Influential cases

Lindenbaum vs. Cohen dealt with a printer named Cohen who had persuaded an employee of a competitor (Lindenbaum) to give him the price quotations for potential customers. As a result Cohen was enabled to offer lower prices. At that time there was no statute to punish this behaviour. Butl the district court thought it was unlawful, but the Court of Appeal quashed this judgment, following an earlier line of case-law, it held that only those acts that are in violation with a statutory rule can be called ‘unlawful’. The Dutch Supreme Court took the view that this restrictive approach was supported ‘neither by the words of article 1401 nor by the legislative reasons underlying it’. An unlawful act is ‘an act or omission that is in violation with a subjective right or in violation with a legal duty imposed on the defendant or is contrary norms of proper social behaviour’. According to the Court, this definition includes the act by one who, for his own benefit, persuades an employee of the competition to reveal any professional secrets of his master. This new position adopted by the Dutch Supreme Court made the need for a statutory definition regarding the concept of unlawfulness less urgent. The court – on its own – already made this into law, acting like a legislator.