Code Civil Art. 1382:
Every human act which causes damage to another person obligates the agent to
compensate the damages.
Code Civil Art. 1383:
Everyone is not only responsible for damage caused by his acts, but also for damage
caused by his negligence or imprudence.
TheCode Civilis not very specific about which acts lead to liability. This is
different with the GermanBurgerliches Gesetzbuch€. The following central provi-
sion gives an example:
Bu ̈rgerliches Gesetzbuch}823:
A person who wilfully or negligently and unlawfully injures the life, body, health,
freedom, property, or other right of someone else, is obligated to compensate him
for any damage arising therefrom.
The same obligation attaches to a person who infringes a statutory provision
intended for the protection of others. If according to the purview of the statute
infringement is possible even without fault, the duty to make compensation arises
only if some fault can be imputed to the wrongdoer.
The DutchBurgerlijk Wetboekcompromises between the abstraction of theCode
Civiland the concreteness of theB€urgerliches Gesetzbuch:
Burgerlijk Wetboek, Art 162, Sections 1 and 2:
A person who commits an imputable unlawful act towards someone else is
obligated to compensate the damage caused by this act.
An act or omission counts as unlawful if it infringes a right, violates a legal duty or
violates an unwritten norm that specifies what is required in society, unless there is
a ground of justification.
Different as these provisions may be, they have in common the fact that they protect
both individual rights and written and unwritten legal norms against both inten-
tional and merely negligent violations.
6.4.2 The Cellar Hatch Case
In case of written norms, it is often easy to establish whether an unlawful violation
has occurred. This may be different in connection with infringements on rights and
violations of unwritten norms. The issues that we encountered in connection with
duties of care in common law reappear here. The Dutch cellar hatch case illustrates
this nicely.
This case, known from its facts as theKelderluikor “cellar hatch” case, is both a
legendary and landmark case in Dutch law. The facts ofKelderluikwere the
following:
6 Tort Law 109