Other party liable? Then the damage still

If the court determines that an opposing party is liable, the proceedings have not yet been won. The next thing to do is to determine what the damages are. This is often thought of too lightly. Because substantiating damages is a delicate matter. The lawyer at Lexys Advocaten explains the compensation claim.

Causal relationship in damages after liability

Indeed, the very first step is to prove (or, if you are a defendant: disprove) that there is a causal connection between the conduct for which the other party is liable and the damages. To calculate what those damages are, a comparison is often made between the position you are in after the unlawful conduct, and the situation in which you would have been without that conduct. But even the amount of damages resulting from that comparison is often open to question.

Attributability, own fault and offset of benefit

This is because the damage is not always attributable to the party liable for damages. This may be, for example, because attribution is not reasonable under the circumstances. In addition, there may be own fault. The law states that if the damage is (partly) the result of one's own fault, it is not (entirely) attributed to the party liable for damages. Furthermore, consider the situation where there are multiple (possible) causes of the damage or multiple culprits. In addition, consider the situation where the unlawful conduct has also resulted in a benefit for the other party.  

Contractual limitations on damages and exoneration clause

It is also possible that in a agreement contain provisions on the extent of the compensation obligation. For example, the NVM purchase agreement for residences the standard provision that at hidden defects only repair costs are eligible for reimbursement. Thus, consequential damages remain at one's own expense. Such an exoneration clause may also be included in the terms and conditions of an entrepreneur. This may then state that the obligation to pay compensation is limited to the sum insured, but it also happens that the obligation to pay compensation is excluded altogether. 

Damages liability excluded? It may not always

Again, such provisions can be nuanced. Reliance on them will soon be unreasonable if there is intent or prior knowledge. In addition, an exoneration clause may not be valid because of how it is worded, because it is on the black list or gray frame of general conditions states.

Lawyer compensation and liability

All these situations, affect the compensation obligation and the carrying obligation of the various parties involved. What the outcome should be in the specific case and what amount is eligible for compensation and what is not, depends on all the circumstances of the case. The liability lawyer at Lexys Lawyers can tell you more about this based on your case.