When are you entitled to compensation? Specialized lawyer explains
As a lawyer for damages, this is a frequently asked question. Compensation for damages and liability are two concepts that cannot exist without each other. After all, there is no compensation without liability. It will therefore first have to be determined whether there is liability. Liability can arise from an agreement (a party falls short of an obligation), but also from the law. Many examples can be given, where tort liability is the best-known. It must be remembered here that the basic principle in the Netherlands is that everyone bears their own damage and so it must be well argued why the other person must pay compensation.
How do you claim compensation?
Usually it starts with a claim of liability. A specialized lawyer is therefore advisable. The statement of liability must namely express motivated and substantiated why the other person is liable and on what legal bases. When it comes to contractual liability, it is first necessary to carefully consider which strategy will be maintained. Do you want to fulfill the agreement, compensation or do you want to get rid of the agreement? To ensure that the claims do not become time-barred, the limitation period is interrupted with a liability claim. It is then important to indicate which claims there are: if a claim is forgotten, there will still be a risk of limitation. As a compensation lawyer it is always important to inventory what the exact facts are and what damage can be claimed.
Settlement or procedure on compensation?
In almost all cases, a response will follow from the person who holds you liable. In many cases this leads to settlement negotiations about the amount of the compensation. Undoubtedly, not every damage will be recognized immediately, but usually a conversation is started. In complex cases sometimes under the guidance of an expert, for example by mutual lawyers, or under the guidance of a mediator and / or experts in compensation.
What damage is eligible for compensation?
The main rule in determining damage is that a comparison must be made with the current situation and the situation in which the damage causing event would not have occurred. There is also talk of a comparison between the ‘Ist situation’ (the current situation) and the ‘Soll situation’ (the hypothetical situation). After all, the main purpose of liability law is to repair damage suffered. In complex files, in addition to a compensation lawyer, an expert in the field of damage calculations is engaged.
Liability of contractors, accountants, notaries and banks
It goes without saying that everyone can be held liable, but there are also special situations of liability. It follows from our Dutch Civil Code that service providers such as accountants, notaries and lawyers must exercise the care of a reasonably acting contractor. The question is often what can be expected. Logically, a notary may be expected to check the land registry, for example, and given their social position and professionalism, banks may be expected to do more than the baker on the corner. Advising complex financial constructions can, but must also be well explained. Accountants have a far-reaching duty of care, partly due to their special and independent role. The required care that has to be exercised is often covered by the regulations.
Can liability be excluded?
Certain liability cannot be excluded, due to mandatory law in our Dutch Civil Code, such as the exclusion of liability by the employer. Consumers are also extensively protected, so that liability can hardly be excluded. This is different for business parties: liability can be limited in the general terms and conditions. This is also known as an exoneration clause or waiver. However, such terms are also tested for reasonableness and fairness; sometimes the terms are pushed aside.
When can I claim compensation?
A number of legal requirements must be met in order to be able to claim damages.
The first important question is whether there is imputability. No compensation without imputability. There must also be real damage. Damage can be material damage, but also immaterial damage.
Is there a causal link between damage and deed?
There must be a causal link between the damage and the damage-causing event. That is not always entirely clear, because the question is what would have happened without the damaging event.
Relativity in compensation?
You are only entitled to compensation if the relevant rule is also intended to prevent such damage.
Fennek lawyers is happy to assist you in claiming compensation
Do you want to know if claiming damages is possible and if so, how much that can be? Our lawyers are happy to help you with this. A team of specialists is available to calculate and substantiate the damage items. Contact us so we can help you further.