How does tort differ from breach of contract?

Breach of contract concerns a failure to perform an agreed obligation. Tort liability arises independently of any contract when someone unlawfully causes damage. The same conduct can sometimes give rise to both.

What are the requirements for liability in tort?

Article 6:162 BW requires an unlawful act, attribution to the wrongdoer (fault or risk), damage, a causal link, and that the breached norm protects against that kind of damage (relativity).

Can a contractual liability cap protect against tort claims?

Between contracting parties a well-drafted cap can limit tort claims that arise out of the same relationship, but it does not bind third parties who are not party to the contract and who suffer harm from the wrongful act.

What is the role of the relativity requirement in Dutch tort law?

Under article 6:163 BW there is no liability unless the violated norm was intended to protect the claimant against the kind of damage suffered. This "relativity" requirement narrows recoverable claims and is frequently invoked as a defence.

Can an employer be liable in tort for the acts of its employees?

Yes. Under article 6:170 BW an employer is vicariously liable for damage caused by an employee's error in performing assigned tasks, provided there is sufficient connection between the task and the error.

Tort (wrongful act)

A wrongful act causing harm that gives rise to liability outside of any contract.

Definition

A tort, or wrongful act, is a non-contractual ground for liability. It arises when a person unlawfully causes damage to another and the act can be attributed to them. Under article 6:162 BW the wrong may consist of a violation of a right, an act or omission breaching a statutory duty, or conduct contrary to unwritten standards of proper social conduct. Liability requires fault or attributable risk, damage, and a causal link.

Example

A contractor whose negligence damages a neighbouring building can be liable in tort even without any contract with the building's owner.

Why this is a business risk

Tort liability arises regardless of whether a contract exists or what a contract says, so a contractual liability cap does not automatically limit a tort claim. Businesses that cause harm through negligent operations, unsafe products or data misuse can face tort claims from third parties who have no contract with them at all. The absence of a written agreement does not provide protection: the standards of proper social conduct set an independent floor of obligation.

How to manage it

Maintain adequate public liability insurance to cover third-party personal injury and property damage claims that arise outside any contract.
Implement operational safety standards and document compliance, so that if a tort claim arises you can demonstrate the care exercised.
Note that contractual limitations on liability may not extend to tort claims from third parties, and review your contracts for this gap.
When operating near third-party assets or persons, document the steps taken to prevent foreseeable harm.

Legal references

BW 6:162 Dutch Civil Code: wrongful act Dutch law

Unless marked otherwise, references are to Dutch law (Burgerlijk Wetboek, the Dutch Civil Code); EU instruments such as the GDPR apply across the EU. This is general information, not legal advice. Other jurisdictions treat these concepts differently. Verify the current text and your situation with a qualified lawyer.

Frequently asked questions

Common questions about this term.