Legal Ignorance in the Netherlands

Abstract

This contribution considers the role of legal ignorance in Dutch private law. After a short description of the debate on legal ignorance by Dutch scholars, the article focuses on three areas: contract law, tort law and limitation periods. With respect to contract law, this article shows that courts allow for the nullification of a contract due to mistake of law in special circumstances: when the mistaken party was a foreigner or illiterate or when the other party was an expert who gave misinformation about relevant legal provisions. In the field of tort law, the article first examines case law in which public bodies were held liable for unforeseeable case law by the highest administrative court. It is argued that these decisions should be viewed as a manifestation of the fact that court decisions on liability have retroactive effect. Second, in relation to survival of claims for non-pecuniary losses, it is submitted that the Supreme Court seems to interpret notifications by relatives of the deceased victim generously in order to protect them against their legal ignorance. The article then examines case law by the Supreme Court that holds that legal ignorance does not preclude the commencement of prescription periods. However, when wrongful (legal) advice results in a loss, the Supreme Court ruled that the prescription period governing the client’s claim does not start running immediately because he will initially rely on the correctness of the advice. Regarding expiration periods and legal ignorance, the Supreme Courts seems to make a distinction between contractual and statutory expiration periods. The article concludes by considering the prospects for legal development in this area. It is argued the question who should bear the costs of legal ignorance is a matter of risk distribution. Where the risk lies, should depend on the weighing of various factors by the courts, notably the nature of the respective parties and of the interests involved and whether or not the legally ignorant person can claim compensation from a third party such as an attorney or an insurer.