Legal System of Civil Law in the Netherlands

Foundation of Dutch civil law

Basics of Dutch civil law in comparison with other legal systems

Explaining a legal system to someone from a foreign country is difficult. Not only because of the language differences, but because it's often not possible to give a correct translation. A legal term in one country simply has a different meaning in another, as it's embedded in an autonomous legal system, in which it has its own position, with its own specific significance. Although the law can be regarded as a conversion of thoughts and developments in society, it is still a purely man made instrument. In contrast, for example, to mathematics, physics or chemistry, it can't fall back on objective facts which are the same everywhere. Just a few basic principles can be found in each legal system. For example: all humans, irrespective of their culture, religion or race, wish to own something for themselves. And they also want to be able to provide for the wants of their next of kin. In every culture it's a common belief that one should keep his promise and that the impact of wrongful behaviour must be repaired by means of (financial) compensation. All these main points have to be regulated in a fair and clear system, that is reliable for everyone.

These main points - these wanted legal effects - are in the most (western) countries the same. But the way to achieve them, varies, because the beginning point, formed by each country's own history and political and social developments, is so different. The legal foundation, grown in the course of centuries from every country's independent cradle, is therefore diverse. For this reason it's very difficult to transfer a certain legal term from one legal system to another, even when at first sight an appropriate translation seems to be present. This translation, however, only reflects a superficial meaning. On the surface a specific term, used in a foreign legal system, seems to indicate the same right or juridical act as in the legal order with which one is familiar. But looking closer, one will notice that in fact it's something else. So a translation to the letter may put someone easily on the wrong track. That’s why, when studying a foreign legal system, it's always important to stick to the meaning that a certain term has within that foreign system itself and put aside the meaning of the term in another legal system. For this reason the most important legal structures and terms of Dutch civil law are explained on this Internet site. The definition of their meaning only applies within Dutch law. Again: be aware that you must let go the meaning which is so well-known to you within the legal system of your own country. You are easily fooled. When you're not certain, always examine which meaning a used term exactly has according to Dutch law.

Especially lawyers from another civil law country, like France, Italy or Germany, will easily fall into the before-mentioned trap, because the used terms are so recognizable. But also lawyers from Anglo-American countries should be on their guard for misinterpretations. Indeed, they encounter in Dutch law often terms with which they have no experience, so they won’t be tempted to trust on the meaning that these words have had for them so many years. But the system of civil law (private law) is so different from common law that it's hard to place the term or subject in the right context. The same applies of course to lawyers from a civil law (continental) country studying Anglo-American law.

It is therefore, when reading the pages of this Internet site, of vital importance to keep the accompanying definitions always in mind. When these words or terms are used on this Internet site, they always mean what is described in these definitions, nothing more, nothing less, irrespective of how they could be translated otherwise or of their meaning in another legal system. Some terms are also defined in the Dutch Civil Code. This legal definition is not always adopted, but now and then replaced by a more general meaning, if this seemed to be more appropriate in view of a general comment on the Dutch legal system.

Continental Law and Anglo-American Law

Worldwide there are, at least in the Western world, two mainstreams of private law systems: civil law, also known as continental law, and common law, also described as Anglo-American law.

Generally one could say that an Anglo-American law system exists in England, Ireland, the United States, Canada, Australia and New Zealand. But it also appears in the former British colonies in Asia and Africa, like India, Pakistan and Malaysia. All other countries outside the Arabic world, for instance those in continental Europe (France, Spain, Italy, Germany, Belgium and the Netherlands) and its former colonies in Asia, Africa and South America, have a continental law system. Continental law (or Romano-Germanic law) is the predominant system of law in the world, although Anglo-American law plays a major part too, since Britain was, and the United States of America are, the leading economic power of the world.

Continental law as a legal system is often compared with Anglo-American law. The main difference between both systems is usually described as follows.

Within a continental law system there is a body of written law, issued by Parliament, such as codes and statute law, that must be applied by judges to each individual case. The assumption is that statute law regulates all cases that could occur in practice, and when certain cases are not regulated by statute law, the courts should, in order to fill up the gap, apply the general principles on which a comparable statutory provision of the Civil Code is founded. In an Anglo-American law system such a body of written codes and statute law, issued by Parliament, is absent, but instead there is a less coherent foundation of certain judgments which apply because they have been developed over hundreds of years as the legal precedent. In an Anglo-American law system abstract legal rules, which have meaning for all similar situations in future, are drawn from specific cases by means of judge-made law. The ruling in a specific case sets the legal standard. As of that moment this rule has to be followed by all other (lower or equal) courts, until a higher court gives a dissentient judgment. But then this new judgment again sets the abstract legal rule which, as of then, has to be observed by all courts. The courts are very reluctant to rule differently. They will nearly always follow an earlier given judgment, even when it is issued decades ago. This method is indicated with the Latin term ‘stare decisis’. A continental law system, on the other hand, starts with abstract legal rules, established by Parliament, which immediately have to be observed by all courts, high and low, when making a judgment in a specific case. In theory the judges aren’t bound by earlier judgments of higher or lower courts, but only by the law issued by Parliament. This means that Parliament can always set aside a not wanted judgment of a court by enacting new legislation.

In reality the differences between both systems aren’t so apparent. In Anglo-American law the government enacts a lot of statutes too, even on the field of civil law. The rules of these statutes have to be followed by court, also when they’re in contradiction with earlier judgments. In such cases statute law precedes and forms the precedent. In continental law systems it’s clear that not every detailed situation can be literally incorporated in a statute or code. So the courts often have to decide themselves on the grounds of granted discretion how the situation must be solved within the system of law. And in every continental law country the lower judges, as a rule, follow the earlier judgments of higher courts, especially of the Supreme Court. So also in continental law systems, as far as the statutes don’t provide a legal rule, the law is made by judgments of various courts, at least until Parliament passes a different act.

But an important distinction remains. Continental law is much more systemised than Anglo-American law and its rules are intended to regulate many potential situations. So it’s possible to write all these rules down in a Civil Code. In continental countries, like France (Code Civil), Switzerland (Code Civil), Germany (Bürgerliches Gesetzbuch), Italy (Codice Civile), Spain (Código Civil), Belgium (Burgerlijk Wetboek) and also the Netherlands (Burgerlijk Wetboek), civil law is dominated by one general statute book – the Civil Code -, which is the foundation of all other acts and regulations of civil law. Anglo-American law countries don’t have such a basic Civil Code. The foundation of their civil law is formed by the construction of all judgements which are generally recognised by scholars, judges and government as the precedent decisions. As a result, law students in Anglo-American law countries, who want to understand the roots and principles of their legal system, study - instead of the main rules of a Civil Code - the most important precedent judgments that in course of time have been rendered in relation to various legal subjects.

But the difference between continental law and Anglo-American law lies not just in the mere fact of codification. One should be aware that also in a few continental law systems, like that of Scotland and South Africa, and in fact even that of the Scandinavian countries, a basic Civil Code is missing. Thus, such a basic codification is by no means a defining characteristic of a continental law system. The main difference can be found in the way how the law is approached. In continental law systems this approach is methodological and systematic, not only in creating new law, but also in solving individual cases. The rules of law have a general impact and are issued to regulate all kinds of potential (possible) situations. Because of this, continental law countries are able to catch the significant rules in a central code, whereas the judge-made law of Anglo-American systems is so divers and crumbled that it’s impossible to write it all down in a logical and systematic book. In continental law countries, legislation is seen as the primary source of law. That’s why judges tend to look for solutions that will fit in the system of the law, taking into account the intention of the legislator for passing this rule, as expressed in the Parliamentary history of this specific law. This means that judges, when a certain subject isn’t regulated directly by statute law, will search for the general principle behind the law and, if possible, fill up the legal gap in analogy with that principle. So the influence of the act or statute is widened. By contrast, in a common law system, cases and the legal principles behind them are the primary source of law, and statutes are seen as a specific correction of it. Consequently, the statute has to be interpreted narrowly.

For a more extensive explanation on the differences between civil law and common law, see the report ‘A Primer on the Civil-Law System’ by James G. Apple and Robert P. Deyling. See also 'Mixed jurisdictions: common law vs civil law (codified and uncodified)' by William Tetley.

Property rights in rem and property rights in personam

Dutch civil law results, as all continental law systems, from Roman law. As far as property law and contract law are concerned (both forming the law with respect to assets and commercial and financial relationships), the distinction between rights in rem and rights in personam is the most significant one. Rights in rem regulate the legal relationship of a person towards a certain object with regard to the rest of the world, whereas rights in personam (debt-claims) regulate the legal relationship between two persons (the creditor and his debtor).

Rights in rem are property rights, linked to a certain object, with ‘real effect’. The proprietor of such a right can sustain his powers against everyone in the world. Everybody must respect his right and no one is allowed to disturb him in exercising his powers. These rights and powers are always connected to a certain object, such as a movable or immovable thing. Everyone who could encounter this object, has to observe the powers which the proprietor of the property right may exercise over it. Thus, the proprietor of a property right in rem exercises his powers directly with respect to the object itself, regardless who actually keeps it under control ('in rem' is Latin for 'in a thing').

Continental law systems know the so-called ‘numerus clausus principle’. This means that there are only a limited number of rights in rem and also that their content is well defined by law. It's not possible to create other property rights in rem outside these legal standard types. This also applies to Dutch property law, that recognizes the following eight rights in rem: ownership, long leasehold (also known as emphyteusis or perpetual quitrent), easement (servitude), right of superficies, apartment ownership, usufruct, mortgage and pledge. Long leaseholds, easements, rights of superficies, apartment rights and mortgages are only connected to immovable property. Ownership can be related to both, movable and immovable things, whereas a pledge can not be vested on immovable property, but only on movable objects as well as on debt-claims and (intangible) rights, like intellectual property rights. Usufruct can be established on all kinds of objects, therefore on movable and immovable property, debt-claims, intellectual property rights and so on.

Property rights in rem are to be distinguished from property rights in personam. These last rights can be exercised only against one particular person (or one specific group of persons). In Dutch property law these rights in personam are usually claims resulting from an obligation (therefore called ‘debt-claims’). The holder of such a debt-claim is a creditor who may demand that a specific person - his debtor - fulfils the indebted performance. A property right in personam is, as a consequence, never immediately connected to a thing, but always to a specific performance which has to be carried out by a particular person, the debtor. Its effect is relative. The right of the creditor to demand performance is called a debt-claim. In contrast to property rights in rem, Dutch civil law puts no limitations to the content of property rights in personam to be created, although it's always a debt-claim arising from and within an obligation. The creditor and debtor may make almost every performance the object of their contract or obligation (‘open system’), but there's just one overall legal form in which they can construct their legal relationship, and that’s an obligation, for which the law entails special provisions in Book 6 of the Dutch Civil Code. Though the content of an obligation can vary in many ways, the structure is always the same: a debt imposed on the debtor that has to be satisfied on behalf of the creditor; an opposite debt-claim of the creditor against the debtor of which performance may be demanded.

Nevertheless there are other legal duties which as well have to be observed only by one specific person, but which cannot be classified as obligation. Therefore, in those situations, from the point of view of the person entitled to demand compliance, one cannot speak of a 'debt-claim'. Usually these other claims are imposed directly by law. Their influence and effects resemble those of a debt-claim. In practice it’s hard to make a distinction between them.

This systematisation in rights in rem and rights in personam, which appears in all legal systems on the continent, is unknown in Anglo-American law. Nevertheless, in Anglo-American literature the distinction between rights in rem and rights in personam is sometimes discussed, particularly concerning the question what the legal character is of the right of a beneficiary in a trust fund. And although this way of questioning is, to a large extent, abstract and theoretical for Anglo-American lawyers, it can help an Anglo-American lawyer to understand the system of continental law and, vica versa, enables lawyers from continental law countries to study Anglo-American law. Of course, in practice an Anglo-American lawyer, when acting within his own legal system, immediately reverts to the meaning of the property rights that he knows so well, without making a distinction between rights in rem and rights in personam. But also in Anglo-American law there is an important difference between rights that can be enforced against the whole world and rights from an obligation that can only be upheld against a certain debtor.

In Anglo-American property law the distinction between rights in rem and rights in personam isn’t the main one. This system especially differentiates between property rights in immovable objects and in movable objects. Although the distinction between movable and immovable objects also exists in continental law, property law in continental law countries is nevertheless considered as one uniform system, applying to all property rights with regard to every kind of object, movable or immovable. This kind of unity doesn't exist in Anglo-American law. That’s why property law is one of the most difficult fields of law in Anglo-American law systems.

Three fields of law with respect to valuable rights (in continental law and Anglo-American law)

Where it concerns the law related to assets and commercial and financial relationships (the law of 'valuable rights’, also called ‘patrimonial rights’), three different fields of law can be determined in continental law as well as in Anglo-American law:

a. property law;

Property law regulates the rights and powers of persons to all objects, for instance to a house, a car, but also to adebt-claim against a particular debtor, which may be regarded as a property item of its own. Two kinds of property rights may be distinguished: real property rights ('rights in rem') and debt-claims ('rights in personam'). A characteristic of a real property right is that its holder – the proprietor – is able to uphold and enforce his powers to the related object against everyone, thus against the whole world, irrespective of who owns the object or who has another interest or title in it. Such property rights, therefore, have ‘real effect’ (effect in rem). The proprietor of a real right to (or in or on) an object isn’t affected when the owner of that object sells and transfers it to another person. The new owner must respect the already existing real property rights in this object. Furthermore, an older real property right isn't affected in anyway by a property right that is established later on the same object. Debt-claims are property rights as well, yet without real effect. They can only be enforced against the debtor.

b. the law of obligations;

The law of obligations regulates the relationship between a creditor and a debtor, thus between two persons with regard to a certain performance which has to be carried out by one of them and which may be claimed by the other. An obligation can only be upheld and enforced against one person, namely against the debtor who has to fulfil the performance. Since no other person can be held accountable for this performance, the right of the creditor (which has arisen from an obligation and, therefore, is called a debt-claim) has only a relative effect, as far as it concerns the debtor (effect in personam). The law of obligations is a special field of law, related to the law of contract and the law of tort. The legal effect which results from these acts is an obligation. An obligation is a legal bond between two people, the debtor and creditor, consisting of a debt-claim and an accompanying debt. The law of obligations regulates how the proprietor of the debt-claim (creditor) and the person who owes the debt (debtor) have to behave mutually towards each other within that legal bond. But if one looks at a debt-claim from a different angle, one could say that it's also an independent property right in itself, which for instance can be transferred by its proprietor - the creditor – to a third party and which can be encumbered with a pledge or a usufruct on behalf of another person. Yet, it has no real effect.

c. the law of intellectual property;

The effect of intellectual property rights is, just as that of the earlier mentioned property rights in rem, 'real', so that the holder of an intellectual property right can uphold and enforce it against the whole world. With this, these rights look a lot like ordinary property rights. The object of an intellectual property right, however, is always an intellectual idea in itself (and therefore not the material through which this idea reaches expression). The object of a patent is for instance an invention (not the machine that is made according to this invention), while the object of a copyright is a story (not the book or film which tells the story) or another artistic composition (not the picture, photo or CD that has captured this composition) or an industrial name or logo (not the paper or advertisements of the company) et cetera. The holder of an intellectual property right is able to enforce his right to that intellectual object against everyone. No one is allowed to use his idea, thought, story, composition, trade mark et cetera without his permission.

The first two fields of law - property law and the law of obligations - are tied to each other. The legal basis on which a property right is established, transferred or encumbered is usually an obligation. And the debt-claim which arises from an obligation forms in itself a property right that can be transferred to another party and that may be encumbered with a limited property right. This applies both in continental law and Anglo-American law. The approach of property rights and also of obligations, however, differs in Anglo-American law essentially from continental law.

The intellectual property rights are mainly governed by International Conventions and, for this reason, they aren’t characteristic for Anglo-American law, nor for continental law. That's why they want be discussed here any further. Nevertheless they are strongly linked to the law of obligations, since this legal figure usually forms the basis of the creation, transfer, encumbrance or use of an intellectual property right.


Property law in continental law and Anglo-American law systems

The conclusion is that continental systems as well as Anglo-American law systems distinguish property law and the law of obligations as a separate field of law. In both systems these fields of law have mutual connections. But with this conclusion, the similarities stop. The structure of property law and the law of obligations in Anglo-American law differs in many ways from that in continental law countries, which can be explained by historical and methodical causes.

In Roman law the distinction between movable and immovable property was not significant. That's why in continental law countries, at least in theory, the nature of the object to which a property right is related, plays no part at all. The right of ownership of a bicycle and that of land are largely the same. Both owners may exercise the same powers to the object of their property right. And when the object is actually in possession of someone without a right or title, both owners may claim their property back with the same action (in the Netherlands: the right to claim the return of property of Article 5:2 DCC). This fundamental character causes that continental law systems have a uniform structure for all property rights, irrespective of the nature of the object to which these rights are linked. There are a number of general rules for the acquisition, the transfer and the loss of property rights, which together form a consistent structure of legal statutory provisions, and that together produce the field of property law. This has lead to a limited number of different property rights and no possibility for citizens to create newly invented property rights in rem of their own ('closed system'). This legal system is written down in statutes. Characteristic for civil law in continental countries is that it's shaped around a central Civil Code that forms the heart of all civil law.

Very important in this system is the knowledge that one property right stands above all others, as being the main property right from which all other property rights in rem descend. This, of course, is the right of ownership. In continental law countries this is the most comprehensive right with respect to an object. The owner can exercise all powers concerning the use and enjoyment of the object, including the right to earn all of its fruits (benefits). He can also transfer the object to another person. He is even allowed to destroy it, provided he doesn't harm other people or their property in the process. All property rights in rem are split off of this principal right. The property rights that have been split off, are called 'limited real rights' and form, together with the stripped right of ownership, all rights and powers within a full right of ownership. So when a split off limited real right ends, the stripped ownership automatically grows back to full ownership. The same happens when the owner of the stripped ownership becomes the proprietor of a limited real right that previously had been split off of his principle right. Then this limited real right ends automatically and the stripped ownership immediately transfers back to full ownership. So the involved person doesn’t possess two different property rights, a stripped right of ownership and a split off limited real right, but again one full right of ownership.

Dutch property law regulates the legal relationship of a person to various kinds of objects with regard to the whole world (rights in rem). Dutch law only knows eight different kinds of real property rights. They are always linked to a specific object in the sense that they give its proprietor one or more real rights and powers with regard to that object. These rights can be upheld and enforced against everyone who encounters or could encounter the object to which the real property right is attached. When someone actually runs into this object, he must avoid actions which could disturb the proprietor in exercising his real rights and powers. If not, the proprietor has the possibility to ask the court to order the offender to stop his disturbing behaviour and to pay damages.

When looking at a debt-claim as a property right, one notices that the creditor, to whom that claim belongs, has in fact the same possibilities as the owner of a tangible object. As proprietor of the debt-claim, he can uphold his right against all persons who have to respect it, though in case of a debt-claim this is only the debtor who has to carry out the indebted performance. Other persons are not bound by the debt-claim. They don't have to fulfil any performance to or on behalf of the creditor. Also in other ways a debt-claim resembles a right of ownership. Just as an owner, a creditor is the only one who is entitled to his debt-claim and to the rights and powers vested in it. And like an owner, he can split off one or more rights and powers of his debt-claim and grant them to a third party. Although a debt-claim is a property right, it has to be dealt with differently than a right of ownership or a limited real property right, because it hasn't got real effect. One must always keep in mind that, contrary to real property rights, within the legal bond between the creditor and debtor there is only one person - the debtor - who has to observe the debt-claim. Even though the creditor may split off one or more of the rights and powers within his debt-claim and grant them to another person, this other person can never obtain more rights than the creditor himself had, so he will never acquire a property right with real effect. A limited property right that has been split off of a debt-claim, just contains rights and powers that are enforceable against this one specific debtor. Nevertheless it might have some real effect within the legal sphere of the creditor to whom the debt-claim itselfs belongs as a property right, in the sense that the split off limited property rights can be upheld against the liquidator in the bankruptcy of this creditor and against his other creditors.

The object of a property right, so the object to which the property right of the proprietor is attached, can be a movable or an immovable thing. A right of ownership is always attached to a movable or an immovable thing. Therefore also the limited real property rights that have been spit off of a right of ownership will be attached to the underlying movable of immovable thing. In this way a limited real property right may be split off of a right of ownership attached to an immovable thing (usufruct, long leasehold, easement, right of superficies, apartment right or mortgage) or attached to a movable thing (usufruct, pledge). The object of a property right may as well be another limited real property right, for instance when a mortgage is taken on a usufruct that has been split off of a right of ownership attached to an immovable thing. The object of a debt-claim is not a thing, nor another right derived from such a thing, but the performance that has to be carried out by the debtor. So the debt-claim (property right) of the creditor (proprietor) is attached the performance that is to be fulfilled by this specific debtor. The property rights which may be split off of the debt-claim (usufruct, pledge) are, again, as well attached to that same performance of this particular debtor. So the limited proprietor who has acquired a limited property right that has been split off of the debt-claim of the creditor, will have obtained a number of rights and powers over the indebted performance that the creditor could have vindicated against this debtor, but that now may be collected by the limited proprietor of the debt-claim, whereas the creditor remains entitled to all other rights and powers embedded in his debt-claim.

In fact a ninth right in rem does exist. This is the ‘qualitative obligation’. That is a debt-claim, arisen from an agreement, with the content of an easement, yet with this characteristic that the servient land and dominant land do not have to be neighbouring lands. But since it is derived from an obligation it forms a part of the law of obligations and contracts.

Characteristic for Anglo-American law is that it has come to existence through various judgments with precedent effect. A central civil code is absent, as a consequence of which the law has developed itself less uniform and less systematic than in continental law systems. It's more focused on actual situations. Also the feudal context of real property law plays a vital part in the development of property law in Anglo-American law systems. In principle the property of the whole country, therefore all the land, belongs to the King. This means that people who have a right of use of a piece of land, can’t have the full property of it as it is known in continental law. They are tenants with a right of use, each with different powers to use and enjoy the land. These tenants have, in the course of history, continuously tried to ensure that the possession of their land, when they died, would not revert to the landlord or King, but would stay in the hands of their heirs. As a result, a special type of lawyer, called conveyer, appeared, whose job it was to make all kinds of settlements on behalf of the tenants, which enabled them to transfer the (use of the) land throughout their lives to family members and third parties, without losing the actual possession of the land during their lives themselves. The English courts have each time tried to abolish these settlements. This again has lead to the conception of new settlements. In this way a large variety of different powers and rights of use and enjoyment with regard to immovable property has been created in Anglo-American law. Consequently, property law in Anglo-American law countries isn't set up around a closed system with a limited number of property rights in rem, but it shows many types of rights in rem to all kinds of estates. There are even within the property law itself two separate systems, which have developed independently from each other. Firstly, the law of real property, containing all rights in immovable property originating from feudal law. Secondly, the law of personal property, existing of all real property rights in movable objects and in all other kind of property rights in rem, including shares, financial claims et cetera. So two different property systems exist next to each other. Within both systems a great number of different (real) property rights can be identified, with a much greater diversity than in the closed systems of continental law countries. In addition there are more possibilities for citizens to create their own kind of property rights in rem. That’s why, for an Anglo-American lawyer, the property law of continental law countries must appear uncomplicated and conveniently arranged.

The law of obligation in continental law and Anglo-American law systems

The law of obligations in continental law countries is characterised as well by its uniform structure and systematisation. An 'obligation' is always the central term, with a general meaning, irrespective if it originates from contract, tort, unjustified enrichment, undue performance or another similar source. Uniformity and systematisation are again the foundation of civil law. Whereas the result is always the same, in the sense that always an obligation has come to existence, the way to reach this result differs, depending on the kind of act under which the obligation was formed.

In continental law countries the juridical acts which create one or more obligations are subject to their own rules of law. But in the Dutch Civil Code also the law concerning the diverse juridical acts creating obligations is systemised. The provisions of Book 3 of the Dutch Civil Code with regard to juridical acts apply in general to all juridical acts (contracts and other multilateral and unilateral acts of law), unless a more specific rule of law stipulates differently.

In contrast to continental law systems, there’s no standard type of ‘obligation’ in Anglo-American law with a general meaning, thus there’s no standard relationship between a creditor and his debtor that applies to all kinds of obligations, irrespective of the source which has produced the obligation. In fact there are three different kinds of laws with regard to obligations: the law of contract, the law of tort and the law of restitution. Each of these fields of law has developed itself more or less independently to a self-regulating legal system with its own kind of obligation. Certainly some terms and subjects are known in all three fields of law, but overall, within each field, there has been a largely disconnected development. The result is that each field of law has its own specific rules. That is why there are important differences in Anglo-American law with respect to the legal character of obligations and claims arising from tort and those arising from a contract. The claim coming from an obligation which has arisen from tort is, for example, not transferrable, whereas a claim coming from an obligation derived from a contract usually is.

How to approach Dutch civil (private) law?

For a lawyer from a continental law country property law in Anglo-American law systems is hard to comprehend, since there’s no written down system that can be used as a guideline when approaching a specific rule or case. It takes years of study before a continental lawyer is able to find his way in Anglo-American property law, with its great variety of rights and obligations. One would think that for Anglo-American lawyers it must be easier to understand a continental law system, because they can cling themselves to a well defined legal structure. Surrounded by the safety of this structure they are able, in every single case, to determine which rule applies. This, however, is only partly true. An Anglo-American lawyer isn’t trained to approach the law systematically, at least not in the sense of continental law. For him the main rules of civil law are hard to recognize and it's not easy to understand that these rules are deliberately issued to apply in general, so with regard to a great variety of potential situations. Although a more specific rule of law precedes on a more general rule, a lawyer in a continental law country must always try to put a situation, if possible, under the power of the legal rule with the most general meaning and influence. He cannot, as he would do in Anglo-American law, look at the situation as a matter of its own, where an explicit judgment in a similar case has to be linked to.

So an Anglo-American lawyer who is studying Dutch civil law must always be aware that the legal rules have their own place in the system of the law and that they can’t be handled separately, as an independent rule for this specific situation, without taking into account other possible and even more general rules of law. Especially in Dutch civil law this systematisation is vital. The Dutch Civil Code (Burgerlijk Wetboek) is set up by means of a so-called ‘laminated structure’. This structure could simply be described as follows: a situation is covered by the most far-reaching rule of law, until a more specific rule applies to it. The rules with the most far-reaching spectrum are placed in Book 3 and at the beginning of Book 6 of the Dutch Civil Code (BW). The rules become more and more specific towards the end of Book 6 and in Book 7 BW. Also within each Book the rules with the most far-reaching spectrum are placed at the beginning, and as one works towards the end of the Book, the rules become gradually more and more specific. Of course a specific rule applies to less situations than a more general rule. Only when the situation is covered by the content of a specific rule, the more general rule must yield. As long as a situation isn’t regulated by a specific rule, the most general rule keeps its effect, provided the subject is covered by it. When studying Dutch civil law, it’s essential to keep this system in mind. Yet, it has to be pointed out immediately that Dutch courts themselves often do no apply the law systematically at all. Repeatedly they feel free to get around relevant statutory provisions or to interpret and apply them in their own way, depending on the specific circumstances. This leads to legal uncertainty and unpredictable judgments. Nevertheless, civil law should be applied by them within the legal system set for this purpose and, in the end, at least the Supreme Court still does so.

Dutch civil law in practice

This internet site basically explains the principles of Dutch civil (private) law. Where it refers to national law, the provisions of the Dutch Civil Code always form the starting point. Most subjects of private law are regulated in this Code. Of course there is other more detailed legislation on the field of civil law, but it is always based on the principles and statutory provisions of the Dutch Civil Code. Therefore, knowledge of the Dutch Civil Code and its legal structure is essential. For this reason an English translation of the Dutch Civil Code and a comment on the legal system of Dutch civil law are to be found on this website. But simply mentioning the text of its statutory provisions and the way how these rules should be applied, is not enough to get a proper insight. One has to be aware how Dutch courts apply these provisions in practice. And that's where the shoe pinches. The judges in the Netherlands have arrogated themselves an almost free discretion to apply the statutory provisions as they please. As a result, even though the legal effects seem absolutely clear in view of the text of a statutory provision and its place within the framework of civil law, the outcome of a lawsuit is always uncertain. When studying Dutch civil law this has to be kept in mind at all times. It’s not so sure as one might think. However, where it concerns the application of rules of private international law, Dutch courts are fortunately still fairly strict, due to the influence of European Regulations and International Conventions, where the European Court of Justice and the courts of other Contracting States keep the Dutch judges strapped. This makes this field of law much more structured and predictable, also in the Netherlands.

Dutch Civil Code (DCC)

The private law of the Netherlands is founded on Roman law, as codified in the Corpus Iuris Civilis of Justinian, and also on the Code Napoléon, the French Civil Code, that applied during the French predominance of the Netherlands from 1795 up to 1813. When the Netherlands, after annexation (1 January 1811), became a part of the French Empire, the Code Napoléon, enacted in 1804, was automatically introduced in the Netherlands as its own Civil Code.

After the French left, the Code Napoléon kept its influence. The first Dutch Civil Code (‘Burgerlijk Wetboek’), formed in 1838, was based on French civil law, but also on Roman-Dutch law, that ruled before the French occupation. So this Civil Code was not merely a translation of the Code Napoléon, as sometimes is understood. Some French rules were removed. Former Roman-Dutch law was inserted instead of the French rules or added to the Dutch Civil Code. Property provisions were arranged around the principle of a direct 'right' in property and the required publication of property titles. This lead to significant differences between the French and Dutch Civil Code. Unlike the French Civil Code, the first Dutch Civil Code, for instance, drew a strict line between real property rights (rights in rem) and property rights that could only be enforced against one specific person (rights in personam). While in the French Civil Code the registration of a transfer deed in a public register was just one of the possibilities for the passage of ownership, the first Dutch Civil Code stated, in line with the Roman-Dutch legal tradition that ruled prior to the French occupation, that such a registration was a precondition for the transfer of ownership. But, despite these differences, the influence of the French and Roman law always remained.

Over the next century the Dutch Civil Code of 1838 has been modified and amended frequently. To make it more up to date and in line with later developments in law a modernisation was proclaimed in 1947. In 1992 a new Dutch Civil Code was introduced, which was largely influenced by the German Civil Code (Bürgerliches Gesetzbuch or BGB). The distinction between civil law and commercial law has been abandoned in this new Dutch Civil Code in favour of a broader range of private law. Legal subjects which had come about after the middle ages and were regulated in a separate statute book – the Commercial Code (‘Wetboek van Koophandel; ), such as corporate law, financial law, insurance law, transport law -, are now incorporated in the new Dutch Civil Code itself. The same applies to other contemporary areas of civil law, such as consumer law and labour law.

The current Dutch Civil Code (‘Burgerlijk Wetboek’) is a fairly modern Act of Parliament, in force as of 1992. It contains more than 3500 Articles, divided over the following eight Books:

Book 1: The Law of Natural Persons and Family Law
Book 2: The Law of Legal Persons
Book 3: Property Law in General
Book 4: Law of Succession
Book 5: Real Property Rights
Book 6: The law of Obligations and Contracts
Book 7: Particular Agreements
Book 8: The Law of Carriage and Means of Transportation

Initially the plan was to make new codifications as well with regard to the law of intellectual property and international private law (in Book 9 and Book 10 DCC, respectively). Although not yet official, this plan is abandoned, because these subjects are primarily governed by international conventions and European Regulations.

A main feature of the present Dutch Civil Code is its so-called laminated structure between its eight Books. The rules of a more earlier placed Book, for instance Book 3, always apply as well to subjects which are regulated in a later placed Book, for instance in Book 6, but only as far as that latter Book doesn’t provide a more detailed rule for the subject in question. If a later placed Book entails its own rule for a subject, then solely this rule applies to it. It sets, as far as it concerns this specific subject, the more general rule of an earlier placed Book aside.

Book 7 DCC, for example, contains special rules for sale contracts. A sale contract is a juridical act of a certain type. It's also a mutual agreement, but with a specific nature and content. Because an agreement, like a sale contract, is a juridical act, the rules of Book 3 DCC, which regulate juridical acts in general, apply to a sale contract. Since this contract is also a certain type of agreement, the rules of Book 6 DCC apply as well to it. Book 6 DCC contains rules which are more related in particular to juridical acts which have the characteristics of an agreement. If there’s a conflict between the more general rules for juridical acts of Book 3 DCC and the more particular rules for agreements of Book 6 DCC, then these last rules precede. In Book 7 DCC some agreements, which are frequently used in practice, are regulated separately, among which the contract of sale. The rules of Book 7 DCC have for this reason also meaning for this type of contract and put, as a more particular statutory provision, the more general rules of Book 3 and Book 6 DCC aside, but only when they regulate the same topic more detailed. Therefore, at first, always the most general rule must be looked for (rules of Book 3 DCC). Then, it must be examined if a more particular rule is incorporated in one of the later placed Books of the Dutch Civil Code that could apply as well. In case of a contract these rules are to be found in Book 6 DCC. If it’s appropriate, this more particular rule affects the situation, whereas the remaining part of that agreement is still governed by the more general provisions of Book 3 DCC. The same method has to be followed with regard to other even more detailed provisions, like those laid down in Book 7 DCC. If such a provision covers the subject as well, it will be decisive for that particular part of the involved agreement. This way of thinking is implanted in the composition of the Dutch Civil Code and is called a ‘laminated structure’.

Note that every separate Book of the Dutch Civil Code – in sum eight - starts with its own Article 1. So the first provision of Book 1 DCC (Law of Persons and Family Law) is Article 1 and the first provision of Book 2 DCC (Law of Legal Persons) is also numbered as Article 1 etc. To indicate the Book in which the Article is placed, the number of this Book is positioned directly in front of the number of the Article. Both numbers are separated by a colon and followed by the abbreviation of the Dutch Civil Code (BW or, in English, DCC). So Article 1 of Book 1 is written as Article 1:1 DCC and Article 1 of Book 6 is called Article 6:1 DCC and so on. By looking at the first number of the indication of an Article the relevant Book will be known.


Standards of reasonableness and fairness in Dutch civil law

Although today also other opinions can be heard at university, Dutch law students were thought for decades that it was wrong to stick to the textual meaning of a statutory provision, since it was much more important that the law at all times should produce a fair and reasonable outcome. The new Dutch Civil Code is largely a reflection of this idea. The concept of ‘good faith’ leaks, as a result, into all branches of Dutch civil law, and especially into the law of obligations and contracts. The first Article of Book 6 BW (Law of Obligations and Contracts) already states that all parties to an obligation must behave within their relationship to each other according to what is reasonable and fair (Article 6:1 DCC). The first Article of Section 6.5.4 DCC (Legal Effects of Contracts) again specifies that the relationship between parties to an agreement is governed as well by the principles of reasonableness and fairness (Article 6:248 DCC).

With the words 'reasonableness and fairness’ (‘redelijkheid en billijkheid’) Dutch law refers to the principle of bona fides or good faith, in so far it concerns the duty to observe reasonable social and commercial standards of normal and fair dealing (the term good faith can also indicate what a person reasonably, in the given circumstances, ought to have known about a certain fact; this is called ‘goede trouw’, which literarily can be translated as ‘good faith’).

The principle of reasonableness and fairness has three functions.

In the first place, all contracts must be interpreted according to the principle of reasonableness and fairness in order to determine the meaning of a certain clause or contractual provision. Not its literally meaning, according to the text of the contract, is decisive, but the intention which parties, given all circumstances, reasonably must have had when they came to an agreement.

Secondly, Article 6:248 (1) DCC specifies that contracts not only have the legal effects expressly agreed upon by parties, but also those which, according to the nature of the contract, result from legislation, common practice (usage) or the standards of reasonableness and fairness. In a contract, of course, not all possible problems and questions can be written down. As far as a contract doesn't provide an answer to a specific question, the gap must be filled with a solution given by a rule of permissive law. These additional rules of law only apply insofar parties themselves haven't made an arrangement for a specific subject in their agreement themselves. Needless to say that a contractual provision cannot derogate from a mandatory rule of law. If a contractual provision clashes with such a rule, then it has no meaning at all. The relationship between the parties to the contract will then be governed by the content of the mandatory rule of law. When neither a contractual provision nor a statutory provision (of permissive or mandatory law) gives an answer to a legal question, one should find a solution in accordance with common practice (‘usage’) or with what would be reasonable and fair in the circumstances. The effect of ‘reasonableness and fairness’ in that case is supplementary.

But in the third place the standards of reasonableness and fairness have a ‘derogating’ or ‘restrictive’ effect too. Article 6:248 (2) DCC stipulates that an in itself binding contractual or statutory provision nevertheless doesn’t apply to the extent that this would, given the circumstances, be unacceptable according to standards of reasonableness and fairness. This means that a normally perfect working contractual provision or an additional statutory provision of permissive law can (and must) be set aside when its applicability unexpectedly would lead to unacceptable consequences for one of the parties. It should be noted that even rules of mandatory law may, in a specific situation, produce such an unreasonable outcome that, according to the principle of reasonableness and fairness, it has to be replaced by another solution. Of course, this will happen less frequently than in relation to contractual provisions and permissive law, since mandatory law is an expression of the explicit intention of the legislator to create a sure legal outcome on behalf of a specific group of persons (employee, tenant, consumer), and this in theory always, irrespective of the circumstances. In other words: this legal effect is in advance regarded as the best solution for this specific situation. Therefore, it is put forward by law as the absolute binding outcome, usually to protect one of the involved weaker parties or the society as a whole. Yet, the standards of reasonableness and fairness may order differently and demand that the outcome of this mandatory rule has to be disregarded and replaced.

Criticism on the current Dutch Civil Code

As Sir Francis Bacon already said:

'Certainty is so essential to a law that a law without it cannot be just. A law ought to give warning before it strikes, and it is a true maxim that the best laws leave least to the breast of the judge' (Letters and life of Bacon, Spedding, 1869).

This basic principle still applies today.

‘Legal rules guide people's actions and judges' decisions. Legal norms prescribe particular outcomes when generally described states of fact are present. While legal rules cannot always be precise and definite, and while they cannot always exclude judgment and discretion in their application and enforcement, they can always state who may invoke them, who may apply them, and what the consequences of application may be’ (Maxeiner James R., Houston Journal of International Law • Fall, 2008).

An essential disadvantage of the present Dutch Civil Code is, however, that it seems to give too much discretion to the courts. This undermines certainty and uniformity, both a key aim of codification. Yet, this result was an aware choice of the legislature. The court should always determine whether the legal outcome, as prescribed by contract or law, is reasonable and fair in a specific case, given all circumstances. The law should be flexible as well, so that it is able to solve any legal problem. The earlier mentioned statutory provisions, Article 6:2 and 6:248 DCC, merely are an expression of this concept. But statutory provisions like Article 6:2 or 6:248 DCC, that directly refer to the standards of reasonableness and fairness, aren’t the real problem. Everyone agrees that where the outcome of a contract or a statutory provision would have unexpected and unacceptable consequences for one of the involved parties, the court must, in exceptional situations, have the opportunity to replace it with a more fair result. The real problem is that many statutory provisions of the Civil Code, that intend to solve a matter in detail, themselves are so open and vague that the judge simply has to return to is own intuition in order to make a judgement. Even though the Civil Code contains 3500 detailed statutory provisions, these rules often provide no solution at all, because they refer directly to ‘the wellbeing of the child’, ‘the assumption of a party’, ‘what a party ought to have known in the circumstances’, ‘what the opposite party objectively might have thought’, ‘the general principles of society’ and so on. This means that, in the end, the ruling judge has to decide on the basis of his own gut feeling. This is especially troublesome where a statutory provision forces the judge to make several halfway decisions on the basis of discretion (or reasonableness and fairness) in order to be able to make it work. Of course, this ensures that the law is flexible, so that it can be applied in virtually all situations. But in fact it leads to judgments of which no one can make head or tail, so in truth there appears to be no law at all.

An example of this problem is offered by Article 6:228 DCC, that provides rules to determine whether an agreement is voidable because of a fundamental mistake of one of the parties at the moment that he entered into the agreement. Taken into account the relevant circumstances the judge first has to establish if there has been a mistake with regard to applicable facts or rights and, if this appears to be the case, if the agreement has come about under the influence of this mistake and, if so, if the mistaken party would have entered into this agreement under the same conditions if he would have had a correct view of the situation. It’s not so hard to conclude if the involved party was mistaken. But it is a lot harder to determine if the agreement was concluded under the influence of this mistake. And it gets even more difficult to find out if the mistaken party would have entered into this agreement if he had known better. Who will say? Of course the mistaken party will implicate fiercely that he wouldn’t have accepted this agreement if he hadn’t been mistaken, while the opposite party will always claim the contrary. So the judge has to decide largely on the basis of his own feelings of the situation if there has been a mistake that might lead to a voidable agreement.

But it gets even more complicated. The claim of the mistaken party that the agreement is voidable because he acted under the influence of a fundamental mistake may only be awarded:

  1. if the mistake is caused by information of the opposite party, unless this party could assume that the agreement would also be entered into without this information, or;
  2. if the opposite party, in view of what he knew or ought to have known about this mistake, should have informed the mistaken party about his error, or;
  3. if the opposite party, at the moment that the agreement was concluded, had the same incorrect presumption as the mistaken party, unless he could assume that the mistaken party, if this party had known the mistake, still would have entered into the agreement.

Because these rules are so fuzzy, case law has developed other criteria to determine whether one of these conditions is fulfilled. Both parties are regarded to have specific duties towards each other under the standards of reasonableness and fairness. The opposite party has a duty to inform the other party of certain important facts or rights if he knows or ought to have known that these are important for the other party to make up his mind. But on the other hand the mistaken party has a duty as well, namely to investigate if the facts and rights, which are so important to him, are actually present. In practice, however, this rule of interpretation still means that the judge has to decide on the basis of good judgment and gut feeling. There is no way to tell in advance what the outcome of his thoughts and feelings will be. And finally, when the judge has come to the concluding observation that the appeal to a fundamental mistake is, given all circumstances, reasonable, he still has to ask himself if the mistake, in view of the nature of the agreement, common opinion or the actual circumstances, should not be for account of the mistaken party anyway (Art. 6:228 (2) DCC). So again, he has to return to his own feelings about the case and facts as a whole. This is too much. It’s impossible for laymen and lawyers to assess whether a legal claim might be awarded on this legal grounds, also because it is clear that one judge will appreciate the relevant circumstances totally different than the other.

From the parliamentary history of the Dutch Civil Code it becomes clear that it was the intention that the court only should move away from contract or relevant statutory provisions by means of a last resort, thus only when its result was indeed unacceptable. The assumption was that de court, in each case, first would determine which legal rules apply in conformity with the legal system as codified in the Dutch Civil Code. After that, the court should base its judgment on these rules. Only when the outcome was more than proportionally disadvantageous for one of the parties, the court could examine if the standards of reasonableness and fairness perhaps would prescribe another result. But the legislator had forgotten that even before the court reaches this point, it has to make a lot of decisions at random. Because many statutory provisions of the Civil Code are to open and vague, the courts have clang to the idea that the outcome of each specific case must, above all, be fair and just. This has led more then occasionally to a reversed working method of courts. Although not in line with legal methods, the judge simply looks at the presented facts as a whole and, overlooking the entire picture, decides for himself which outcome he considers to be the most fair in this case, without considering any legal rules. After that, he works explicitly towards that outcome, ignoring all contractual and legal rules standing in his way. When that’s not possible, for instance when a specific statutory rule clearly points out another result, he uses certain tricks to avoid the unwanted effect. Within this framework it doesn’t help that a Dutch court is also free in appreciating the introduced proof, in the sense that procedural rules regarding evidence are often applied freely. In this way the court is able to acknowledge or deny a proof as legal evidence almost as it pleases. This offers the court the opportunity to surpass a very clear contractual condition or statutory provision without openly offending the law. It just simply states that the concerning party has not proved the facts which are necessary to be able to apply the rule to which he appeals or that the other party has proven his statement, which is contradictory to the applying statutory provision or contract. This effect can be reached also by a decision that the other party has proven his position because the counterparty, at least in the opinion of the ruling judge, did not dispute the statements of the other party enough or not convincingly. In this way complete works of counter-evidence are dropped in the waste-paper basket, and thus ignored, because they undermine the wanted result, and this without, at least in theory, violating any material rule of law. And of course, the outcome which the court wanted from the start, then always pops out at the end. In some cases the urge to get the wanted result is so severe that the court even gives a judgment that isn’t based on any statement of the parties at. The judge creates, between the lines, his own facts and legal statements to help one of the parties to reach his goal, although he knows that he is not allowed to do so. There are a lot of judgments from which shows that the law is merely used as an alibi to justify the wanted result.

Although the Dutch Supreme Court (‘Hoge Raad’) repeatedly has proclaimed that this working method is not in line with the law, the lower courts keep making the same mistake over and over again, deliberately, because they think (or feel) it’s their responsibility to give a reasonable and fair judgement of their own. And, it’s true, sometimes, they have no other option. The statutory provisions themselves force them to make a decision of which the outcome largely depends on the moral and legal appreciation of the facts presented to them.

Why is this so terribly wrong? Because it breaks down the entire legal system of civil law, particularly the legal method of how to approach and solve a legal problem on which lawyers and also the people may depend. What remains is an overall uncertainty concerning the outcome of a dispute, since this is totally depending on the sense of justice of the judge who coincidentally is in session. In fact, this would mean that there’s not just one civil law, applying to everyone, but there are as many civil law systems as there are judges. And it’s impossible to know all these individual systems, also because there is no way to study and comment them structurally. The main problem is, of course, that a judge isn’t capable of determining all relevant facts, which is necessary if he wants to base a judgment solely on what he regards as reasonable and fair. A lot of facts, which should be known in order to conclude if something is just and fair in the normal sense of the word, aren’t mentioned or felt in court, while others are overexposed and therefore look more important then they actually were. It’s impossible to recreate the real world in a court room. So judges shouldn’t try to do so. Or to put it more properly: they should not be forced to do so, since the result of this working method is always a fairy tale. A judge may think that he can oversee the whole picture, or at least that he’s aware of the most relevant facts, so that he is in a position to decide what is right and fair, but that’s a dangerous illusion. And even when this would be possible, all judges have their own personal experiences and qualities, so they will interpret the same facts differently. While one judge thinks a certain solution is fair and just in the circumstances, the other one feels quiet the opposite. So a decision based purely on what the ruling judge himself finds reasonable and fair, isn’t more reasonable and fair then a decision made by flipping a coin.

Despite the efforts of the Dutch Supreme Court to reverse the earlier mentioned development at lower courts, starting a civil procedure in the Netherlands nowadays can indeed be a Russian roulette. This has created a serious problem in Dutch law, although still not everybody agrees. Some Dutch scholars still believe that judges are skilled to interpret all relevant facts in such a way that indeed always a fair and just outcome can be reached within the open framework of the Dutch Civil Code. But it’s clear that they haven’t seen a courtroom in a long time and that they lay more emphasis on how it theoretically should be than on the practical impact of their conceptions, which is a total loss of legal certainty and a flood of random judgments. Fortunately, the Dutch Supreme Court tries to stop this flood as much as possible. But its decrees can’t change the juridical facts which deliberately were established by a lower court to get the result it aimed for. And, of course, an individual case is only presented to the Dutch Supreme Court after many years of litigation. Not all citizens can produce this much patience nor the necessary financial means that go with it.

Is this legal uncertainty and fragmentation of Dutch civil law, which has expressed itself in simply random judgments, the fault of the Dutch Civil Code? Partially it is. As said before, many provisions of the Civil Code are to open and vague to apply them properly as a rule of law. They force the judge to make a decision purely based on his gut feeling. But partially it is also the fault of the judges themselves. It seems as if they have released themselves from any legal chains imposed upon them by the Civil Code and the decrees of the Supreme Court. Everything is possible as long as the outcome is just and fair, at least in their own opinion. The following quotation, taken from the official Internet site of the central institution of the Dutch courts ‘’ as it was presented still on 30-03-2009), immediately makes clear how Dutch judges feel about civil law.

“Large field of law
Civil law covers a very large field. In theory, it is fairly clear where this law can be found, but because of its enormous scope, it is often difficult for a lawyer to determine whether he has studied all the relevant provisions, judgments and commentaries to be able to plead a case well. The same applies to the courts when it comes to handing down the right judgment. Even if it is more or less certain it has searched out all the relevant texts, it is usually still impossible to infer a solution from them immediately to the concrete case on which the court has to decide. Even the present scope of civil law does not cover all the problems that can occur in society. In this case, the civil court - perhaps at the instigation of the lawyers representing the parties involved - will have to think of a solution itself on the basis of everything it has heard and what it has read about the matter. So, a citizen who initiates legal proceedings will often not know in advance what the decision of the court will be.” (Centrale redactie, published on 08-02-2004)

Although the effects of the earlier described attitude of the courts are pointed out well in the last sentence of this quote, the real reason for this approach is not mentioned at all. The statement of the courts that civil law contains to many provisions to be able to apply it, is in itself of course outrageous. Why did we even bother to make a new Civil Code for over forty years if this would be true? That it is hard to find all relevant statutory provisions isn’t correct either. In fact this is quiet simple, since the structure of the Civil Code is easily arranged, while case law is well documented and also extensively commented. Indeed it is a problem that a lot of these statutory provisions do not bring a solution and, deliberately, leave it up to the ruling judge to decide on the basis of his own personal instincts. But this cannot conceal that judges themselves find it very convenient to have an almost unlimited discretion.

Why so many judges refuse to apply the law correctly, is hard to say. Probably the job rotation system, as applied by the courts, plays a part in it. The aim of this system is to have judges with sound visions of sentiments in society. So the emphasis is laid on general knowledge, rather than specialized legal expertise. In this job rotation system judges are transferred after four years (for specialized judges after six years) to a totally different field of law. A lot of legal expertise is lost this way. Whereas a judge usually has to face up with solicitors who have spend their whole carrier studying just this specific issue of civil law, he misses sufficient legal knowledge for the case he has to consider, so that it becomes very tempting for him to escape to other instruments to stay in control, like an unsystematic assessment of the relevant facts and a ‘well developed’ gut feeling, justified by the thought that a fair and just outcome is the highest principle anyhow. But that’s no way to approach and apply the law. In the end it will demoralize not only lawyers, but, more important, also their clients and, with that, all citizens who’ll no longer have faith in this legal system.

It is difficult to say how this problem should be tackled. Rewriting the Civil Code to make it less open and vague would be an option for the long term. Many new legislation has to be incorporated in the Dutch Civil Code on the basis of European Regulations and European Conventions. These newly incorporated parts of the Dutch Civil Code are less open and vague and provide more detailed guidelines. So in the end, under influence of European legislation, the Dutch Civil Code will transform itself in the right direction. Meanwhile the decrees of the Dutch Supreme Court should fill up the existing gaps sufficiently. But probably a solution can be found elsewhere too.

A first step to stop this flood of random judgments could be the institution of specialized sections at the District Courts. Now only a distinction is made between family law on the one hand and virtually all other civil matters on the other, with special powers for the Subdistrict Courts where it concerns matters related to employment and lease agreements. But this is to widespread. A lot of other legal subjects require special legal skills and specific legal expertise. The objective to have judges in court with a broad general knowledge, so that they keep in touch with society, is no longer defendable in a world that changes almost every day and that becomes more complex and internationally connected each minute, especially in law. These developments bring along the need for the best legal knowledge of, for instance, financial markets, stocks and securities, insurances, legal persons and commercial partnerships, inheritances, commercial agreements, franchising, intellectual property, takeovers, sales of businesses and certain assets, consumer contracts, traffic accidents, environmental issues, European legislation, international jurisdiction, international trade agreements and so on. National and international governments continuously enact new legislation for various kinds of matters. Almost every detail is captured in Acts and by-laws. They nevertheless expect of the public to comply with it. And the public tries to do so, although they are only able to apply and interpret these rules with the help of specialized and expensive lawyers. But then the public may expect as well that the court observes the same rules in the way as intended by the legislator. The thought that a judge with no or hardly any experience on these matters may give a respectable and well founded judgment on it anyway, can no longer be upheld. If the Netherlands take the law seriously, it is not enough to rely on the gut feeling of just any judge in session, since in the end this will lead to what the courts always have wanted to prevent: a drifting apart from public. Where solicitors have specialized themselves more and more in specific areas of civil law, the courts cannot stay behind, simply relying on their good judgment and instincts based on a general knowledge of the law.

The institution of specialized court sections (and preferably different rules of procedure for different kind of lawsuits) is, of course, not the exclusive answer. In addition, these sections must return to the starting point regarding the role of judges within a legal system and the way how to apply rules of law. Nothing more, nothing less. The question which rules apply, must, in conformity with the Code, be answered firstly by mandatory law, secondly by contract and thirdly, when the contract doesn’t respond, by permissive additional law. Obviously, when there’s still no answer, the judge may look at what customary practice has to say about it and also what is reasonable and fair in the circumstances. And no one will argue that, when the outcome of all these rules is clearly unexpected and extremely unfair for one of the parties, and therefore unwanted and unacceptable, the principle of reasonableness and fairness must create an escape, even when this is not consistent with the legal system as a whole. The Dutch Civil Code does so. It also provides numerous provisions which can be applied in accordance with their textual meaning. There’s no need to rule these provisions out, simply because a judge thinks that he has a better personal view on the matter.

As far as the more open and vague statutory provisions of the Dutch Civil Code are concerned, a different approach of the courts may already remove the most grievances. And again, this renewed approach is in line with how it was intended from the beginning. No Code or Statute can regulate every possible situation in a straight line. Therefore a certain discretion has to be granted to courts. Discretion also keeps the Civil Code flexible. But the fact that not every situation can be covered in detail by a statutory provision may never be an alibi to ignore the law or the legal principles on which it is founded, merely because this seems practical, given also that, at the background, always other and even more important interests are involved too. Therefore, judges should use their discretion properly and with care. Unfortunately they do not. The courts should return to a systematic approach of the law, also in applying open and vague statutory provisions. In interpreting such rules the courts must restrain themselves and, where appropriate, fall back on the guidelines provided for by the Dutch Supreme Court. Naturally, the circumstances in a specific case will not entirely be the same as the circumstances in the case for which the Supreme Court has issued these guidelines. But only serious differences should allow the courts to deviate from the predictable rules set by law (Civil Code and the Supreme Court), while at all times the principle thought behind this rule must be considered.

But how can the courts be moved to follow another guiding principle? First of all the courts themselves should become fully alive to the effects of their views and the importance of legal certainty in order to maintain a trustworthy legal system. Although the objective to give fair and right judgments at all times is honourable, the consequence of the present attitude in the long run is legal uncertainty and, with that, an unwanted and irreversible deterioration of civil law. Slowly but surely Dutch legal scholars, like Prof. dr. M.W. Hesselink, Prof. mr. R.P.J.L. Tjittes and Prof. mr. A.S. Hartkamp, call attention to this problem. Regrettably, upon till now the courts have turned a deaf ear to their appeals.

Provided that judges themselves recognize the importance of a more systematic approach of law, it should not be so difficult to turn back to the principles of the Civil Code. Following the thoughts of Hayek on this point, the law as a system should become more important for judges during the process of making judgments. A more modest approach is appropriate, since the legitimate expectations of the people are best preserved by making legal rules internally consistent within a given set of rules (F.A. Hayek, Law, legislation and liberty: rules and order (1973), 115-119). Judges should admit that they simply are not able to assess all facts and that a judgment, formed purely on the basis of their own instincts, doesn’t become fair and just simply because it was made with the best intentions.

To assure that Dutch courts in each specific case shall apply the law correctly, it will be necessary for them to substantiate their judgments more extensive and more clearly than they do currently, and also more in connection with the general excepted views of law as put down in the Civil Code and the case law of the Supreme Court. Usually each specific case can be unravelled in a few legal questions that have to be answered in order to reach a final judgement. The court should confirm for each of these questions that its answer is in accordance with the relevant provisions of the Civil Code and the guidelines of the Dutch Supreme Court. In other words: the judge should be compelled to formulate the general accepted legal views applying to each question, taking the appropriate provision of the Civil Code as a starting point and, if relevant, the applicable judgments and views of the Supreme Court. Subsequently, the judge should compare the facts of the case with these rules. This working method will guide him to a proper outcome and will enable lawyers and the public to obtain a clear insight into what they can expect from the court and whether starting proceedings is suitable or not. In the end, the people may even adjust their legal behaviour to this new legal approach and, as a result, this may lead to a reduced amount of court cases and less disturbances of business and private affairs. Of course, a judge, while answering a question, still might (have to) move away from a generally accepted legal rule, but at least he has to express why and how he came to this decision. Principally, a judge should always keep in mind that exceptional circumstances do not justify a deviation from general accepted legal views which make out the foundation of any legal system. Only exceptional outcomes do, and only when the result is so harsh for one of the involved parties that it cannot be accepted by standards of reasonableness and fairness, so that it’s understandable that statutory provisions must retrieve.

In this respect Dutch judges should take an example of their German colleagues, who still take the law seriously and (therefore) substantiate their judgements with utmost care. Especially since the Dutch Civil Code looks a lot like the German Civil Code and Europe is moving forward to a uniform European private law, it is not a bad idea to look abroad for advise.