Een rechtseconomische analyse van het Nederlandse onrechtmatigedaadsrecht

The three main goals of tort law that are distinguished in contemporary Dutch legal literature (compensation, prevention and loss spreading) all recur in the Law and Economics goal (minimization of the total costs of damaging events), although compensation is regarded as the means with which to strive for prevention and loss spreading. In this study, among other things it is analyzed whether the three forms of unlawfulness from art. 6:162 Civil Code from a Law and Economics perspective all have an independent rationale, or that the negligence rule in the end is always determinative. Furthermore, it is argued that the Law and Economics approach of the negligence rule weighing the costs of care against the losses that can be prevented with it fits well in Dutch law. Subsequently, the mutual relationship between unlawfulness and accountability and between fault liability and strict liability is analyzed. Different situations of strict liability in Dutch law are evaluated from a Law and Economics point of view, and many of them prove to fit well in the Law and Economics framework. In the legal duty of compensation, it turns out, among other things, that the damages for fatal accidents are much too low from a Law and Economics viewpoint, that the doctrine of Demogue-Besier, that requires a causal relati! onship between the unlawfulness of the act and the losses, should be restored, and that many of the elements of imputation according to reasonableness do not belong in the causation phase or are even totally irrelevant. Finally it is argued that the requirement of relativity from art. 6:163 Civil Code can be deleted. The systematic framework of analysis that Law and Economics offers, makes it possible to rise above the yes-or-no-character of appeals to authoritative writers and legal judgments, and can provide relevant insights to lawyers.

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