What is Duty of care?

The duty of care has two foundations. The statutory duty of care flows from the general provisions of the Dutch Civil Code, in particular Article 7:401 BW for service agreements. This provision states that a service provider must exercise the care of a competent contractor in performing their work. That means: acting as a reasonably competent professional in comparable circumstances would act.

In addition to the statutory standard, parties may agree contractual care obligations. An IT supplier may be contractually required to take backups, apply updates in a timely manner, and report security incidents. An accountant may, in addition to their statutory duty, be contractually responsible for monitoring tax filing deadlines.

The standard of care varies by profession and context. For advisory roles such as lawyers, accountants, advisers, and estate agents, the bar is high: they must proactively warn about risks, even if the client has not explicitly asked. For service providers such as contractors or cleaning companies, the standard focuses more on technically competent execution.

Breaching the duty of care does not automatically lead to liability. The injured party must also demonstrate a causal link between the breach and the damage suffered, and that the damage could not have been avoided by the injured party themselves (contributory negligence).

In contracts, the duty of care is sometimes expanded or limited through exclusion clauses. Note that an overly broad limitation of the duty of care may be deemed unreasonably onerous by a court, particularly against consumers or weaker contracting parties.

The duty of care is the legal basis for many liability claims in professional services. If you suffer loss because an adviser, accountant, or supplier failed to exercise sufficient care, you can invoke breach of duty. Conversely, as a service provider you face liability risk if you do not act as a reasonably competent professional would.

For SMEs it is important to know that the duty of care cannot be fully excluded through contractual limitations. Courts scrutinise exclusion clauses critically, particularly when damage results from intent or conscious recklessness.