Does the physical or material damage caused by landlords to tenants due to a defect in the rented building or the rented contents always fall under art. 1382 to 1386bis of the Civil Code?

Answer

Dear Peter,

Your question therefore concerns the BA private life insurance taken out by a landlord, and more specifically whether this insurance covers all physical damage and property damage caused by the landlord to the tenants.

First of all, I must state that there is a distinction between civil liability (contained in Articles 1382-1386bis of the Dutch Civil Code) on the one hand and contractual liability on the other. The latter liability exists when a contracting party is guilty of “default”, ie does not fulfill its contractual obligations. Contractual liability is therefore much more specific than BA, as this BA plays with any negligence, even apart from a contract.

In other words: contractual liability is present when one evades the obligations that one has assumed under a contract, civil liability can be incurred for any negligence, 24 hours a day and 7 days a week.

You now see the problem: when can there be CONCLUSION (or coexistence) of both forms of liability? In other words, isn’t it the case that every contractual breach is also a general (BA) negligence, given the 24/24 and 7/7 criterion?

The Court of Cassation has always ruled in the following sense: contractual liability excludes the CA, except in two series of cases:

1. when the contractual error constitutes a crime, i.e. a criminal offense within the meaning of criminal law.

2. when, in addition to the contractual error, an error has been committed within the meaning of Article 1382 of the Civil Code AND there is also other damage in addition to the damage resulting from the non-compliance with the contract.

What about the insurance? The third-party insurance certainly does not cover the contractual damage. But what about the two aforementioned cases of CONCENSE? In that case, the non-contractual damage, i.e. the damage resulting from the violation of Articles 1382-1386bis of the Dutch Civil Code, is in principle included in the cover. But here is an important caveat: on this point insurance policies are not always accurately drafted, so that those policies are sometimes open to interpretation.

In conclusion: I cannot give you a definite answer. The problem you mention is one of the most controversial problems in insurance law. So there’s not much you can do but urge the insurance company to cover it, and then wait for its response. If this reaction is to your detriment and it concerns significant damage, then it is advisable to call on a lawyer.

Sincerely-kind regards.