Das neue niederländische bürgerliche Gesetzbuch aus vergleichender und deutscher Sicht

Abstract

Abstract. On January 1, 1992, the core part of the patrimonial law contained in the New Civil Code came into force in the Netherlands. With the exception of Book 4 on inheritance law and parts of Book 7 on certain specific types of contract, the task of reform aimed at creating a New Civil Code, which has lasted for decades, is now complete. The New Civil Code no longer makes a division between civil law and commercial law. It therefore also governs the most important institutions and contracts of commercial law: company law (Book 2) and the law of transport (Book 8) as well as commercial contracts (Book 7). Although it does not have a General Part in the style of the German code, the General Patrimonial Law is dealt with comprehensively in a separate Book (Book 3). In addition, the General Law of Obligations is also dealt with in detail in a separate Book (Book 6). The General Law of Obligations also includes important specific types of non-contractual obligations, such as management of the affairs of another, unjust enrichment and the law of tort. In contrast to the Civil Code of 1838 which was previously in force, which was greatly influenced by the French code civil, it is not so easy to point to the influences of a single foreign legal system upon the New Civil Code. Above all, it is the Romanistic law element which dominates, now as before; this applies, for instance, in the case of the law of tort and unjust enrichment. In the General Patrimonial Law, as well as in the law of contract, there are also many similarities to German law. The general clause concerned with ‘reasonableness and equity’ corresponds to the German principle of ‘Treu und Glauben’ (good faith); the provisions which govern the general conditions of business are closely related to the provisions of the relevant German law of 1976. Even the most recent German attempts to bring about a reform of the Law of Obligations have quite clearly been taken into account, such as the rule regarding the influence of changed circumstances and the rule governing recission of contracts. In sum the Dutch New Civil Code can be characterised as an original and mature codification, in which much independent thought, practical experience, and wide comparative research have been invested. As the newest European Codex for civil law, the Civil Code will also certainly exercise an influence upon the endeavours of the countries of Eastern and South-Eastern Europe who are seeking to adjust and build their civil and commercial laws so that they meet the demands of a free legal order based on a market economy.