In a textbook on Dutch property law, we found the following example:
A criminal robs an elderly man of all his savings, 20,000 euros in total. As a result of this cowardly attack, the neighbourhood raised 10,000 euros for the benefit of the robbed man.
The question is now whether the criminal should pay 20,000 euros or 10,000 in compensation to his victim? As a general rule (in Dutch law) people should not gain from a civil wrong, i.e. compensation should not be greater than the loss one has suffered.
The elderly man has lost 20,000 during the robbery, but he got 10,000 from his neighbours as a result of the robbery. Hence is total loss is only 10,000. Consequently the robber should only pay 10,000 euros to his victim. But in this case the robber gains 10,000 from his crime, which seems to be unfair. On the other hand if the robber has to pay 20,000 euros back, the elderly man gain 10,000 euros as his wealth is increased from 20,000 to 30,000. Hence the victim would be better off as a result of this crime, since without the robbery he would only have 20,000.
Both scenarios are uneasy. The latter one would create incentives for people to “fake” crimes in order to exploit public sympathy for monetary gain. The former scenario will encourage people to commit crimes, because there is a possibility criminals could keep some of the loot. Since the legislator found this case a greater evil than the possibility of people to fake crimes, it has decided that in similar cases that criminals should pay full compensation, even if their victims would be consequently better off than before the crime.
Our solution would however be the following. The robber should pay 20,000, but only 10,000 would go to the victim while the remainder would go to those neighbourhood residents who had made a donation. What do you think?
Nieuwenhuis, J.H. Hoofdstukken vermogensrecht, zevende druk. Kluwer, Deventer 2003.