It is important to note that a legal entity, such as a limited liability company or a foundation, is an abstract entity, created by the law. With respect to the possibility of obtaining rights and obligations, this legal entity is equal to a natural person. However, there must always be a legal act or a factual act by a natural person, because the legal entity itself cannot act without the intervention of natural persons. Next, principles of attribution are necessary, to attribute the acts of these natural persons to the legal entity. The legal doctrine regarding attribution of acts is codified in statutory law but also developed in case law.
As for legal acts, Dutch Caribbean statutory law provides for a legal framework of representation in general, which is in large part also applicable to the representation of a legal entity. Acts performed by the directors in their capacity as director of the legal entity are therefore attributed to the legal entity. They do not bind the director himself but only the legal entity.
As for factual acts, the attribution criterion according to which acts by the natural person such as an unlawful act can be attributed to the legal entity, is mostly developed in case law. From the Supreme Court’s well-known judgement of April 6, 1979 (Reuvers v. Gemeente Zwolle), it follows that for the answer to the question of whether or not a legal entity can be held liable in relation to acts performed by a natural person, it is decisive whether such an act in society is perceived to be an act performed by the legal entity, which depends on common opinion and the circumstances of the case at hand. A circumstance that may be particularly important with regard to this criterion is the position of the acting (natural) person within the legal entity. For instance, the circumstance that the acting person was sole director (and UBO), and “controlled” the legal entity, played a major role in some case law.
A guiding ruling is the Supreme Court judgment of February 27, 2009. In this case, A establishes a foundation, foundation A, with the purpose, inter alia, of holding the real estate where A lives. Foundation A acquires the ownership of the real estate and sells the beneficial ownership to A. Some time later, A establishes another foundation, foundation B, for the purpose of being the beneficial owner of the real estate and managing the assets of A. Upon the establishment of foundation B, A sells the beneficial ownership of the real estate to this foundation. A is sole director of both foundations. The central issue in cassation is whether foundation A committed an unlawful act towards the creditors in A’s bankruptcy for cooperating in (maintaining) the ownership structure with the sole purpose of frustrating the recovery of A’s creditors. Here, because A controlled the foundation, A’s unlawful intent was deemed to be the intent of the foundation, and thus there was an unlawful act by that foundation.
Although case law and legal doctrine speak of attribution of an unlawful act to the legal entity, case law shows that strictly speaking it is not necessarily the unlawful act that is attributed to the legal entity but it is the factual act itself that is attributed to the legal entity, as a consequence of which the legal entity can be held liable. It is possible that the natural person who acted did not himself commit an unlawful act, while the legal entity to which the act is attributed did commit an unlawful act. This also becomes clear if, for example, two natural persons (independently or not) perform an act with certain knowledge while acting for the account of the legal entity. It is possible that each act in itself in light of the knowledge of each individual natural person does not constitute an unlawful act towards a third party. However, when considered together, both acts and the knowledge of both natural persons do constitute an unlawful act. The acts and the knowledge are merged, so to speak, within the legal entity and therefore only the legal entity shall be deemed to have committed an unlawful act.