the terms were not made available before or at the conclusion of the contract (Articles 6:233 and 6:234 BW). Towards consumers the statutory black and grey lists of unfair clauses (Articles 6:236 and 6:237 BW) apply as well.

Insurance is the third layer: general liability, professional indemnity, product recall and directors and officers cover each address a different risk. Policies contain short notification deadlines and exclusions, so read the policy alongside the contract it is meant to back up.

Which deadlines apply when a claim arrives?

A damages claim becomes time-barred five years after the injured party became aware of both the damage and the liable person, and in any case twenty years after the event, under Article 3:310 BW. For a damages claim, a written notice interrupts the limitation period only if it is followed within six months by a further act of interruption, such as issuing a writ or an acknowledgement (Article 3:317(2) BW).

When a claim comes in, notify your insurer at once, because late notification can cost cover. Secure the evidence (production records, maintenance logs, e-mails, the general terms actually sent) and do not acknowledge liability before the legal position is clear. Then check on which basis you are sued, whether the claimant complained in time under Article 6:89 BW and whether the damage can be imputed to the event.

What should you check as a company facing a claim?

• On which basis the claim rests: contract, Article 6:162 BW, or qualitative liability.
• Whether you were validly put in default before damages were claimed.
• Whether the claimant complained within a reasonable time (Article 6:89 BW).
• Whether your limitation clause and general terms were validly provided.
• Whether you notified your insurer within the policy deadline.
• Whether the claim is time-barred under Article 3:310 BW or Article 6:191 BW.

What should you check as a company making a claim?

• Whether you sent a written notice of default with a reasonable period to perform.
• Whether you complained about the defect promptly and in writing.
• Whether your evidence of damage and causation is secured.
• Whether a director may be personally liable, for example under Article 2:248 BW.
• Whether your interruption letter is followed up within six months.

What can we do for you with company liability?

របស់​យើង មេធាវីទទួលខុសត្រូវ និង មេធាវីក្រុមហ៊ុន work on both sides of liability disputes:

• We review your contracts, general terms and limitation clauses against the risks you actually run.
• We draft the notice of default, complaint or interruption letter.
• We assess an incoming claim on each possible basis and draft the response.
• We advise directors on personal exposure under Articles 2:9 and 2:248 BW.
• We conduct proceedings before the District Court or the subdistrict court (kantonrechter).

សេចក្តីសង្ខេប

• Companies can be liable in contract, in tort under Article 6:162 BW and on a strict basis for employees, objects and products.
• Contract damages usually require a notice of default; defects must be reported within a reasonable time.
• Directors are personally liable only in specific cases, including improper management before bankruptcy (Article 2:248 BW).
• Limitation clauses and general terms work only if validly agreed and provided.
• Damages claims lapse after five years from knowledge, with a twenty-year long-stop (Article 3:310 BW).

សំណួរ​ដែលគេ​ច្រើន​សួរ