Legal System of Civil Law in the Netherlands
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.
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.
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?
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.
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 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.
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 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;
b. an mere occasional situation;
c. course of time.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.