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.
Example:
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?
Example:
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.
Example:
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.
Example:
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.
Example:
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.
Example:
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.
Example:
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.
Example:
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.
Example:
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.
Example:
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.
Example:
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.
Example:
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.
Example:
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.
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