Dutch Civil Code (DCC)
The private law of the Netherlands is founded on Roman law, as codified in the Corpus Iuris Civilis of Justinian, and also on the Code Napoléon, the French Civil Code, that applied during the French predominance of the Netherlands from 1795 up to 1813. When the Netherlands, after annexation (1 January 1811), became a part of the French Empire, the Code Napoléon, enacted in 1804, was automatically introduced in the Netherlands as its own Civil Code.
After the French left, the Code Napoléon kept its influence. The first Dutch Civil Code (‘Burgerlijk Wetboek’), formed in 1838, was based on French civil law, but also on Roman-Dutch law, that ruled before the French occupation. So this Civil Code was not merely a translation of the Code Napoléon, as sometimes is understood. Some French rules were removed. Former Roman-Dutch law was inserted instead of the French rules or added to the Dutch Civil Code. Property provisions were arranged around the principle of a direct 'right' in property and the required publication of property titles. This lead to significant differences between the French and Dutch Civil Code. Unlike the French Civil Code, the first Dutch Civil Code, for instance, drew a strict line between real property rights (rights in rem) and property rights that could only be enforced against one specific person (rights in personam). While in the French Civil Code the registration of a transfer deed in a public register was just one of the possibilities for the passage of ownership, the first Dutch Civil Code stated, in line with the Roman-Dutch legal tradition that ruled prior to the French occupation, that such a registration was a precondition for the transfer of ownership. But, despite these differences, the influence of the French and Roman law always remained.
Over the next century the Dutch Civil Code of 1838 has been modified and amended frequently. To make it more up to date and in line with later developments in law a modernisation was proclaimed in 1947. In 1992 a new Dutch Civil Code was introduced, which was largely influenced by the German Civil Code (Bürgerliches Gesetzbuch or BGB). The distinction between civil law and commercial law has been abandoned in this new Dutch Civil Code in favour of a broader range of private law. Legal subjects which had come about after the middle ages and were regulated in a separate statute book – the Commercial Code (‘Wetboek van Koophandel; ), such as corporate law, financial law, insurance law, transport law -, are now incorporated in the new Dutch Civil Code itself. The same applies to other contemporary areas of civil law, such as consumer law and labour law.
The current Dutch Civil Code (‘Burgerlijk Wetboek’) is a fairly modern Act of Parliament, in force as of 1992. It contains more than 3500 Articles, divided over the following eight Books:
Book 1: The Law of Natural Persons and Family Law Book 2: The Law of Legal Persons Book 3: Property Law in General Book 4: Law of Succession Book 5: Real Property Rights Book 6: The law of Obligations and Contracts Book 7: Particular Agreements Book 8: The Law of Carriage and Means of Transportation
Initially the plan was to make new codifications as well with regard to the law of intellectual property and international private law (in Book 9 and Book 10 DCC, respectively). Although not yet official, this plan is abandoned, because these subjects are primarily governed by international conventions and European Regulations.
A main feature of the present Dutch Civil Code is its so-called laminated structure between its eight Books. The rules of a more earlier placed Book, for instance Book 3, always apply as well to subjects which are regulated in a later placed Book, for instance in Book 6, but only as far as that latter Book doesn’t provide a more detailed rule for the subject in question. If a later placed Book entails its own rule for a subject, then solely this rule applies to it. It sets, as far as it concerns this specific subject, the more general rule of an earlier placed Book aside.
Book 7 DCC, for example, contains special rules for sale contracts. A sale contract is a juridical act of a certain type. It's also a mutual agreement, but with a specific nature and content. Because an agreement, like a sale contract, is a juridical act, the rules of Book 3 DCC, which regulate juridical acts in general, apply to a sale contract. Since this contract is also a certain type of agreement, the rules of Book 6 DCC apply as well to it. Book 6 DCC contains rules which are more related in particular to juridical acts which have the characteristics of an agreement. If there’s a conflict between the more general rules for juridical acts of Book 3 DCC and the more particular rules for agreements of Book 6 DCC, then these last rules precede. In Book 7 DCC some agreements, which are frequently used in practice, are regulated separately, among which the contract of sale. The rules of Book 7 DCC have for this reason also meaning for this type of contract and put, as a more particular statutory provision, the more general rules of Book 3 and Book 6 DCC aside, but only when they regulate the same topic more detailed. Therefore, at first, always the most general rule must be looked for (rules of Book 3 DCC). Then, it must be examined if a more particular rule is incorporated in one of the later placed Books of the Dutch Civil Code that could apply as well. In case of a contract these rules are to be found in Book 6 DCC. If it’s appropriate, this more particular rule affects the situation, whereas the remaining part of that agreement is still governed by the more general provisions of Book 3 DCC. The same method has to be followed with regard to other even more detailed provisions, like those laid down in Book 7 DCC. If such a provision covers the subject as well, it will be decisive for that particular part of the involved agreement. This way of thinking is implanted in the composition of the Dutch Civil Code and is called a ‘laminated structure’.
Note that every separate Book of the Dutch Civil Code – in sum eight - starts with its own Article 1. So the first provision of Book 1 DCC (Law of Persons and Family Law) is Article 1 and the first provision of Book 2 DCC (Law of Legal Persons) is also numbered as Article 1 etc. To indicate the Book in which the Article is placed, the number of this Book is positioned directly in front of the number of the Article. Both numbers are separated by a colon and followed by the abbreviation of the Dutch Civil Code (BW or, in English, DCC). So Article 1 of Book 1 is written as Article 1:1 DCC and Article 1 of Book 6 is called Article 6:1 DCC and so on. By looking at the first number of the indication of an Article the relevant Book will be known.
Standards of reasonableness and fairness in Dutch civil law
Although today also other opinions can be heard at university, Dutch law students were thought for decades that it was wrong to stick to the textual meaning of a statutory provision, since it was much more important that the law at all times should produce a fair and reasonable outcome. The new Dutch Civil Code is largely a reflection of this idea. The concept of ‘good faith’ leaks, as a result, into all branches of Dutch civil law, and especially into the law of obligations and contracts. The first Article of Book 6 BW (Law of Obligations and Contracts) already states that all parties to an obligation must behave within their relationship to each other according to what is reasonable and fair (Article 6:1 DCC). The first Article of Section 6.5.4 DCC (Legal Effects of Contracts) again specifies that the relationship between parties to an agreement is governed as well by the principles of reasonableness and fairness (Article 6:248 DCC).
With the words 'reasonableness and fairness’ (‘redelijkheid en billijkheid’) Dutch law refers to the principle of bona fides or good faith, in so far it concerns the duty to observe reasonable social and commercial standards of normal and fair dealing (the term good faith can also indicate what a person reasonably, in the given circumstances, ought to have known about a certain fact; this is called ‘goede trouw’, which literarily can be translated as ‘good faith’).
The principle of reasonableness and fairness has three functions.
In the first place, all contracts must be interpreted according to the principle of reasonableness and fairness in order to determine the meaning of a certain clause or contractual provision. Not its literally meaning, according to the text of the contract, is decisive, but the intention which parties, given all circumstances, reasonably must have had when they came to an agreement.
Secondly, Article 6:248 (1) DCC specifies that contracts not only have the legal effects expressly agreed upon by parties, but also those which, according to the nature of the contract, result from legislation, common practice (usage) or the standards of reasonableness and fairness. In a contract, of course, not all possible problems and questions can be written down. As far as a contract doesn't provide an answer to a specific question, the gap must be filled with a solution given by a rule of permissive law. These additional rules of law only apply insofar parties themselves haven't made an arrangement for a specific subject in their agreement themselves. Needless to say that a contractual provision cannot derogate from a mandatory rule of law. If a contractual provision clashes with such a rule, then it has no meaning at all. The relationship between the parties to the contract will then be governed by the content of the mandatory rule of law. When neither a contractual provision nor a statutory provision (of permissive or mandatory law) gives an answer to a legal question, one should find a solution in accordance with common practice (‘usage’) or with what would be reasonable and fair in the circumstances. The effect of ‘reasonableness and fairness’ in that case is supplementary.
But in the third place the standards of reasonableness and fairness have a ‘derogating’ or ‘restrictive’ effect too. Article 6:248 (2) DCC stipulates that an in itself binding contractual or statutory provision nevertheless doesn’t apply to the extent that this would, given the circumstances, be unacceptable according to standards of reasonableness and fairness. This means that a normally perfect working contractual provision or an additional statutory provision of permissive law can (and must) be set aside when its applicability unexpectedly would lead to unacceptable consequences for one of the parties. It should be noted that even rules of mandatory law may, in a specific situation, produce such an unreasonable outcome that, according to the principle of reasonableness and fairness, it has to be replaced by another solution. Of course, this will happen less frequently than in relation to contractual provisions and permissive law, since mandatory law is an expression of the explicit intention of the legislator to create a sure legal outcome on behalf of a specific group of persons (employee, tenant, consumer), and this in theory always, irrespective of the circumstances. In other words: this legal effect is in advance regarded as the best solution for this specific situation. Therefore, it is put forward by law as the absolute binding outcome, usually to protect one of the involved weaker parties or the society as a whole. Yet, the standards of reasonableness and fairness may order differently and demand that the outcome of this mandatory rule has to be disregarded and replaced.
Criticism on the current Dutch Civil Code
As Sir Francis Bacon already said:
'Certainty is so essential to a law that a law without it cannot be just. A law ought to give warning before it strikes, and it is a true maxim that the best laws leave least to the breast of the judge' (Letters and life of Bacon, Spedding, 1869).
This basic principle still applies today.
‘Legal rules guide people's actions and judges' decisions. Legal norms prescribe particular outcomes when generally described states of fact are present. While legal rules cannot always be precise and definite, and while they cannot always exclude judgment and discretion in their application and enforcement, they can always state who may invoke them, who may apply them, and what the consequences of application may be’ (Maxeiner James R., Houston Journal of International Law • Fall, 2008).
An essential disadvantage of the present Dutch Civil Code is, however, that it seems to give too much discretion to the courts. This undermines certainty and uniformity, both a key aim of codification. Yet, this result was an aware choice of the legislature. The court should always determine whether the legal outcome, as prescribed by contract or law, is reasonable and fair in a specific case, given all circumstances. The law should be flexible as well, so that it is able to solve any legal problem. The earlier mentioned statutory provisions, Article 6:2 and 6:248 DCC, merely are an expression of this concept. But statutory provisions like Article 6:2 or 6:248 DCC, that directly refer to the standards of reasonableness and fairness, aren’t the real problem. Everyone agrees that where the outcome of a contract or a statutory provision would have unexpected and unacceptable consequences for one of the involved parties, the court must, in exceptional situations, have the opportunity to replace it with a more fair result. The real problem is that many statutory provisions of the Civil Code, that intend to solve a matter in detail, themselves are so open and vague that the judge simply has to return to is own intuition in order to make a judgement. Even though the Civil Code contains 3500 detailed statutory provisions, these rules often provide no solution at all, because they refer directly to ‘the wellbeing of the child’, ‘the assumption of a party’, ‘what a party ought to have known in the circumstances’, ‘what the opposite party objectively might have thought’, ‘the general principles of society’ and so on. This means that, in the end, the ruling judge has to decide on the basis of his own gut feeling. This is especially troublesome where a statutory provision forces the judge to make several halfway decisions on the basis of discretion (or reasonableness and fairness) in order to be able to make it work. Of course, this ensures that the law is flexible, so that it can be applied in virtually all situations. But in fact it leads to judgments of which no one can make head or tail, so in truth there appears to be no law at all.
An example of this problem is offered by Article 6:228 DCC, that provides rules to determine whether an agreement is voidable because of a fundamental mistake of one of the parties at the moment that he entered into the agreement. Taken into account the relevant circumstances the judge first has to establish if there has been a mistake with regard to applicable facts or rights and, if this appears to be the case, if the agreement has come about under the influence of this mistake and, if so, if the mistaken party would have entered into this agreement under the same conditions if he would have had a correct view of the situation. It’s not so hard to conclude if the involved party was mistaken. But it is a lot harder to determine if the agreement was concluded under the influence of this mistake. And it gets even more difficult to find out if the mistaken party would have entered into this agreement if he had known better. Who will say? Of course the mistaken party will implicate fiercely that he wouldn’t have accepted this agreement if he hadn’t been mistaken, while the opposite party will always claim the contrary. So the judge has to decide largely on the basis of his own feelings of the situation if there has been a mistake that might lead to a voidable agreement.
But it gets even more complicated. The claim of the mistaken party that the agreement is voidable because he acted under the influence of a fundamental mistake may only be awarded:
a. if the mistake is caused by information of the opposite party, unless this party could assume that the agreement would also be entered into without this information, or; b. if the opposite party, in view of what he knew or ought to have known about this mistake, should have informed the mistaken party about his error, or; c. if the opposite party, at the moment that the agreement was concluded, had the same incorrect presumption as the mistaken party, unless he could assume that the mistaken party, if this party had known the mistake, still would have entered into the agreement.
Because these rules are so fuzzy, case law has developed other criteria to determine whether one of these conditions is fulfilled. Both parties are regarded to have specific duties towards each other under the standards of reasonableness and fairness. The opposite party has a duty to inform the other party of certain important facts or rights if he knows or ought to have known that these are important for the other party to make up his mind. But on the other hand the mistaken party has a duty as well, namely to investigate if the facts and rights, which are so important to him, are actually present. In practice, however, this rule of interpretation still means that the judge has to decide on the basis of good judgment and gut feeling. There is no way to tell in advance what the outcome of his thoughts and feelings will be. And finally, when the judge has come to the concluding observation that the appeal to a fundamental mistake is, given all circumstances, reasonable, he still has to ask himself if the mistake, in view of the nature of the agreement, common opinion or the actual circumstances, should not be for account of the mistaken party anyway (Art. 6:228 (2) DCC). So again, he has to return to his own feelings about the case and facts as a whole. This is too much. It’s impossible for laymen and lawyers to assess whether a legal claim might be awarded on this legal grounds, also because it is clear that one judge will appreciate the relevant circumstances totally different than the other.
From the parliamentary history of the Dutch Civil Code it becomes clear that it was the intention that the court only should move away from contract or relevant statutory provisions by means of a last resort, thus only when its result was indeed unacceptable. The assumption was that de court, in each case, first would determine which legal rules apply in conformity with the legal system as codified in the Dutch Civil Code. After that, the court should base its judgment on these rules. Only when the outcome was more than proportionally disadvantageous for one of the parties, the court could examine if the standards of reasonableness and fairness perhaps would prescribe another result. But the legislator had forgotten that even before the court reaches this point, it has to make a lot of decisions at random. Because many statutory provisions of the Civil Code are to open and vague, the courts have clang to the idea that the outcome of each specific case must, above all, be fair and just. This has led more then occasionally to a reversed working method of courts. Although not in line with legal methods, the judge simply looks at the presented facts as a whole and, overlooking the entire picture, decides for himself which outcome he considers to be the most fair in this case, without considering any legal rules. After that, he works explicitly towards that outcome, ignoring all contractual and legal rules standing in his way. When that’s not possible, for instance when a specific statutory rule clearly points out another result, he uses certain tricks to avoid the unwanted effect. Within this framework it doesn’t help that a Dutch court is also free in appreciating the introduced proof, in the sense that procedural rules regarding evidence are often applied freely. In this way the court is able to acknowledge or deny a proof as legal evidence almost as it pleases. This offers the court the opportunity to surpass a very clear contractual condition or statutory provision without openly offending the law. It just simply states that the concerning party has not proved the facts which are necessary to be able to apply the rule to which he appeals or that the other party has proven his statement, which is contradictory to the applying statutory provision or contract. This effect can be reached also by a decision that the other party has proven his position because the counterparty, at least in the opinion of the ruling judge, did not dispute the statements of the other party enough or not convincingly. In this way complete works of counter-evidence are dropped in the waste-paper basket, and thus ignored, because they undermine the wanted result, and this without, at least in theory, violating any material rule of law. And of course, the outcome which the court wanted from the start, then always pops out at the end. In some cases the urge to get the wanted result is so severe that the court even gives a judgment that isn’t based on any statement of the parties at. The judge creates, between the lines, his own facts and legal statements to help one of the parties to reach his goal, although he knows that he is not allowed to do so. There are a lot of judgments from which shows that the law is merely used as an alibi to justify the wanted result.
Although the Dutch Supreme Court (‘Hoge Raad’) repeatedly has proclaimed that this working method is not in line with the law, the lower courts keep making the same mistake over and over again, deliberately, because they think (or feel) it’s their responsibility to give a reasonable and fair judgement of their own. And, it’s true, sometimes, they have no other option. The statutory provisions themselves force them to make a decision of which the outcome largely depends on the moral and legal appreciation of the facts presented to them.
Why is this so terribly wrong? Because it breaks down the entire legal system of civil law, particularly the legal method of how to approach and solve a legal problem on which lawyers and also the people may depend. What remains is an overall uncertainty concerning the outcome of a dispute, since this is totally depending on the sense of justice of the judge who coincidentally is in session. In fact, this would mean that there’s not just one civil law, applying to everyone, but there are as many civil law systems as there are judges. And it’s impossible to know all these individual systems, also because there is no way to study and comment them structurally. The main problem is, of course, that a judge isn’t capable of determining all relevant facts, which is necessary if he wants to base a judgment solely on what he regards as reasonable and fair. A lot of facts, which should be known in order to conclude if something is just and fair in the normal sense of the word, aren’t mentioned or felt in court, while others are overexposed and therefore look more important then they actually were. It’s impossible to recreate the real world in a court room. So judges shouldn’t try to do so. Or to put it more properly: they should not be forced to do so, since the result of this working method is always a fairy tale. A judge may think that he can oversee the whole picture, or at least that he’s aware of the most relevant facts, so that he is in a position to decide what is right and fair, but that’s a dangerous illusion. And even when this would be possible, all judges have their own personal experiences and qualities, so they will interpret the same facts differently. While one judge thinks a certain solution is fair and just in the circumstances, the other one feels quiet the opposite. So a decision based purely on what the ruling judge himself finds reasonable and fair, isn’t more reasonable and fair then a decision made by flipping a coin.
Despite the efforts of the Dutch Supreme Court to reverse the earlier mentioned development at lower courts, starting a civil procedure in the Netherlands nowadays can indeed be a Russian roulette. This has created a serious problem in Dutch law, although still not everybody agrees. Some Dutch scholars still believe that judges are skilled to interpret all relevant facts in such a way that indeed always a fair and just outcome can be reached within the open framework of the Dutch Civil Code. But it’s clear that they haven’t seen a courtroom in a long time and that they lay more emphasis on how it theoretically should be than on the practical impact of their conceptions, which is a total loss of legal certainty and a flood of random judgments. Fortunately, the Dutch Supreme Court tries to stop this flood as much as possible. But its decrees can’t change the juridical facts which deliberately were established by a lower court to get the result it aimed for. And, of course, an individual case is only presented to the Dutch Supreme Court after many years of litigation. Not all citizens can produce this much patience nor the necessary financial means that go with it.
Is this legal uncertainty and fragmentation of Dutch civil law, which has expressed itself in simply random judgments, the fault of the Dutch Civil Code? Partially it is. As said before, many provisions of the Civil Code are to open and vague to apply them properly as a rule of law. They force the judge to make a decision purely based on his gut feeling. But partially it is also the fault of the judges themselves. It seems as if they have released themselves from any legal chains imposed upon them by the Civil Code and the decrees of the Supreme Court. Everything is possible as long as the outcome is just and fair, at least in their own opinion. The following quotation, taken from the official Internet site of the central institution of the Dutch courts ‘Rechtspraak.nl’ as it was presented still on 30-03-2009), immediately makes clear how Dutch judges feel about civil law.
“Large field of law Civil law covers a very large field. In theory, it is fairly clear where this law can be found, but because of its enormous scope, it is often difficult for a lawyer to determine whether he has studied all the relevant provisions, judgments and commentaries to be able to plead a case well. The same applies to the courts when it comes to handing down the right judgment. Even if it is more or less certain it has searched out all the relevant texts, it is usually still impossible to infer a solution from them immediately to the concrete case on which the court has to decide. Even the present scope of civil law does not cover all the problems that can occur in society. In this case, the civil court - perhaps at the instigation of the lawyers representing the parties involved - will have to think of a solution itself on the basis of everything it has heard and what it has read about the matter. So, a citizen who initiates legal proceedings will often not know in advance what the decision of the court will be.” (Centrale redactie rechtspraak.nl, published on 08-02-2004).
Although the effects of the earlier described attitude of the courts are pointed out well in the last sentence of this quote, the real reason for this approach is not mentioned at all. The statement of the courts that civil law contains to many provisions to be able to apply it, is in itself of course outrageous. Why did we even bother to make a new Civil Code for over forty years if this would be true? That it is hard to find all relevant statutory provisions isn’t correct either. In fact this is quiet simple, since the structure of the Civil Code is easily arranged, while case law is well documented and also extensively commented. Indeed it is a problem that a lot of these statutory provisions do not bring a solution and, deliberately, leave it up to the ruling judge to decide on the basis of his own personal instincts. But this cannot conceal that judges themselves find it very convenient to have an almost unlimited discretion.
Why so many judges refuse to apply the law correctly, is hard to say. Probably the job rotation system, as applied by the courts, plays a part in it. The aim of this system is to have judges with sound visions of sentiments in society. So the emphasis is laid on general knowledge, rather than specialized legal expertise. In this job rotation system judges are transferred after four years (for specialized judges after six years) to a totally different field of law. A lot of legal expertise is lost this way. Whereas a judge usually has to face up with solicitors who have spend their whole carrier studying just this specific issue of civil law, he misses sufficient legal knowledge for the case he has to consider, so that it becomes very tempting for him to escape to other instruments to stay in control, like an unsystematic assessment of the relevant facts and a ‘well developed’ gut feeling, justified by the thought that a fair and just outcome is the highest principle anyhow. But that’s no way to approach and apply the law. In the end it will demoralize not only lawyers, but, more important, also their clients and, with that, all citizens who’ll no longer have faith in this legal system.
It is difficult to say how this problem should be tackled. Rewriting the Civil Code to make it less open and vague would be an option for the long term. Many new legislation has to be incorporated in the Dutch Civil Code on the basis of European Regulations and European Conventions. These newly incorporated parts of the Dutch Civil Code are less open and vague and provide more detailed guidelines. So in the end, under influence of European legislation, the Dutch Civil Code will transform itself in the right direction. Meanwhile the decrees of the Dutch Supreme Court should fill up the existing gaps sufficiently. But probably a solution can be found elsewhere too.
A first step to stop this flood of random judgments could be the institution of specialized sections at the District Courts. Now only a distinction is made between family law on the one hand and virtually all other civil matters on the other, with special powers for the Subdistrict Courts where it concerns matters related to employment and lease agreements. But this is to widespread. A lot of other legal subjects require special legal skills and specific legal expertise. The objective to have judges in court with a broad general knowledge, so that they keep in touch with society, is no longer defendable in a world that changes almost every day and that becomes more complex and internationally connected each minute, especially in law. These developments bring along the need for the best legal knowledge of, for instance, financial markets, stocks and securities, insurances, legal persons and commercial partnerships, inheritances, commercial agreements, franchising, intellectual property, takeovers, sales of businesses and certain assets, consumer contracts, traffic accidents, environmental issues, European legislation, international jurisdiction, international trade agreements and so on. National and international governments continuously enact new legislation for various kinds of matters. Almost every detail is captured in Acts and by-laws. They nevertheless expect of the public to comply with it. And the public tries to do so, although they are only able to apply and interpret these rules with the help of specialized and expensive lawyers. But then the public may expect as well that the court observes the same rules in the way as intended by the legislator. The thought that a judge with no or hardly any experience on these matters may give a respectable and well founded judgment on it anyway, can no longer be upheld. If the Netherlands take the law seriously, it is not enough to rely on the gut feeling of just any judge in session, since in the end this will lead to what the courts always have wanted to prevent: a drifting apart from public. Where solicitors have specialized themselves more and more in specific areas of civil law, the courts cannot stay behind, simply relying on their good judgment and instincts based on a general knowledge of the law.
The institution of specialized court sections (and preferably different rules of procedure for different kind of lawsuits) is, of course, not the exclusive answer. In addition, these sections must return to the starting point regarding the role of judges within a legal system and the way how to apply rules of law. Nothing more, nothing less. The question which rules apply, must, in conformity with the Code, be answered firstly by mandatory law, secondly by contract and thirdly, when the contract doesn’t respond, by permissive additional law. Obviously, when there’s still no answer, the judge may look at what customary practice has to say about it and also what is reasonable and fair in the circumstances. And no one will argue that, when the outcome of all these rules is clearly unexpected and extremely unfair for one of the parties, and therefore unwanted and unacceptable, the principle of reasonableness and fairness must create an escape, even when this is not consistent with the legal system as a whole. The Dutch Civil Code does so. It also provides numerous provisions which can be applied in accordance with their textual meaning. There’s no need to rule these provisions out, simply because a judge thinks that he has a better personal view on the matter.
As far as the more open and vague statutory provisions of the Dutch Civil Code are concerned, a different approach of the courts may already remove the most grievances. And again, this renewed approach is in line with how it was intended from the beginning. No Code or Statute can regulate every possible situation in a straight line. Therefore a certain discretion has to be granted to courts. Discretion also keeps the Civil Code flexible. But the fact that not every situation can be covered in detail by a statutory provision may never be an alibi to ignore the law or the legal principles on which it is founded, merely because this seems practical, given also that, at the background, always other and even more important interests are involved too. Therefore, judges should use their discretion properly and with care. Unfortunately they do not. The courts should return to a systematic approach of the law, also in applying open and vague statutory provisions. In interpreting such rules the courts must restrain themselves and, where appropriate, fall back on the guidelines provided for by the Dutch Supreme Court. Naturally, the circumstances in a specific case will not entirely be the same as the circumstances in the case for which the Supreme Court has issued these guidelines. But only serious differences should allow the courts to deviate from the predictable rules set by law (Civil Code and the Supreme Court), while at all times the principle thought behind this rule must be considered.
But how can the courts be moved to follow another guiding principle? First of all the courts themselves should become fully alive to the effects of their views and the importance of legal certainty in order to maintain a trustworthy legal system. Although the objective to give fair and right judgments at all times is honourable, the consequence of the present attitude in the long run is legal uncertainty and, with that, an unwanted and irreversible deterioration of civil law. Slowly but surely Dutch legal scholars, like Prof. dr. M.W. Hesselink, Prof. mr. R.P.J.L. Tjittes and Prof. mr. A.S. Hartkamp, call attention to this problem. Regrettably, upon till now the courts have turned a deaf ear to their appeals.
Provided that judges themselves recognize the importance of a more systematic approach of law, it should not be so difficult to turn back to the principles of the Civil Code. Following the thoughts of Hayek on this point, the law as a system should become more important for judges during the process of making judgments. A more modest approach is appropriate, since the legitimate expectations of the people are best preserved by making legal rules internally consistent within a given set of rules (F.A. Hayek, Law, legislation and liberty: rules and order (1973), 115-119). Judges should admit that they simply are not able to assess all facts and that a judgment, formed purely on the basis of their own instincts, doesn’t become fair and just simply because it was made with the best intentions.
To assure that Dutch courts in each specific case shall apply the law correctly, it will be necessary for them to substantiate their judgments more extensive and more clearly than they do currently, and also more in connection with the general excepted views of law as put down in the Civil Code and the case law of the Supreme Court. Usually each specific case can be unravelled in a few legal questions that have to be answered in order to reach a final judgement. The court should confirm for each of these questions that its answer is in accordance with the relevant provisions of the Civil Code and the guidelines of the Dutch Supreme Court. In other words: the judge should be compelled to formulate the general accepted legal views applying to each question, taking the appropriate provision of the Civil Code as a starting point and, if relevant, the applicable judgments and views of the Supreme Court. Subsequently, the judge should compare the facts of the case with these rules. This working method will guide him to a proper outcome and will enable lawyers and the public to obtain a clear insight into what they can expect from the court and whether starting proceedings is suitable or not. In the end, the people may even adjust their legal behaviour to this new legal approach and, as a result, this may lead to a reduced amount of court cases and less disturbances of business and private affairs. Of course, a judge, while answering a question, still might (have to) move away from a generally accepted legal rule, but at least he has to express why and how he came to this decision. Principally, a judge should always keep in mind that exceptional circumstances do not justify a deviation from general accepted legal views which make out the foundation of any legal system. Only exceptional outcomes do, and only when the result is so harsh for one of the involved parties that it cannot be accepted by standards of reasonableness and fairness, so that it’s understandable that statutory provisions must retrieve.
In this respect Dutch judges should take an example of their German colleagues, who still take the law seriously and (therefore) substantiate their judgements with utmost care. Especially since the Dutch Civil Code looks a lot like the German Civil Code and Europe is moving forward to a uniform European private law, it is not a bad idea to look abroad for advise.