Legal System of Civil Law in the Netherlands

Juridical facts and legal effects

The ‘law at ease’ and the ‘law in motion’

Civil law regulates the rights and duties of persons with regard to property and also with regard to their mutual relationships as far as it concerns valuable aspects. Firstly, it states which property rights it recognizes as such and what a creditor and debtor may expect from each other within their legal bond, the obligation. This affects the ‘law at ease’. At this stage one merely describes the various property rights of Dutch civil law and their content and explains what an obligation in general means for the creditor and his debtor. But, secondly, civil law also sets out how property rights come to existence, how persons may obtain such rights, how these rights may pass to other persons, how its proprietors may grant a partial right of use of their property to someone else and how property rights may come to an end. When describing the possibilities to make a change in existing property rights and in creating and ending obligations, which usually is achieved by performing juridical acts or by the occurrence of actual facts, one approaches the ‘law in motion’. The main question here is what is necessary to make the law react? The answer refers to facts that trigger the law to respond in a certain way. Such facts are called ‘juridical facts’. The law acknowledges various kinds of juridical facts, each with their own legal consequences. Such a respond to a specific juridical fact is called a ‘legal effect’. It is important to look at the different juridical facts of Dutch civil law and how the law reacts to them when it encounters such facts. Will it accept a wanted consequence? Will it impose an unwanted reaction? How can a person create juridical facts that bring about a sought response? And how can a person avoid that the law strikes back with an unwanted result? These are the questions to be answered by the law in motion.

Juridical facts

A juridical fact is a fact that is recognized by law as an event that has legal meaning and that will therefore set off a particular legal reaction. It is a fact that, according to the legislator, has sufficient importance to make the law respond to it in a certain way. This means that rules of law apply to it, for example a statutory provision in a Code or a rule made by case law.

Not every event is a juridical fact. Not every event makes the law react. Some events have no legal meaning at all, subsequently the law want respond to them. They are not drawn into the legal sphere. Facts that stay outside the legal system are for example the act of ‘spitting on the street’, ‘eating an apple', ‘watching TV’ and `holding a conversation’. The legislator did not find it necessary to issue rules of law for these events. That’s why the law doesn’t react to such events. They have no legal effect. It’s hard to say in general which facts do have legal effect and which facts do not. This depends entirely on the circumstances under which a fact presents itself. In principle, however, all facts may become juridical facts, conditional on the situation in which they arise. In the end the legislator or court has to ascertain, after evaluation of all kinds of political, social and legal interests, if a fact has sufficient legal importance to make the law respond. A fact will definitely be a juridical fact if it concerns public safety or economic interests, for example because it represents a certain value or it causes damage or an unjustified disadvantage to a person.

The act of spitting on the street is in itself not a fact for which Dutch civil law has created rules. This behaviour is indeed indecent, but nonetheless it doesn’t have sufficient importance to prohibit it by law. Such a ban is not appropriate within our culture, where the individual has a lot of freedom to do as he pleases. Yet, practical considerations may lead to the conclusion that the legislator or court has to interfere by pulling this act into the legal system. If, for instance, research shows that this behaviour contributes to the transmission of all kinds of contagious diseases, then it’s not imaginary that the legislator will issue a rule that makes the act of spitting in public places a criminal offence. In that case a fact to which in the past no legal effect was linked, has become a juridical fact, i.e. a fact that has legal consequences, because a rule of law applies to it. Recently the Dutch government has prohibited people to smoke in bars and restaurants. Smoking a cigarette has, due to this, become a juridical fact with its own legal effects.

Legal effects

Juridical facts are facts which trigger a reaction of the law. The response of written or unwritten law to a certain juridical fact is named a ‘legal effect’ (or ‘legal consequence’). Studying law means arranging the relevant juridical facts and finding the corresponding legal effects. A lawyer first has to discover whether a specific event may or has to be qualified as a juridical fact, given the circumstances in which it occurred. He will study the sources of law, such as the Civil Code and case law, to find his answer. Once he has established that this event indeed must be qualified as a juridical fact, he tries to find out how the law reacts to it. Which legal effect is by law connected to this juridical fact?

Jan and Dirk are neighbours. They quarrel about everything. Jan intends to kill Dirk. One night he awaits Dirk at his home and puts a knife into his throat, whereupon Dirk dies. The facts are clear. Jan has consciously killed Dirk. These facts affect the public safety and, for this reason, have been put into the legal system by the legislature. In Article 289 of the Dutch Penal Code one finds the rule that he who intentionally and with malice aforethought ends the life of another person (juridical fact), will be punished with a lifelong or temporary prison sentence of no more than thirty years (legal effect). The link between this juridical fact and the legal effect is regulated in the law as well. This juridical fact is called a ‘murder’.

When the actual events change, this may lead to a different juridical fact, so that in the end another legal effect rises to the surface.

Imagine that Jan did not visit Dirk with the intention to kill him, but to settle their disputes for ever. He gives Dirk a bottle of wine to make up for all the troubles in the past. But after a few minutes the conversation between Jan and Dirk degenerates into a scuffle. During the fight Jan grabs the bottle of wine which he had taken with him and stabs it deliberately in Dirk’s throat. Dirk dies instantly. The circumstances are a bit different from those of the previous example. When looking at Article 289 of the Dutch Penal Code, one has to notice that this event does not fall within its scope, so that it cannot be qualified as the juridical fact ‘murder’. Jan did not intentionally, not with malice aforethought, end Dirk’s life. So a lawyer must examine if the circumstances possibly meet the criteria of another juridical fact. This appears to be the case. This juridical fact is defined in another Article of the Dutch Penal Code, Article 287, which states that a person who deliberately kills another person, although he didn’t plan it in advance, is guilty of manslaughter (juridical fact) and is punished with a prison sentence of no more than fifteen years (legal effect). The juridical fact ‘manslaughter’, that can be deducted from the actual events, leads in other words to another legal effect, namely to a smaller prison sentence, than the juridical fact ‘murder’. In this way juridical facts and legal effects interact with each other.

If necessary, the court must determine first which juridical facts have occurred in the situation to be judged. To be able to do so, it orders parties to prove the facts they say have occurred. Only the juridical facts of which the existence has been proven sufficiently, may be taken into consideration. Other facts are not relevant for the court’s judgement. Not because they cannot be recognized as juridical facts, but because they are not applicable in this specific situation. They did not occur, at least not within the legal world.

In court Jan might invoke that Dirk, during the clash, fell in the bottle by accident. He is not responsible for Dirk’s death. At the most he’s guilty of reckless behaviour, an indictable offence to which the law reacts with a lower prison sentence. The public prosecutor denies Jan’s story. He claims that Jan has put the bottle in Dirk’s throat with malicious intent. The public prosecutor must, of course, prove his claim, for example by hearing witnesses who have watched the event. Only after his claim has been sufficiently proven, the court may qualify the incident as manslaughter (juridical fact of Article 287 of the Dutch Penal Code). Only then Jan can be convicted to serve the corresponding prison sentence (legal effect). What in reality happened, is of no importance anymore. Surely, the law tries to connect with the real world as much as possible. But where facts, that in reality might have occurred, can’t be proven, they have no meaning within the legal world.

Juridical facts and legal effects in Dutch Civil Law

In criminal law the juridical facts and their legal effects are nicely arranged. The Penal Code first mentions the juridical fact and immediately afterwards defines the associated impact (money fine or prison sentence). In civil law this is not so easy. Juridical fact and legal effect often are found in different parts of the Dutch Civil Code. Moreover, the juridical facts have their own legal meaning, so that knowledge of the law is required to determine if an event is considered as a juridical fact of a certain kind. In addition, the legal effects aren’t limited to a fine or prison sentence, but may include virtually everything. This makes civil law much harder to comprehend. Yet, a lawyer should approach this part of the law similarly. First he has to deduce the relevant juridical facts from the given circumstances. Then he has to retrieve the legal effects that, according to law, enter into force on the basis of these facts.

Klaas throws a ball up in the air in his garden. No interests of other persons are involved in this operation. That’s why the law has not created a rule for this event. Throwing a ball is in itself not a juridical fact. But as soon as personal or economic interests of third persons (other citizens, the government, legal persons) are drawn in, the law might have to react. If Klaas, by throwing the ball, breaks - deliberately or by accident – the window of his neighbour’s house, he harms his neighbour’s interests. By damaging the window, Klaas has disturbed his neighbour in exercising his rights over his house. As the owner of the window his neighbour may insist that everyone, including Klaas, respects his property. If not, he may ask the court to take proper measures to enforce the rights that are enfolded in his right of ownership and that have been harmed now. When the act of throwing a ball causes damage to the property of another person, civil law has to respond to it. This means that this event will be regarded as a juridical fact, which establishes a certain legal effect. Of course the Civil Code doesn’t entail a provision implicating that it is forbidden to throw a ball in the air or trough the window of someone else’s property. Not every conceivable juridical fact can be described literally in a Code. The Civil Code describes more generally that he, who violates someone else’s property, commits an unlawful act (Article 6:162 paragraph 2 and 3 DCC). The act of throwing a ball trough the window of someone else’s house is therefore a juridical fact if it causes damage to someone else’s property. It falls within the scope of the juridical fact that is recognized as a ‘tortious act’ (in Dutch: ‘onrechtmatige daad’). The question is how the law will react to this juridical fact. Which consequences are produced by this tortious act? Again, the answer is to be found in the sources of law, in this case in the Civil Code itself. It specifies in Article 6:162 paragraph 1 DCC that the tortfeasor, this is the person who committed the tortious act, is obliged to compensate (repair) the damage which his act has caused to someone else’s property. This means that the costs of buying and installing a new window for the house of the neighbour have to be paid by Klaas. In legal terms one says that the tortious act (juridical fact) has created an obligation (legal effect) which forces Klaas to fulfil a certain performance on behalf of his neighbour, in this case the payment of a sum of money in order to get the window repaired. The law has attached this debt to Klaas’ tortious act. Klaas’ neighbour is entitled to this performance. He has an enforceable claim arisen from an obligation against Klaas. So if Klaas will not carry out his indebted performance, his neighbour may ask the court to grant him the right to get and take it himself, though under assistance of a bailiff and the police. If it is not available anymore, he may sell Klaas’ property under execution at a public sale (foreclosure) and recoup himself out of the proceeds in order to get paid alternatively. The creation of an obligation to pay damages in money is not the only possible legal effect. Sometimes a tortious act will force the tortfeasor to fulfil another performance. And other juridical facts than tortious acts may of course have totally different legal consequences. It’s a lawyer’s job to make it all perceptible.

There are two kinds of juridical facts. Firstly, those known as ‘inactive juridical facts’. These juridical facts create legal effects without any human interference, but just because the law finds it appropriate that a certain factual event is followed by a specific legal consequence. Secondly, juridical facts that only bring about legal effects as a reaction to human behaviour, that is to say as a reaction to an event that is imputable immediately to certain human behaviour. Juridical facts that – directly or indirectly - require a human action to generate a legal effect are called ‘active juridical facts’. When a person intentionally performs an act in anticipation of a reaction of the law (he wants this legal effect to set in), one speaks of a ‘juridical act’. When a person performs an act, not with the intention to create a desired legal effect, but for another reason or without any valid reason at all, it’s still possible that the law will react to it by generating a legal effect, but then only because interests of other people or of society as a whole are involved. A tortious act is an example of such act. It triggers the law to impose legal effects upon the acting person, although this effect was not intended by this person. For this reason such acts are also called ‘operational acts’.

Inactive juridical facts

Inactive juridical facts are events which occur more or less spontaneously, but still have legal effects because a certain reaction is regarded to be necessary to deal with the newly arisen circumstances. Juridical facts not based on any behaviour of a person, may result from:

a. the quality of a person;

At birth (juridical fact) a child obtains by operation of law a surname and it becomes a person capable of acquiring property, debt-claims and other legal rights (legal effect). A person who reaches the age of 18 years (juridical fact), is recognised as an adult and therefore according to law competent to perform legal acts of his own without permission of his parents or guardian (legal effect). When someone reaches the age of 65 years (juridical fact), he is entitled to a pension payment granted by the State (legal effect). When a person dies (juridical fact), his heirs inherit his rights and duties (legal effect).

b. an mere occasional situation;

When a new strip of land is formed at a river bank (juridical fact), the owner of that bank becomes, by operation of law, the owner of the new strip without human intervention (this legal effect is known as ‘accretion’).

c. course of time.

Someone who has had the continuous possession of an asset during a number of years (juridical fact), will in course of time, by operation of law, become the owner of it (legal effect). When an agreement is entered into for a fixed period of time (juridical fact), it will automatically end (legal effect) at the expiry date, in the sense that no termination or other human interference is necessary to get this result.

Active juridical facts: 'operational acts' and 'juridical acts'

There are many legal effects that only come to existence when a person has behaved in a certain way. A certain behaviour, for instance an action or a certain passivity where an appropriate act was required, is necessary to put the law in motion. These active juridical facts can be subdivided into two types, namely in operational acts and juridical acts.

Within the first group, the operational acts, the law establishes a legal effect on the sole ground of a certain action, although the acting person had no intention to create this legal effect. He performed this operation for other reasons or without any valid ground at all, but the law nevertheless links a legal effect to it, for example because the operation affects public safety or the financial position of another person. Since the law attaches the legal effect purely to the behaviour of the acting person, without taking into consideration if the acting person aimed at this effect, such legal facts are called ‘operational acts’.

Within the second group, the juridical acts, a person intentionally performs an act because he knows that the law will respond to it by acknowledging the conception of a particular legal effect. The act is explicitly chosen to let this legal effect arise. By performing the act, the person anticipates on this reaction of the law. In his act he makes clear that he wants this legal effect to set in, and the law awards his desire by changing the existing legal positions in the wanted manner.

Operational acts: 'lawful acts' and 'unlawful acts'

Characteristic for an operational act is that the law reacts to it by establishing a certain legal effect regardless whether the acting person intended to produce this effect. The operation in itself is enough to call in the legal effect, irrespective of what the active person intended with it. Operational acts come in two ways: in lawful and in unlawful acts.

Typical for a lawful operational act is that the performed activities are not in conflict with written or unwritten standards of law. The operation is in agreement with legal or social ideas on how to behave. Nevertheless the law responds to it by producing a legal effect that changes the existing legal positions of the persons involved. Although the operation was not reprehensible, it has changed the factual circumstances, usually to the disadvantage of the person acting lawfully. Since his operation was appropriate, it would be unfair if he should bear these negative results, especially when someone else has profited from his behaviour. Even when this other person doesn’t want to give up the obtained benefits in order to compensate the damage that the acting person has suffered from his operation, the law orders that he must do so. The legal effects which the law ties to a lawful operational act offer a reasonable solution for a situation where neither the acting person nor other involved parties have foreseen al consequences of the operation. There are only a few of such lawful operational acts in Dutch civil law.

If someone voluntarily watches over someone else’s interests, without being ordered or asked to do so, then the law implies that he has to continue to manage this other person’s affairs until that other person takes over himself again. This is known as ‘benevolent intervention in another's affairs’ (‘negotiorum gestio’ or, in Dutch, ‘zaakwaarneming’, regulated in Article 6:198 DCC). An intervention in someone else’s affairs may take place when Arnold notices that during the absence of his neighbour Nicole the water control in her house has cracked. If Arnold, in his attempt to prevent further damage, breaks the window of Nicole’s house and climbs into it with the intention to repair the leak, he does act without having Nicole’s instruction or authorisation to do so. The law determines that Arnold is not responsible for the damage caused (for example the broken window) and that he is entitled to a compensation for the costs he has made (for example the costs of repairing the leak). On the other hand, Arnold is not only allowed, but also obliged to look after the affairs on behalf of Nicole until she’s able to take care of her own dealings again. Arnold can and must place a new window in Nicole’s house to protect it against invaders or thieves. He must try to get a hold of Nicole to inform her about the situation. As seen earlier, the law specifies that the actual behaviour of Arnold (penetrating the house, repairing the leak, placing a new window) produces automatically a number of legal effects (duty to continue to take care of the affairs, duty to notify Nicole, right to obtain a compensation for expenditures made etc.), although Arnold never intended to establish these specific legal effects by performing his operations. At first, he only wanted to prevent the infliction of further damage. His acts didn’t especially anticipate on the creation of the before mentioned legal effects. These effects are merely produced by operation of law to create a reasonable solution, taking into consideration the interests of all involved parties, i.e. of Arnold as well as of Nicole.

When the behaviour of the acting person is not in conformity with the law or the conceptions of society, the law may also respond by imposing legal effects to the detriment of the acting person. Such behaviour is called an unlawful act, better known as a tortious act. The behaviour of the acting person in such a situation is contrary to standards of written or unwritten law, at least it goes against the interests of others or of the society as a whole, without any justification for this. The harm caused by the tortious act must be repaired. The law forces the offender (tortfeasor) to compensate all damages caused by his act to the persons who were harmed by it. The law, in other words, labels de unlawful operation of the tortfeasor as a tortious act (juridical fact) and calls into existence an obligation (legal effect) between the tortfeasor and the injured person. Within this obligation the injured person is the creditor: he is entitled to a compensation for damages (debt-claim). The tortfeasor is his debtor. He must repair the damage by paying a certain amount of money or by accomplishing another performance (debt) in favour of the injured person.

When Arnold, without any valid reason, throws a stone through the window of Nicole’s house (operational act), he commits a tortious act that, according to law, produces an obligation as legal effect. Under this obligation Arnold is compelled to pay all damages that Nicole has suffered from his behaviour. One can’t say that Arnold, when throwing the stone, anticipated on the arising of this specific obligation. Perhaps he wanted to take revenge on Nicole or he was purely petulant, perhaps he acted by accident, but he didn’t throw the stone in order to create an obligation forcing him to compensate the damage Nicole suffered. Nevertheless, the law connects this legal effect to his operation. It regards his operation as a tortious act and induces Arnold to pay the damage that has been caused by it. If need be, the court has to determine the nature and size of the compensation. Consequently, the legal effect that the law ties to a tortious act is nothing else than the coming into existence of a debt-claim on behalf of Nicole and of a corresponding debt for account of Andre, even though Andre nor Nicole ever intended this to happen. The previous of course doesn’t exclude the possibility that Andre also has to accept a criminal punishment. This, however, is not a topic of civil law.

The before mentioned examples must not create the wrong impression that according to Dutch civil law a tortious act is always a result of a behaviour that is prohibited by law. Also when someone harms the interests of another person due to careless conduct or negligence, so without breaking any specific rule that is incorporated in a Code, it’s possible that a tortious act is attributable to him. The legislator believes, as it happens, that in certain circumstances the acting person is to blame for his careless behaviour. This justifies that he has to compensate the damage that is inflicted on another person, the more because this person – contrary to the active person – didn’t do anything wrong. In that sense someone must observe as much caution and prudence as reasonably can be expected of him in the given circumstances.

A contractor builds a house in a suburb. During the construction period all kinds of dangerous tools are placed on the working site. The contractor has not secured this site with a fence. Neither has he packed up the tools in a safe and closed shed. The area is accessible for everyone. Soon the children of the village start using the working site as play ground. While playing, one of the children turns on an electric saw and wounds itself seriously. The contractor is responsible for the damage caused, even though no rule of law directly stipulates that he has to place a fence around the working site or that he must put the tools away. Given the circumstances he should have taken in consideration that the children in the neighbourhood could use the working site as play ground. Within the limits of reason he should in advance have taken measures to prevent such accidents of happening. Because he didn’t do so, he has acted carelessly (tortious act), so that he has to compensate the damage which others have suffered from his neglect (legal effect).

Up until now it was assumed that the tortfeasor of a tortious act was in a way to blame for the damage that had occurred. He violated the law or acted at least careless or neglectful. Exactly because of this culpable offence or negligence, it seems fair he is responsible for the harmful consequences of his operations. However, such culpability is not always necessary in Dutch civil law to qualify an operation as a tortious act. Sometimes a person is liable for the negative effects of a certain event, even when he’s not to blame for it at all. This happens when, according to common opinion, the event that has caused the damage is more imputable to him than to the person who has suffered the damage and who has no connection whatsoever with this event other than that he is harmed by it. Generally this liability results from a certain quality of the liable person, which capacity in itself carries a certain risk that a damaging event will occur. A quality that in itself may imply liability is for instance the fact that the liable person is the owner of the property that has caused the damage or that he’s the employer or parent of the individual who actually made the fault (his employee or child). For this kind of legal responsibility the terms ‘strict liability’ or ‘no-fault liability’ are used. The literal translation of the Dutch word used for it (‘risicoaansprakelijkheid’) would be ‘risk liability’. A no-fault responsibility is absolute, since it allows no defences.

Liesbeth is the owner of a house. At a given moment a tile falls off of the roof of her house, as a result of which a passer-by gets seriously injured. Even when Liesbeth in fact couldn’t have done anything to prevent this accident, she is responsibly for the damage caused to the passer-by pursuant to Article 6:174 DCC. Her liability results solely from her capacity as owner of the damaging object. According to the general accepted views of society the owner of an object has to bear the risk that his object contains a defect and causes damage as a result, irrespective of his misbehaviour (fault) or carelessness (neglect).

Of course, in reality the operation that sets off a strict liability is not a genuine tortious act. The law has only characterized the involving events as a tortious act to be able to create a strict liability in a way that fits into the legal system. A tortious act was the most simple solution to get this result. For this reason one also speaks of a pseudo-unlawful act. As stated before, it was irrelevant in the above mentioned example whether the owner of the house could be blamed for the event that had caused the damage. Of course it’s possible as well that she indeed was to blame for it. If she had neglected to maintain her house properly, as a result of which its tiles and bricks spontaneously break down, then she personally can be blamed if somebody gets hurt through falling bricks. In that case she had been careless for the reason that she should have known that other people could get injured. Yet, she did nothing to prevent this from happening. From these circumstances (juridical fact) an unlawful act could arise that might be regarded as a genuine tortious act. However, this wouldn’t make any difference in relation to her liability. In both situations she has to pay the same compensation for damages.

Juridical acts (acts of law)

Thus far, juridical facts occurred more or less without taking into consideration the legal intentions of the involved or acting persons. The law tied a legal effect to an inactive juridical fact if this was necessary to regulate a specific situation which needed a legal answer or it wanted to straiten out an unforeseen or unwanted result that in fact was caused by a certain behaviour of a person (operational acts). In these events the legal effects came to existence although the involved or acting person(s) didn’t have the intention to insert them. A person may, however, set up a legal effect on purpose. He then intentionally performs an act to set the law in motion with the purpose to create a wanted legal effect. He knows that if he performs this specific act, the law will respond to it by adding the intended legal effect to it. In this way a person may construct his own legal effects. Acts that are intentionally performed by a person to bring about a sought legal effect are called ‘juridical acts’ (or sometimes also ‘legal acts’ or ‘acts of law’). Juridical acts always include (and must include) the intention of the acting person to create a particular legal effect.

Evidently, a person is not capable to change the legal position of others merely by performing a juridical act on his own. He can only create legal effects within the framework of his own legal positions. It is not possible to impose obligations upon other people out of the blue just by performing a one-sided juridical act. Nor is it possible to take away someone else’s rights or property just like that. The legal position of other people is protected by law. So a person may wish to buy someone else’s house and he may proclaim his intention continuously, this still doesn’t mean that he obtains any right in that house or against its owner. To achieve such a result the law requires the consent and sometimes even the cooperation of that owner too. As a starting point only he has the capacity to change his own legal positions, existing within the framework of his own legal sphere. Others cannot break into that framework without his approval.

The law only recognizes that a person is able to set up legal effects within the framework of his own legal sphere, that is to say as long as he stays within certain boundaries set by law. When one single person performs an act that encloses solely his intention to create one or more legal effects, which indeed are recognized and instituted as such by law, then this act is called a one-sided (or unilateral) juridical act. An example of this is the last will of a testator. The proprietor is the only person who may decide what should happen with his property when he dies. He may grant certain assets to some of his children or other heirs or legatees. In order to achieve this result, he can make a last will in which he states which heirs and legatees shall be entitled to his estate and to what extent. These legal effects set in as soon as he dies, just because of this one-sided juridical act as written down in his last will. Although a valid last will must be made by notarial deed, so that the involvement of a notary is required, it is still a one-sided juridical act of the testator only. The participation of the notary is needed to observe legal formalities. His approval with regard to the content of the last will of the testator is not required. It’s irrelevant whether he agrees with the choices the testator has made in his last will. Probably he want even know the nominated heirs or legatees himself. Because only the intention of the testator is relevant to create the wanted legal effects, one speaks of a one-sided juridical act.

The same applies to a rejection of an inheritance by the heirs. A person who is called as an heir to the estate of a deceased obtains by operation of law a certain share in this estate. But the testator cannot force the inheritance upon him. Within the framework of his own legal sphere the heir is free to decide if he accepts or rejects the inheritance. When he doesn’t want to inherit anything from this deceased person, he may reject the inheritance by means of a written declaration to the court. Such a declaration makes out a one-sided juridical act of this heir. Only his intention is of importance to create the sought legal effect, namely to abandon all rights in the deceased’s estate. Other examples of a one-sided juridical act are the waiver of a right, the one-sided termination of an employment or lease contract and the formal notice of default given to a debtor. They all produce their own legal effects, which the acting person wanted to accomplish. When someone makes an offer to close a deal he performs a one-sided juridical act as well. The acceptance of this offer by the addressed party is a one-sided juridical act too. Both one-sided juridical acts, however, together form an agreement, which is a two-sided juridical act with its own legal effects.

That a one-sided juridical act only requires the intention or consent of one person, to be precise of the one who is performing the act, doesn’t mean that it can never have some consequences for other persons. It might even have harmful effects for someone who is not involved as a party to the one-sided juridical act. The employee whose employment contract is terminated, loses his job and income. An heir who is disinherited in the last will of the deceased, may miss, as a result, a considerable advantage. But in these situations the acting person still remains within the boundaries of his own legal sphere, as it is granted to him under law. The law has to recognise too that an employer under circumstances must be able to terminate the employment contract, even against the will of the employee, and that a testator is entitled to determine himself who shall acquire his property after his death. The acting person may use these possibilities within his own legal sphere independently.

Peter intends, when he dies, to give a part of his property to his new girlfriend. When he doesn’t act at all, the law will assign his estate at his death entirely to his three children. That’s the legal consequence that is linked to this inactive juridical fact (death). But Peter also knows that he is able to change this course. The previous rules are to a large extent of permissive law. Peter is therefore able to set up another legal effect, though only insofar the law allows him to do so. To achieve this result, the juridical facts must be transformed. The law implies that the wanted legal effect can be reached by making a last will, in which Peter nominates his girlfriend as one of his heirs. Such a last will is nothing else than an official statement of the intentions of the testator, in this case of Peter, written down by a notary in an official deed. The law will now take Peter’s intentions into account. In due time it will link the desired consequence effectively to Peters statements. Peter is aware of this. That's exactly why he has asked the notary to draw up his last will. To this end a one-sided juridical act (last will) is intentionally performed by Peter (testator) in order to create a wanted legal effect (his new girlfriend should obtain a share in his estate when he dies). Although Peter, by making this last will, changes the position of the possible heirs, he stays within the boundaries set by law, because the law accepts that he, as owner of his property, may do with it as he pleases. So he is allowed also to pass it to a specific person after his death. The future heirs of Peter do not yet have any claim on his property, at least not as long as he is alive. This means also that Peter may change his last will again. If, for instance, his relationship with his new girlfriend would end, he may adjust his last will once more by declaring in a new notarial deed that she’s not his future heir any longer. Peter then doesn’t step over de fences which surround the legal sphere of his girlfriend. He’d never had broken in her own sphere.

Usually more people are directly involved in one legal act. That’s the case when a person wants something for which he has to enter into the legal sphere of someone else, for instance because he wants to acquire this persons car or he wants him to perform a service. He can’t do that independently, at least not with legal binding effect for the other person, but has to have the permission of the other one in whose legal sphere he wants to accomplish a result as well. The other person will only give his consent either out of generosity or because he wants to get something in return from the opposite party. In such events the intentions (consent) of at least two persons are necessary to create the aimed legal effect. When two or more persons perform an act that encloses their mutual intention to create one or more legal effects, which effects indeed are recognized and instituted as such by law, then this act is called a two-sided (or multilateral) juridical act. Examples of such acts are the conclusion of a marriage, the transfer of an object from the seller to the buyer and the making of a decision by the members of the board of a legal person.

Joep and Merel want to get married. They know that, in order to reach this result, they have to go to the town hall to make a statement for this purpose in front of the Registrar of Civil Status. Their statements will be written down by the Registrar in an official marriage certificate. Merel can’t be forced into a wedding against her will. Therefore the statement of one of the involving parties cannot compose the wanted marriage. When Joep appears alone at the town hall to declare numerously to the Registrar that he wants to marry Merel or when Merel states that she doesn’t want to marry Joep at all, then there will be no marriage. These statements do not produce that intended legal effect. Joep cannot independently create any rights or obligations within the legal sphere of Merel. Important to notice is furthermore that both – Joep and Merel – have to express the same intention. The content of Joep’s statement has to correspond with that of Merel’s. If only one of them expresses his wish to get married, then this is not enough to complete a legal marriage between them. So if Joep, for instance, says he wants a marriage, while Merel speaks of a registered partnership or a cohabitation agreement, then the Registrar may not bring about any legal effect. The legal solemnization of a civil marriage is a two-sided juridical act between the prospective spouses, Joep and Merel, whereas the involvement of a Registrar of Civil Status is merely required for procedural reasons. Only when both potential spouses express their corresponding intentions, if necessary in the required form (two-sided juridical act), the law will attach the wanted marriage (legal effect) to it.

The most important two-sided juridical act is an agreement (contract). It arises as soon as two parties have expressed towards each other their common intention that one of them shall carry out a performance on behalf of the other. So one of the parties has accepted that he is obliged to perform something, while the other has accepted this performance on his behalf. The law then produces, on the basis of this agreement (two-sided juridical act), one enforceable obligation (legal effect). This means that the person who has accepted the performance on his behalf, is able to ask the assistance of the judicial authorities and the police to obtain the promised performance.

Generally an agreement doesn’t create just one obligation, since a party will usually only agree to perform something on behalf of the other if this other party agrees to fulfil a counter performance in return. In that case both parties want to obtain something from each other. When parties express their mutual intention to create two or more corresponding obligations, their two-sided juridical act is called a mutual (or reciprocal) agreement. In principle such an agreement may be concluded without the observance of any formalities. There are no requirements concerning the way parties have to express their mutual intentions. As long as it’s clear that they both want the same obligation(s) to arise, the law will react by establishing this legal effect. As soon as parties (verbally) have come to an agreement on the performances to which they have engaged themselves towards each other, there is an agreement (juridical act) to which the law responds by creating the intended obligations (legal effect). Because it is a legal effect, i.e. a fact that is recognized as such by law, the parties are legally bound to perform the arisen obligations. If not, the other one may claim in court that his counterparty has to settle his debt.

Paul informs Willem that he wants to buy his boat for € 20,000 and that Willem has three weeks to think about his proposal. Willem accepts this offer immediately. Both, the buyer and seller, have expressed their mutual intention to conclude a binding sale agreement which creates an obligation for Willem to transfer his boat to Paul and a corresponding obligation for Paul to pay an amount of € 20,000 to Willem.
The offer Paul made, is a one-sided juridical act. With this offer, Paul has only committed himself. He has changed the existing legal positions within his own legal sphere. Because Willem was given the opportunity to think about the proposal for three weeks, its an irrevocable offer. This means, according to Dutch civil law, that Paul has to observe it during this period of time. He cannot withdraw it before three weeks have expired, even when after a few days he doesn’t want to buy Willem’s boat any longer. Paul is free to change his own legal position in this way. If he wants to bind himself under these conditions, he may do so. But if he does, then the law links this legal effect (irrevocability) to his act.
Surely, Paul’s offer has no immediate effect for Willem. Paul cannot independently create any legal effects within Willem’s legal sphere. His one-sided juridical act (the offer) has only the before mentioned legal effect within Paul’s own legal sphere, namely that Paul cannot pull back his offer for at least three weeks. By making the offer Paul has created the opportunity for Willem to step into Paul’s legal sphere. If Willem accepts the offer, then Paul has to observe the mutually intended legal effects. But that’s what Paul obviously wanted when he made his irrevocable offer to Willem. When Willem merely thinks it’s a good idea to sell his boat for € 20,000, this in itself doesn’t mean that a binding agreement has come to existence. Willem still has to express his intention to Paul. When he says that he accepts the offer, he makes clear that he as well wants the deal to be closed on the conditions mentioned in Paul’s offer, therefore that he shall transfer the boat to Paul if Paul pays him € 20,000. Willem’s acceptance is a one-sided juridical act of its own. As soon as Willem has mentioned his corresponding intention to Paul, he has created a legal effect within his own legal sphere, namely the obligation to sell the boat for € 20,000 to Paul. This one-sided juridical act of Willem, however, has not only the effect that Willem can no longer withdraw from the agreement (a legal effect that only arises within his own legal sphere), but also that from that moment an agreement has been concluded, with its own legal effect, that has to be observed by both parties, Paul and Willem. In that sense Willem’s one-sided juridical act has immediate effect within Paul’s legal sphere too, but only because Paul himself has produced this result earlier by making an irrevocable offer, indicating his intention to be bound by a corresponding agreement as soon as Willem has given his consent to it. If Willem would have said to Paul that he wanted to sell his boat for € 25,000, then Willem’s intention would not have been in conformity with the intention of Paul. Consequently, no agreement would have been concluded, since the intentions of both parties aren’t identical. Such a deviant reaction of Willem is considered to be a new offer, now of Willem to Paul, to sell the boat for € 25,000. Willem may, within his own legal sphere, commit himself to such an agreement. But because Paul did not stated in advance that he shall buy the boat for this higher price, this one-sided juridical act of Willem cannot bring about any legal effects within Paul’s legal sphere. Therefore Paul may still reject Willem’s offer, since no agreement has yet been brought about.

The result of a mutual agreement is the conception of two or more obligations between the involving parties. On the basis of such an obligation the creditor may claim that the other carries out the indebted performance. If the debtor doesn’t comply with his obligation, then the creditor may, after obtaining authorisation of the court, enforce his debt-claim by taking the performance himself or through a sale under execution of the (other) property of the debtor. Therefore the obligation of the seller, derived from a sale agreement, forces him to deliver the sold object to the buyer. When he fails to do so, he is legally responsible for his non-performance. The obligation of the buyer consist of the duty to pay the agreed purchase price to the seller. The buyer as well has to perform his obligation. If he doesn’t comply with it, the seller may file a legal claim to obtain the performance or an alternative compensation on the basis of a court order.

Not every agreement leads to an obligation that intends to bring a change in real property rights. An obligation may also imply the duty to perform a work or a service or to accept that someone else makes use of a certain asset for a while. For the fulfilment of such an obligation it is not necessary to carry out any legal formalities, nor to perform a separate legal act. The obligation comes to existence solely on the bases of the mutually corresponding intentions of parties, irrespective of how these intensions have been expressed. Also in the performance of this obligation no other juridical act or formality has to be observed. The employee has to perform labour activities, the plumber has to complete a service by actually fixing a pipe, the lessor has to tolerate that the lessee uses his house in the agreed way, and so on. It just concerns factual events and operations. But since these debtors are usually entitled to a counter performance in money, there will nearly always be a transfer of coins and banknotes. This is a juridical act of its own, because it intends to change the right of ownership of the coins and banknotes from the debtor (the one who has to pay th agreed price) to the creditor (the one who has performed the work or service or who has tolerated something in return for a counter performance in money). In modern times, however, payment often takes place by giro: the amount is booked from the bank account of the debtor of the money obligation to the bank account of the creditor. As a result the debtor is towards his bank entitled to a less amount, whereas the creditor towards his own bank can demand the payment of a larger amount than before the additional deposit of the purchase price. Such a transfer of money is a juridical act as well.

Passage of property demands two juridical acts

Under Dutch civil law the creation of an obligation in itself doesn’t grant any right in the wanted property of the opposite party. The effect of a sale agreement is not that the buyer in any way has obtained a property right in the sold object itself. He only has a debt-claim against the seller, who still has to perform his debt in conformity with the agreement. And the seller, on the other hand, has not yet acquired any property right in the money that the buyer is indebted to him. He as well has just a debt-claim against the buyer personally. The money still has to be handed over to him by the buyer.

Dutch law takes the view that real property rights, i.e. property rights that can be maintained and enforced by its proprietor against anyone who could encounter the object to which this right is attached, must be published in such a way that everyone is able to see whether such a property right exists, and if so, what kind of property right it concerns and to whom it belongs. Real property rights have to be observed by everyone who could come across the object to which the real property right is attached. But as a consequence, everybody must at least have the opportunity to know if a real property right is vested on an object, and if so, who is entitled to it.

This implies that a change with regard to a real property right in an object has to be published too. Everyone must be able to recognize that another person, as of a certain moment, has obtained the real property right in the object. This result cannot be reached by an agreement between the seller and buyer. Such an agreement is only known to the involved parties themselves. In their mutual relationship its sufficient that they both know what is expected of them. An agreement that has been concluded orally or by written contract brings along that the seller knows what en to whom he has to deliver, while for the buyer it’s clear which price he has to pay, when and to whom. They have expressed this intention towards each other. If not, then the law would not have acknowledged their arrangements as a binding agreement. Within the legal relationship between the parties to that agreement there is no need to inform other people about its existence or content. The debt-claims and obligations derived from the agreement only produce legal effects between the involved parties themselves, not for other people.

This is different where it concerns real property rights. Those rights have to be respected by everyone. The proprietor can uphold and enforce his right against the whole world. It’s obvious that it is the ultimate goal of the buyer, who has entered into a sale agreement with the seller, to obtain the ownership (real property right) of the sold object which still belongs to the seller, whereas the seller has the objective to acquire the money coins and bank notes in the hands of the buyer that in total represent the agreed purchase price. But since it is felt desirable that an agreement can be concluded without the observance of any formalities, it lacks the necessary publication. Therefore the debt-claims and obligations arising from an agreement only have effect between the buyer and seller personally, even when they are based on the intention to acquire property rights which are to be enforced against the whole world. Obligations force the debtor to perform all formalities necessary to comply with the essential publication requirements to make the intended shift of property visible for other people who, after the transfer, have to respect the real property right (ownership) of the buyer (new owner). One could say that the debt of the debtor in fact is an obligation to perform all formalities that the law requires to let the world know that there has been a change with regard to an entitlement in property. These formalities together form a separate juridical act: a transfer of an object or the establishment of a limited property right. After these formalities have been completed, the debtor has fulfilled his obligation. At the same time the change in property has been published in such a way that everyone has the possibility to notice that a real property right has passed to another proprietor or that a limited real property right has been granted to someone. With this, the involved real property right has been transferred or established. As of that moment the acquiring party can enforce his right not only against his debtor (demanding performance of the obligation, thus demanding that the other party carries out all formalities necessary to publish the transfer), but against each and all (after the other party has performed these formalities, all people are able to see that the real property right know belongs to a new proprietor). When the debtor is not able to comply with his obligation or he simply refuses to perform it, the creditor may ask the court permission to execute the necessary formalities himself or, if that’s no longer possible because the debtor no longer owns the sold object, to grant him an alternative compensation for damages.

Paul and Willem have entered into an agreement with each other, producing an obligation for Willem to transfer the ownership of his boat to Paul and an obligation for Paul to pay a sum of € 20,000 to Willem. As said before, with this agreement Willem has not yet obtained the ownership of the money. The coins and bank notes are still in Paul’s possession and his bank account is just as high as it was before the agreement. And also Paul does not yet own Willem’s boat. Willem still possesses the boat and he holds the key and other attachments. Other persons are not aware of the existence of this agreement, since it isn’t published in any way. It only creates effects between Willem and Paul mutually. Because Paul still has hold of the money and Willem still controls the boat, keys and accessory papers, other people may think that Paul is still the owner of the coins and banknotes and Willem of the boat. In fact, they are. The publication of real property rights, like a right of ownership, attached to a movable thing (boat, coins and banknotes) takes place by exercising the actual control over the thing. Third parties may assume that a person who exercises control over a boat or money is the owner of it, unless they should have known better. This means that the formalities to publish a shift in entitlement to these things, requires that these things themselves are handed over to the other party in such a way that he actually has control over the thing.
The agreement between Paul and Willem is merely the first step to be taken to make a shift in entitlement. The legal effect of this agreement is the creation of two obligations. One of these obligations has the effect that Paul can demand and, if need be, enforce that Willem performs all legal formalities necessary to make the world know that Paul has become the new owner of the boat. In this case: Paul may demand that Willem delivers possession of the boat, the keys and the accessory papers to him, so he is able to present himself to the outside world as the new owner of the boat, and doing so, he is continuously publishing his real property right (ownership) in that boat. Only after these formalities are fulfilled, Paul has acquired the ownership of the boat. The same applies to Willem with regard to his debt-claim for the payment of the agreed sum of money (purchase price). The other obligation, derived from the sale agreement, has the effect that Willem may demand that Paul hands over to him just as many coins and banknotes as was agreed upon. After Willem has received the money, he puts the coins and banknotes in his wallet. By doing so, he exercises control over these movable things and, with that, continuously publishes his real property right (ownership) in the coins and banknotes. As long as Willem holds the coins and notes in his wallet, other people may assume that he is the owner to these coins and banknotes. And legally he is.
So always a distinction has to be made between the creation of an obligation against the debtor that forces the debtor to perform the formalities necessary to publish the shift in entitlement and the performance of these formalities that result in the actual shift itself. The agreement (juridical act) between Paul and Willem only produces obligations (legal effect) between them. By performing the agreed formalities, parties enter into a second juridical act with each other, the transfer (juridical act) that indeed has the result that the entitlement to the sold object passes to the buyer, who as of then has acquired a right of ownership in that object (real property right) that he can vindicate against everyone (legal effect).

This example shows that Dutch civil law, as a principle, only acknowledges a shift in real property rights from one person to another when this change is published by the involved parties in such a way that it is recognizable too for other people. This is the key element of Dutch property law. Property rights have to be published. Because of this, third parties are also in a position to detect who is entitled to give up (abandon) his right by granting it to someone else. Third persons who have acquired a property right from an alienator without power of disposition aren’t protected when they could and thus should have been aware, given the publication of the involved real property right, that this alienator was not authorised to transfer the object. According to that publication, the alienator was not the owner or other proprietor of the to be transferred object. The acquiring party, therefore, knew or at least should have known that the alienator could not grant any property right in that object to him. He should have paid more attention. The real proprietor, who had published his entitlement in the correct way, is under these circumstances not to blame for any misconceptions at the side of the acquiring party. So he may invoke against him that he has not acquired any right or title in the received object according to law. The proprietor is still the only person entitled to the object and may claim it back from the acquiring party, if need be with the help of the judicial authorities and the police. But it is not impossible that a property right has not been published correctly, so that the acquiring party could not have become aware that the alienator lacked power of disposition. When the real proprietor has not made use of all possibilities to publish his entitlement properly, then he is to blame for the fact that an unauthorized alienator was able to present himself to the outside world as someone with power of disposition, at least he is more to blame than the acquiring party who relayed on the incorrect or incomplete publication and who, therefore, was allowed to believe that the alienator, according to this publication, had power of disposition. In that case the third party is protected by law. Pursuant to law he will have acquired the right that he thought he would obtain. The real proprietor has lost his property right and must turn for damages to the unauthorized alienator, who violated his right.

An agreement always creates one or more obligations. But not every obligation results in the performance of a second juridical act. Many obligations indicate that the debtor has to carry out some factual operations to which the law does not respond with a legal effect. An employee who has entered into a temporary employment agreement under which he has committed himself to pick tomatoes for 40 hours in January, is not obliged to perform a juridical act. He only has to perform the agreed work. The law does not link any legal effects to these activities. As soon as the employee has fulfilled his work, he has performed his obligation. At that moment, this obligation has come to an end. The employer cannot demand that the employee also in February performs work for him.