Burgerlijk Wetboek (BW)

From Max-EuP 2012

by Liane Schmiedel

The Burgerlijk Wetboek (BW) is the civil code of the Netherlands and its former colonies Aruba and the Netherlands Antilles (St Maarten and Curaçao).

1. History and development of the Burgerlijk Wetboek

a) Civil law in the Netherlands until 1838

The Burgerlijk Wetboek first entered into force on 1 October 1838. Its final draft had been greatly influenced by the shifting political history of the Netherlands in the late 18th and the early 19th centuries. Until the end of the 18th century, the seven provinces of the Netherlands did not form a centralized state, but were united in the Confederation of the United Netherlands. This changed in the course of the French Revolution. In 1795 the Batavian Republic was founded and the seven provinces were united as one centralized state. Along with the new nation, the call for a comprehensive codification of the law emerged. Article 28 of the Constitution of 1798 therefore instituted a law commission for the formulation of a civil code for the Netherlands. At that point, the civil law of the Netherlands consisted of the so-called oud-vaderlands recht, a mixture of the customary law of the different provinces and Roman law. Although nominally subsidiary, Roman law was of great importance for legal practice, since it was the law taught at the universities (see Roman-Dutch law). However, before the law commission could present a draft, the Batavian Republic became the Kingdom of the Netherlands under the reign of Louis Bonaparte, brother of Napoleon Bonaparte, in 1806. He continued the work on the civil code and assigned Johannes van der Linden, an attorney from Amsterdam, with the task. Van der Linden was renowned as an expert of the oud-vaderlands recht. He presented a draft, but, be- *fore this could become law, Napoleon insisted on introducing the French laws in the Kingdom of the Netherlands. On 1 May 1809, the Wet Napoleon ingerigt voor het Koningrijk Holland, a slightly altered version of the Code civil, entered into force. Although the Code civil was the main basis for the new law, some concepts of van der Linden’s draft found their way into the new code. One prominent example is the transfer of ownership. While under the Code civil, the contract itself was sufficient, under the Wet Napoleon a separate act of transfer was necessary, a requirement that has its origin in Roman law. The reign of the Wet Napoleon did not, however, last long. In 1811, after the annexation of the Netherlands, the Code civil was introduced.

After the liberation of 1813, the Code civil was maintained for the time being, but the codification process continued. In 1814, Johan Melchior Kemper was given the task of formulating a new draft. Kemper concentrated on the oud-vaderlands recht. He intended to dissociate the new Civil Code of the Netherlands from French law. However, when he finally presented his draft in 1816, the political situation had changed again in a way so as to prevent his draft from becoming law. In the course of the Congress of Vienna, the northern Netherlands were united with the southern Netherlands (Belgium). The Belgian lawyers attending the final consultations on the draft of Kemper were opposed to a draft that was so strongly influenced by the law of the northern Netherlands. Another draft by Kemper, which tried to take heed of these objections and was presented in 1820, failed to receive the necessary majority as well. This was due, not least, to the fact that now even amongst the lawyers of the northern Netherlands the support for the Code civil had become stronger. A new law commission, under the presidency of Pierre Thomas Nicolai, president of the court of justice of Lüttich, was created. Nicolai, a strong supporter of the Code civil, presented his draft in 1829. However, before it could enter into force, another dramatic change in the political situation took place—the separation of Belgium from the Netherlands in 1830. The lawyers of the Netherlands, now in charge of completing the codification, were once again in opposition to a draft that was highly influenced by French law. It was, therefore, not until 1838 that the Burgerlijk Wetboek could finally enter into force. In the meantime, a new commission had set out to purge Nicolai’s draft from French influence. However, the changes applied to the draft of Nicolai remained very small. As a result, the BW that en- *tered into force in 1838 was to a great extent still based on the Code civil that had been the basis for the work of Nicolai.

b) Law reform under Eduard Maurits Meijers

From its entry into force, the BW was heavily criticized with regard to its content as well as its systematic structure. However, several attempts to initiate a comprehensive law reform failed. With the exception of contracts of personal service, labour law and tenancy law, only small changes were imposed upon the original code. The changes in the society, and influences of other codifications that had entered into force after the Code civil, such as the Bürgerliches Gesetzbuch (BGB) and the Allgemeines Bürgerliches Gesetzbuch (ABGB), were however reflected in the jurisprudence of the Dutch courts. This resulted in a slow but steady separation of the law in practice and the written law as it was laid down by the BW. Therefore, in 1947 Eduard Maurits Meijers, a law professor from Leiden, was commissioned with the complete reform of the existing civil code.

Meijers was one of the most distinguished jurists of the Netherlands. His bibliography comprises more than 400 articles and 800 annotations. Next to private law, his interests lay mainly in the field of legal history. Early on in his career, Meijers had already busied himself with the reform of the BW. He could therefore rely on comprehensive comparative law studies and empirical data for his work. His mandate comprised the task of assessing the law in practice, systematizing the existing law, and adjusting it to the changes of society that had taken place in the meantime. Meijers’ draft for the new BW envisioned nine books: Book 1 Law of Persons and Family Law; Book 2 Company Law and the Law of Legal Persons; Book 3 General Part of the Patrimonial Law; Book 4 Succession; Book 5 Rights in Rem; Book 6 General Part of Law of Obligations; Book 7 Specific Contracts; Book 8 Law of Carriage; and Book 9 Intellectual Property. Additionally, the whole code was to be preceded by an introduction containing the most important principles of law. Meijers presented a complete draft for the first four books before he died in 1954, leaving only preliminary drafts and notes for the five subsequent books.

After his death, several law commissions tried to finish his work. The problems of coordinating the members of the various groups and ongoing debates over some disputed legal topics, eg in the field of the law of succession, led—along with the huge amount of work—to a considerable delay in the codification process. There was, however, a great demand for a law reform in some areas, eg family law. Thus it was decided that, instead of waiting for the whole code to be completed, its books should be promulgated in the order of their completion. The first part of the code, Book 1, entered into force in 1970; Books 2 and 8 followed in the years 1976 and 1991, respectively, and on 1 January 1992 the major part of the new civil code, Books 3, 5, 6 and 7 entered into force. The year 1992 is therefore, though slightly inaccurately, often referred to as the year of the new codification. Even though a considerable period of time had passed between the first drafts and their enactment, Books 3 and 5 are still based to a great extent on the draft of Meijers. The last Book that entered into force, so far, is Book 4 on 1 January 2003. Due to the fact that the area of intellectual property law has been regulated to a large extent on an international level, work on Book 9 was put on hold. However a Book 10, comprising the rules of private international law (PIL), has recently been adopted by the Dutch Parliament (see Staatsblad 2011, 272).

2. System and content of the new Burgerlijk Wetboek

Books 1, 2 and 5 through 8 partially kept the systematic structure of the old BW that had been adopted from the Code civil (persones—resactiones). Family law and the law of natural persons still form Book 1 of the BW. Company law, eg the law of legal persons, found its place in Book 2. Books 5 through 8 regulate the law of property and obligations. The procedural rules that formed the former Book 4 have, however, been deleted from the Burgerlijk Wetboek and are now exclusively regulated in the Wetboek van Burgerlijke Rechtsvordering (Code of Civil Procedure). The law of succession, formerly regulated as a part of the law of property, now forms Book 4. Book 3 introduces for the first time a general part of patrimonial law into the law of the Netherlands.

The BW now contains the entire substantive private law. Following the example of the Codice civile and the Swiss Civil Code (ZGB), there is no separation between commercial law and private law in general. The former Wetboek van Koophandel (Code of Commerce) was largely incorporated into the BW and, as was already mentioned, company law found its place in the BW as well. Along with the incorporation of commercial law, a concept of consumer law, comprising a body of special rules concerning transactions between businesses and consumers, has been established. The integrative concept of the Burgerlijk Wetboek also entails the incorporation of the EU directives in the field of private law into the BW. The directive on package travel (Dir 1990/314), for example, formed the basis of Arts 7:500 ff. Directives that entered into force after the enactment of the BW have also been integrated into the BW, eg the directive on unfair terms (Dir 1993/13) in Arts 6:231 ff BW, the directive on the sale of consumer goods (Dir 1999/44) in Arts 7:6 ff BW and the directive on misleading advertising (Dir 2006/114) in Arts 6:194-196 BW.

With the new Burgerlijk Wetboek, the importance of sweeping general clauses has risen significantly. One prominent example is the extension of the principle of good faith (redelijkheid en billigheid) throughout the whole code, eg in Arts 3:12, 3:13, 6:2, 6:238, 6:216 BW. The principle of good faith has to be respected in the process of forming a contract as well as in the course of its interpretation and supplementation. The principle of good faith also serves a restrictive function, and it allows the judge even to deviate from mandatory legal rules if this is necessary in order to achieve a just result. The scope of the notion of good faith has expanded from the law of contracts to all other fields of law, such as family law. The discretionary power of the judge has also been extended to other areas. According to Arts 3:53, 54 and Art 6:230 BW, he can limit the consequences of avoidance (Art 3:53(2)), and Art 6:109 BW allows him to reduce the amount of damages.

The law of delict (law of torts/delict) has also undergone important changes, giving priority to the interests of the injured party. Next to a general clause on fault-based liability far-reaching rules on strict liability can be found, covering liability for certain types of persons (children, auxiliaries and agents) as well as for objects (faulty or dangerous objects, animals, mines or waste disposal locations). The tortfeasor on the other hand is referred to the availability of liability insurance.

Another important feature of the new civil code is the protection of the interests of (third) parties acting in good faith. In comparison with the BW of 1838, the protection of the purchaser of goods from a non-owner has been extended considerably, see Art 3:86 BW. The possibilities for the avoidance of declarations of intention for mistake, on the other hand, have been narrowed.

Other new features of the new Burgerlijk Wetboek include the introduction of a general doctrine of unjustified enrichment, which had hitherto been unknown to Dutch private law, and the introduction of management of another’s affairs without a mandate (negotiorum gestio).

3. The Books of the Burgerlijk Wetboek in detail

Book 1, containing provisions concerning the law of persons and family law, has already been amended several times since its original enactment in order to meet changes in society. Those amendments have also taken into account the decisions of the European Court of Human Rights (ECtHR), which has been particularly active in the field of family law in recent years. The rights of illegitimate children as well as those of women have been strengthened. The Netherlands were one of the first countries to introduce the possibility of a registered partnership for homosexual as well as heterosexual couples. Since 2001, marriage is also open to homosexual couples. Book 2 contains general provisions concerning the law of legal persons and corporate law in general, as well as provisions concerning the different forms of legal entities: associations, cooperatives and mutual insurance societies, companies limited by shares, private companies with limited liability and foundations.

With Book 3, a general part on patrimonial law has been introduced into the Burgerlijk Wetboek. It comprises general provisions concerning legal transactions, representation, and on the enforcement of rights. Book 3 also regulates the acquisition and loss of property, possession and detention, fiduciary administration of the property of another, usufruct, and rights of pledge and mortgage. These provisions are applicable irrespective of the type of property involved. They apply to physical objects as well as to rights. Book 5 addresses rights in rem. It contains provisions which exclusively deal with physical objects (movable and immovable property), such as apartment rights, rights of neighbouring properties, easements, leasehold and the right of superficies.

The law of succession was not only moved to a separate book, Book 4, it also underwent considerable changes, especially concerning the rules of intestate succession. The rights of the surviving spouse were considerably enlarged. In line with the continental legal tradition, the BW still recognizes a compulsory portion for disinherited children but their rights have been reduced from forced heirship to a mere monetary claim.

Book 6 contains a general part of the law of obligations, there we find, inter alia, the rules on formation of contracts, standard contract terms, performance of contracts, the law of delict, unjust enrichment and negotiorum gestio. The law of specific contracts is laid down in Book 7. Since not all types of contracts have been reformed yet, Book 7A still contains the provisions of the old code, eg on instalment sales, partnerships, loans for use and for consumables, vested or perpetual annuities, and contracts of chance.

In line with the concept of a uniform code, the law of carriage has been removed from the Wetboek van Koophandel to form the new Book 8 of the BW. To a large extent, its provisions implement international treaties in that field.

The new Book 10 will for the first time contain a comprehensive codification of the rules on private international law. Thus far, Dutch private international law is governed by a variety of statutes, international conventions and decisions of the High Court. Book 10 comprises 15 chapters, providing for a general part and the private international law of names, marriage, registered partnership, parentage, adoption and other areas of family law as well as the law of corporations, agency, property law, trust, succession, the law of (contractual and non-contractual) obligations, and maritime and air transport law.

4. The Burgerlijk Wetboek in the context of the European private law codifications

The BW that entered into force in 1838 was to a large extent just a translation of the Code civil. The draft Nicolai, after all, which had formed its basis, had copied many parts of the French Code civil. Consequently, the Dutch jurisprudence of the 19th century also stood in the tradition of the French law. In some areas, the rules were even more strictly interpreted than in the mother country, France. While, for example, Art 1384 under French law evolved into a general clause of strict liability, its counterpart in the BW did not undergo this transition. The same is true concerning the law of unjustified enrichment. While in France a general doctrine of unjustified enrichment was developed by the courts, Dutch jurisprudence remained reluctant to follow suit. In spite of some differences of the BW and the Code civil, especially in the areas of family law and the law of succession that had their roots in the oud-vaderlands recht, the private law of the Netherlands was therefore part and parcel of the French legal family.

However, as early as the later 19th century, influences from other legal systems grew stronger. The new codifications in Germany (BGB) and Switzerland (ZGB) met with interest in Dutch jurisprudence. From the beginning of the 20th century onwards, one can clearly distinguish a growing influence of German jurisprudence in the judgments of Dutch courts. This is especially true for the law of delict where, eg, the German notion of the ‘protective scope’ (Normzwecklehre) was received. Article 2014 BW was developed, under German influence (§ 932 BGB), into a general rule of acquisition in good faith. The new BW codified these developments (eg Art 6:163 BW). Meijers’ preliminary works were also heavily influenced by German jurisprudence, especially pandectism, ie 19th century private law scholarship based on Roman law. Looking at Meijers’ comparative studies that formed the basis for his drafts, one finds more references to German and Swiss law than to French or Italian law.

The influence of pandectism and German law also becomes visible in the scheme of the new BW. For the general part of patrimonial law in Book 3 can be traced back to the general part of the BGB. Although Book 3 is limited to patrimonial rights and does not relate to family law and the law of succession, as it does under the BGB, reference provisions (schakelbepalingen) do extend the scope of many of its rules (eg on representation, mistake and prescription) to other areas of law. This technique is also employed in the Swiss ZGB (Art 7), Art 1324 Codice civile and § 876 ABGB. Another prominent example of German law that has found its way into the BW is the law of standard contract terms which has been copied almost word for word from the former German Act on standard contract terms (AGBG).

While Dutch private law, in principle, still remains in the tradition of the continental civilian systems, there are also traces of an influence of the Anglo-American common law. Thus, the new code leaves considerable room to judicial discretion which is also, however, in line with the developments in Dutch case law since the beginning of the 20th century. In the law of mistake we find some influence of the English doctrines of undue influence (Art 3:44 BW) and misrepresentation (Art 6:228 BW). The notion of anticipatory breach has also been received (Art 6:80 BW), and the provisions on vicarious liability have much in common with their English equivalent.

Finally, the Burgerlijk Wetboek has also taken account of developments in recent European and international harmonization projects. The new law of sales, for example, has been modelled after the United Nations Convention on Contracts for the International Sale of Goods (CISG).

The Burgerlijk Wetboek has therefore clearly parted from its French roots. It can, however, not be ascribed to another of the traditional families of law. A great amount of German legal doctrines has found its way into the BW, yet many notions of other legal systems, and of international unification projects, have been adopted as well. Last but not least, the separation from the French system is not complete. The French roots are still clearly discernible.

The Burgerlijk Wetboek has therefore been described as a manifestation of a new European ius commune. It is a unique codification, resulting from comprehensive comparative research and the adoption of the ‘best’ law from many different legal systems. The extensive debate over the many different legal doctrines available has resulted in one of the most modern codifications of Europe. The BW has therefore, in turn, already become a model for unification projects on a European level (European Civil Code) and for other codifications. Thanks to Dutch advisers, the Burgerlijk Wetboek has had a considerable influence on the new Russian Civil Code and the model code of the Commonwealth of Independent States (CIS).

Literature

EM Meijers, ‘Wijzingen en aanvullingen van het Burgerlijk Wetboek na 1838’ in Paul Scholten (ed), Gedenkboek Burgerlijk Wetboek, 1838–1938 (1938); Ewoud Hondius, ‘Das neue Niederländische Zivilgesetzbuch—Allgemeiner Teil’ (1991) 191 AcP 378; JMB Vranken, ‘Einführung in das neue Niederländische Schuldrecht, Teil I und II’ (1991) 191 AcP 396; Arthur S Hartkamp, ‘Das neue niederländische Bürgerliche Gesetzbuch aus europäischer Sicht’ (1993) 57 RabelsZ 664; Ulrich Drobnig, ‘Das neue niederländische Gesetzbuch aus vergleichender und deutscher Sicht’ (1993) 1 ERPL 171; Denis Tallon, ‘The New Dutch Civil Code in a Comparative Perspective—A French View-point’ (1993) 1 ERPL 189; B Wessels, ‘Civil Code Revision in the Netherlands: System, Contents and Future’ [1994] NILR 163; Gerard-René de Groot, ‘Entwicklungen im niederländischen Zivilrecht seit 1992’ (1998) 6 ZEuP 543; Martijn W Hesselink, ‘The Ideal of Codification and the Dynamics of Europeanisation—The Dutch Experience’ (2006) 12 ELJ 279; Jeroen MJ Chorus (ed), Introduction to Dutch Law (2006); Hans Warendorf, Richard Thomas and Ian Curry-Sumner, The Civil Code of the Netherlands (2009).

Retrieved from Burgerlijk Wetboek (BW) – Max-EuP 2012 on 19 May 2022.

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