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Over de grens van de onrechtmatige daad

Op 12 januari 2022 verdedigde Mirjam Franke het proefschrift 'Over de grens van de onrechtmatige daad'. Het promotieonderzoek is begeleid door prof.mr. A.G. Castermans en prof.mr. J.H. Crijns.

Mirjam Franke
12 januari 2022
Leids Repositorium

Article 162(2) of Book 6 of the Dutch Civil Code sets out the central concept of non-contractual liability law by providing a definition of what is deemed a tortious act. The list of different types of tortious acts concludes with the qualification: ‘except for the presence of a ground of justification’. Thus, the door to the exception to the core of non-contractual liability law has been left wide open. A fascination for this ‘escape’ incorporated in Dutch liability law was one of the motives for this dissertation. This study set out on a journey of discovery through the full breadth of non-contractual liability law, constantly viewed from the perspective of the exception to the rule. The first part of the dissertation is a general exploration of the area of research. The different types of torts are described, the concepts of justification and grounds of justification are defined and the distinction between the grounds of exculpation is provided, and a comparision with criminal law is made. The second part of the study classifies the subject matter. For this purpose, the different types of justifications are defined and divided into categories: complete, incomplete and conditional justifications. The third part of the dissertation is devoted to the principles of justification: culpa in causa and proportionality and subsidiarity. The focus of the book then shifts to the content of the justification. To that end, in the fourth part of the book justification is considered in light of wrongfulness, guilt and relativity. The fifth and final part of the dissertation deals with the legal effects of the presence of a justification: the impact on the judgements of the act and of the obligation to compensate.

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