Burgerlijk Wetboek

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The Burgerlijk Wetboek (or BW) is the Civil Code of the Netherlands. Early versions were largely based on the Napoleonic Code. The Dutch Civil Code was substantively reformed in 1992. The Code deals with the rights of private persons (Book 1), legal persons (Book 2), property (Book 3) and succession (Book 4). It also sets out real rights (e.g. ownership, possession, and security interests) (Book 5), obligations and contracts (Books 6-7) and on conflict of laws (Book 10). Proposed amendments will add a Book on intellectual property.

History[edit]

Before efforts at unification, almost every region and town in the Netherlands had its own law. Local Roman-Dutch law borrowed heavily from the civilian jus commune, particularly with respect to 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 drafted but never promulgated.[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 receive and enact the French Civil Code. A Committee was formed and, drawing heavily from the Napoleonic Code and some previous work, a Code - called the Wetboek Napoleon - was enacted by royal decree on 1 May 1809.[3] Roman-Dutch law was abolished except where specifically retained by the Code and in the Dutch colonies. However the 1809 enactment was short-lived. On 1 January 1811, the Netherlands was annexed by the French Empire and the Napoleonic Code was adopted in unmodified form.[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 enacted and promulgated by Parliament. It was a mix of influences—mainly French and Roman-Dutch. This code was adopted as the Burgerlijk Wetboek of 1838.[6]

The 1838 Code, French influence and Amendments[edit]

The 1838 Code entered into force on 1 October 1838. While it was substantially influenced by the Napoleonic Code, it did adopt some Roman-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 ownership.[7] Many differences in content also prevailed. On certain subjects, French law was either amended or repealed.[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 either culturally inappropriate or inconsistent with existing Dutch law principles. Second, modifications were made to codify prior existing Roman-Dutch law or give effect to Roman-Dutch legal standards. For example, in regard to property, the 1838 BW provided that registering a conveyance was a precondition to pass title in immovable property. This codified the Roman-Dutch abstract system of title transfer (abstracte stelsel van eigendomsoverdracht), thereby replacing the causal system (causale stelsel) of the French code. (Ibid, 233) However it remained true that the 1838 BW did draw much from the Napoleonic Code, 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 tasked Eduard Meijers with completely revising 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 the Code should be updated to reflect recent developments of private law.[8]

1992 Code Reform[edit]

Despite the initial scope of revision being 'technical reform', the 1992 BW enacted substantive modifications to both the prior Code and established case-law.[9] The technical focus of the revised code is borrowed from the German BGB. The distinction between civil law and commercial law was done away with and brought under the broader ambit of private law. The Code now covers all aspects of commercial regulation—company, insurance, transport, consumer, and labour laws. For example, the 1992 Code now specifically regulates commercial contracts (Book 6, art. 119a). An unjust enrichment action is available (Book 6, art. 212), as are rescissory actions for vitiated consent or an 'abuse of circumstances' (Book 6, art. 44(4)). More generally, requirements of good faith now appear to be a constant 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 areas 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. Throughout, the Code lays out a strict pattern of general rules upon which are built detailed ones. For example, tortious liability is founded on a general concept of an unlawful civil wrong. 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] The Code also loosens the legal positivism of the French system in favour of granting courts wider discretion in adjudicating cases. This discretion permits 'intermediate solutions' (i.e., not slavishly statutory) to complex problems.

Like most other foreign civil codes, rules of procedure and public law are codified separately from the 1992 Code.

Criticisms[edit]

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[edit]

The Dutch Civil Code is presently composed of some 3,000 articles and 9 books:


Book 1 Natural Persons and the Family

(Articles 1:1 - 1:462)

Book 2 Legal Persons

(Articles 2:1 - 2:455)

Book 3 Property in General

(Articles 3:1 - 3:326)

Book 4 Succession

(Articles 4:1 - 4:233)

Book 5 Real Rights

(Articles 5:1 - 5:147)

Book 6 Obligations

(Articles 6:1 - 6:279)

Book 7 Specific Contracts

(Articles 7:1 - 7:902)

Book 7A Specific Contracts (not yet renewed)

(Articles 7a:1576 - 7a:1828)

Book 8 Transport Law and Means of Transport

(Articles 8:1 - 8:1836)

Book 9 Intellectual Property 

(see other Acts)

Book 10 Conflict of Laws

(Articles 10:1 - 10:165)


Note: Book titles in italics are proposed additions to the Code that have not been incorporated as of 1 January 2013.

See also[edit]

References[edit]

  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 978-90-5454-432-6. 
  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 1-84113-591-7. 
  9. ^ Martin Hesselink (2006). The Harmonisation of European Contract Law. Hart Publishing. p. 40. ISBN 1-84113-591-7. 
  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. p. 41. ISBN 1-84113-591-7. 
  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.