Compensation of Non-pecuniary Loss in The Netherlands: Past, Present, Predictions

Abstract The law on compensation of non-pecuniary loss in The Netherlands is in this paper approached from a historic perspective, because this sheds light on the current debate which still seems to fight the historical Dutch reluctance towards this head of damages. Dutch law and legal thinking on non pecuniary loss have developed against a background of Roman law, Canon law and indigenous law. Compensation for non pecuniary loss was certainly possible before the codifications of the 19th century; the code of 1838 was ambiguous about it and led to much discussion and ambivalent case-law. Not until 1943 was the issue decided by the Dutch Supreme Court, in favour of compensation. The right to compensation of non-pecuniary loss was in the modern Civil Code of 1992 explicitly granted in both contract and tort and is recognized in a number of types of cases, limitedly enunciated by statute. This ‘closed model’ does, nevertheless, not impede the courts from developing the categories of cases in which a right to compensation is accepted. In this paper these developments are described and evaluated. Furthermore, perspectives and desires for further developments with regard to damages for bereavement, satisfaction in case of infringements of fundamental rights, improvement of the assessment of quantum and increase of quantum are drawn and advocated.

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