Burgerlijk Wetboek

The Burgerlijk Wetboek (or BW) is the civil code of the Netherlands. Early permutations were largely based on the Napoleonic code. The Dutch Civil Code was given substantive reform in 1992. The Code deals with the rights of individuals (Book 1), legal entities (Book 2), the rights of assets(Book 3) and succession (Book 4). It also sets out the law of property (Book 5) and of contracts and obligations (Books 6-7). Proposed amendments will add Books on intellectual property and private international law.

History

Before efforts at unification almost every region and town in the Netherlands had its own law. Local Dutch laws took much from Roman law, particularly in the law of obligations and in the practice of written codes.^[1] However no universal written code existed before the 19th Century. Many attempts at a Code were short-lived, not helped by constantly changing governments and political conditions. In 1531, Charles V, the Spanish Lord of the Netherlands, had ordered the codification of existing laws with a view towards uniformity. However the Eighty Years War and the end of Spanish rule in the Netherlands interrupted such plans. Some two centuries later, in 1801 under the new Batavian Republic, another attempt was made. In 1804, a written code was partially ready but never saw operation.^[2] On 24 May 1806 the Netherlands became a French client state styled the "Kingdom of Holland" under Napoleon's brother, Louis Bonaparte. The King was instructed by Napoleon to introduce a Civil Code. A Committee was formed and, drawing from the Code Napoleon and some previous work, a Code - called the Wetboek Napoleon - was introduced by Royal Decree on 1 May 1809.^[3] Old Roman and Dutch law was abolished except where specifically retained by the Code. However the 1809 formulation was short-lived. On 1 January 1811, the Netherlands was annexed by the French Empire and the Code Napoleon was introduced.^[4] Dutch independence was restored with the collapse of French rule in 1813. The Kingdom once again pursued codification. Article 100 of the 1814 Constitution refers to a codification based on Dutch law. Various proposals were made between 1816 and 1830.^[5] Finally in 1830 a new code was accepted by the Parliament. It was mix of influences - Roman, Dutch and French. This code was adopted as the Burgerlijk Wetboek of 1838.^[6]

The 1838 Code, French influence and Amendments

The 1838 Code entered into force on 1 October 1838. While it was substantially influenced by the Code Napoleon, it did adopt many Dutch innovations. First, one might note differences in structure. Unlike the French model, the BW drew a strict contrast between real rights (rights in rem) and personal rights (rights in personam). Property provisions were arranged around the principle of a 'right' to property.^[7] Many differences in content also prevailed. On selected issues, French law was either modified or abrogated.^[7] Meijer identifies many key alterations: First, many French statutory provisions were removed. Meijer points to the omission of the concept of mort civil (or civil death), a concept which was wholly foreign to Dutch society. (Ibid, 233) Other omissions can be seen where a legal concept was culturally inappropriate for the Netherlands or inconsistent with existing principles of Dutch law. Second, modifications were made to codify existing Dutch law or give effect to Dutch legal standards. For example, in regard to property, the 1838 BW provided that the registration of a transfer deed was a precondition of ownership passing in real property. This was a codification of the original position in Dutch law. It replaced the alternative formulation of the French code. (Ibid, 233) However it remained true that the 1838 BW did draw much from the Code Napoleon, as Meijer concludes:

The [French] Code Civil was the model for the BW of 1838. This does not mean that the BW is a copy of the Code. It appears that the BW was not simply a translation. The BW is influenced by the Code Civil, but this does not justify the view that the Netherlands adopted French law. On the contrary: Some French rules were removed. Former Dutch law was inserted instead of the French rules or as a supplement to the BW. We find a large part of the Code is based on joint roots, and that the most important common background is Roman law.

Over the next century the Code was amended many times. In 1947, the Dutch government instructed Eduard Meijers with the complete revision of the Code. The 1838 BW was thought "out of date" and in need of modernisation. The driving force was technical recodification; it was argued that developed private law should be brought within the ambit of the Code.^[8]

1992 Code Reform

Despite the initial scope of revision being 'technical reform', the 1992 BW introduced substantive innovations to both the prior Code and established case-law.^[9] The technical focus of the revision is informed by the German BGB. The distinction between civil law and commercial law is removed in favour of the broader ambit of private law. The Code now covers all aspects of commercial regulation - corporations law, insurance law, transport law, consumer law and labour law. For example, the 1992 Code now regulates 'commercial contracts' specifically (Book 6, Art. 119a). An action for unjust enrichment is available (Book 6, Art. 212), as are actions for a 'defect of consent' or an 'abuse of circumstances' (Book 6, Art. 44(4)). More generally, requirements of good faith now appear to be an 'omnipresent' theme throughout the Code: Art. 1 (Book 6) provides that both parties in a relationship are to behave equitably and reasonably towards each other. This appears to extend beyond contracts into other realms of law. The 1992 Code is more technical, systematic and abstract than its predecessor. It is also more conceptual, providing for many well-defined principles at differing levels of abstraction. A strict pattern of general rules preceding more detailed ones is honoured throughout. For example, for the purposes of tort, the concept of "an unlawful act" underlies liability. The concept will have differing applications in different circumstances.^[10] The Code is also more nuanced, providing for degree and qualification where an 'all or nothing' approach may have prevailed under the prior Code.^[11] Much discretion is also vested in the courts. This measure of flexibility permits 'intermediate solutions' to complex problems.

Like most other Civil Codes, procedural rules and public law remains outside the ambit of the 1992 Code.

Criticisms

The Code has been criticised for affording too much discretion to courts.^[12] This, it is said, undermines certainty, a key aim of codification. On the other hand, flexibility allows the Code to meet new challenges without regular amendment. Further, the consolidation of a wide body of commercial law into the Code now makes it a 'one-stop' reference for private law and easily accessible and relevant to citizens and businesspeople alike.^[11]

Structure

The Dutch Civil Code is presently composed of some 3000 articles and eight books:

BOOK 1: Individuals and Family
BOOK 2: Legal Entities
BOOK 3: Assets
BOOK 4: Inheritance/Succession
BOOK 5: Property
BOOK 6: Contracts, Obligations
BOOK 7: Specific Contracts I
BOOK 7(a): Specific Contracts II
BOOK 8: Movement Resources and Transport
BOOK 9: Intellectual Property
BOOK 10: Private International Law

Note: Book titles in italics are proposed additions to the Code that have not been incorporated as of 1 January 2006.

References

1. ^ Gerrit Meijer (November 2002). "The Influence of the Code Civil in the Netherlands". European Journal of Law and Economics 14, 3: 228. 
2. ^ Gerrit Meijer (November 2002). "The Influence of the Code Civil in the Netherlands". European Journal of Law and Economics 14, 3: 229. 
3. ^ Ibid,. 229-230. 
4. ^ Sanne Taekema (2002). Understanding Dutch Law. Boom uitgevers Den Haag. ISBN 11102202. http://books.google.com/?id=rTx8OJs72dUC&pg=PA53&lpg=PA53&dq=wetboek+napoleon. 
5. ^ Gerrit Meijer (November 2002). "The Influence of the Code Civil in the Netherlands". European Journal of Law and Economics 14, 3: 230–231. 
6. ^ A Fontein (1939). "A Century of Codification in Holland". Journal of Comparative Legislation and International Law 21, 3: 83–88. 
7. ^ ^{a b} Gerrit Meijer (November 2002). "The Influence of the Code Civil in the Netherlands". European Journal of Law and Economics 14, 3: 232. 
8. ^ Martin Hesselink (2006). The Harmonisation of European Contract Law. Hart Publishing. pp. 40, 41. ISBN 1841135917. 
9. ^ Martin Hesselink (2006). The Harmonisation of European Contract Law. Hart Publishing. pp. 40. ISBN 1841135917. 
10. ^ Arthur Hartkamp (November 2002). "Judicial Discretion under the New Civil Code of the Netherlands". The American Journal of Comparative Law (The American Journal of Comparative Law, Vol. 40, No. 3) 40 (3 Summer): 551–571. doi:10.2307/840585. JSTOR 840585. 
11. ^ ^{a b} Martin Hesselink (2006). The Harmonisation of European Contract Law. Hart Publishing. pp. 41. ISBN 1841135917. 
12. ^ Arthur Hartkamp (November 2002). "Judicial Discretion under the New Civil Code of the Netherlands". The American Journal of Comparative Law (The American Journal of Comparative Law, Vol. 40, No. 3) 40 (3 Summer): 551–571. doi:10.2307/840585. JSTOR 840585.