Judicial Discretion under the New Civil Code of the Netherlands

Abstract

notably the law of obligations, was mainly derived from Roman Law, and it is a codified system of law. The first codification, dating from 1809, came into being by the order of King Louis Napoleon, brother of the Emperor. In 1811, after the incorporation of The Netherlands into the French Empire, it was replaced by the Code Napoleon itself. After the liberation from French rule in 1813, attempts were made to draft a national Code,' which were crowned with success in 1838. Apart from a number of more or less important subjects in the law of persons and family law, the law of successions and the law of property, the Code of 1838 was largely, often literally, based upon the Code Napoleon. By the middle of the 20th century both the Civil Code and the Commercial Code could be considered to be outdated on many points. Although it is true that the legislature had provided for several new statutes on subjects of social and economic importance, which were mostly incorporated into the Codes (such as juvenile law, lease and hire, labor contract, hire-purchase, company law), it had nearly entirely neglected to adapt the general parts of the law of property and the law of obligations to the needs of modern society. The ensuing gap in the development of private law was filled for the greater part by judge-made law. A major innovation in this respect was the expansion of tort law: in the beginning of this century the relevant article of the Civil Code was construed in such a way that not only the violation of a right or an act violating a statutory duty constituted an unlawful act, but also any act or omission violating a rule of unwritten law pertaining to proper social conduct.2 On the basis of this new interpretation the judiciary was ARTHUR S. HARTKAMP is Advocate-General at the Supreme Court of the Netherlands; Professor of Private Law at Utrecht University. 1. In fact more than one, viz a Civil Code, a Commercial Code and a Code of