The Impact of Fundamental Rights on Dutch Private Law: Revolution or Evolution?

Abstract

In many European legal systems, fundamental rights enshrined in national constitutions and international and supranational human rights instruments tend to create strong magnetic fields across the entire body of law, including private law. In particular, this trend towards the constitutionalisation of private law can be observed in the Netherlands where fundamental rights contained in the Dutch Constitution (Grondwet) and the European Convention on Human Rights of 1950 (ECHR) become increasingly relevant for private law relationships. This contribution written as the Dutch report for the XIXth International Congress of Comparative Law 2014 focuses on the impact of fundamental rights on Dutch private law, with emphasis on contract law, tort law, and property law. The author argues in favour of the evolution of private law in the light of fundamental rights, rather than a constitutional revolution in private law. In her opinion, the Dutch experience in building a complementary relationship between fundamental rights and private law based on the idea of a dialogue between the two can provide some useful insights into how the constitutionalisation of private law could proceed in other national legal systems and in EU law.