A three-part distinction

With regard to liability a three-part distinction can be made. The first distinction relates to the basis of the liability: liability pursuant to a contractual relationship (the attributable failure in this respect) and liability pursuant to a wrongful act.

Another distinction relates to the personal liability (thus for the party’s own actions or omissions) and vicarious and/or strict liability: liability for or the acts and omissions of others (vicarious liability) or liability for certain things that happen (strict liability).

For example, employers can be held vicariously liable for certain actions of their employees. According to the Aruba Civil Code (‘ACC’), a person who exercises parental authority over a child under fourteen years of age, for instance, is liable for damage caused to a third person by that child (Section 6:169 subsection 1 ACC) and the person in whose service a subordinate fulfills his duties is liable for damage caused to a third person by the fault of such subordinate (Section 6:170 subsection 1 ACC).

Strict liability is the imposition of liability on a party without a finding of fault. For instance, a person who is a possessor of a movable object known to possess qualities constituting a special danger for persons, is liable if this danger materializes (Section 6:173 subsection 1 ACC).

A third distinction is that between internal and external liability. In connection with limited liability companies I would like to make this distinction such that in the event of the managing director prejudicing the company’s assets, this is called internal liability and in the event that third parties are prejudiced this is called external liability (wrongful act).

Karel Frielink
Attorney (Lawyer) / Partner

(6 May 2016)


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