De zorgplicht van de bruiklener: van custodia naar culpa

The borrower’s liability, as stated in article 7A:1781 section 1 of the Dutch Civil Code, differs from the Roman law tradition. In Justinian and Medieval Roman law the borrower’s liability was determined in accordance with the utility principle. As a consequence, the borrower was in some cases even without fault liable for theft. Roman law still played a role in the development towards the rule in the Dutch Civil Code, but ultimately the influence of the French Civil Code turned out to be stronger and has to be considered as the turning point in the interpretation of the borrower’s liability. The duty of care of a borrower comprise now merely due diligence (‘zorg van een goed huisvader’). Judges make a proper assessment to determine the liability of the borrower, taking into account the interests of the parties, the obligations of the parties and the circumstances