Towards a System of Equitable Standards in the New Dutch Civil Code

Abstract

After the Second World War, the Dutch civil code, dating from 1838, was generally considered to be outdated. In the course of its existence, many gaps, particularly in the field of civil obligation law, have had to be filled by the judiciary. The result was that Dutch civil law could no longer be understood from the existing civil code as its authors originally intended, but only by studying a comprehensive number of judicial decisions over a long period. Therefore, by a decree in council of 25 April 1947, the famous Leyden civil lawyer, Professor E.M. Meyers was commissioned to draft a new civil code. After his death in 1954, his work was continued by a triumvirate and later completed, with the exception of the books concerning special contracts. On 1 January 1970, the first book of the “new code”, hereafter referred to as NBW (Nieuw Burgerlijk Wetboek) concerning personal and family law, entered into force, followed in 1976 by Book 2, containing the new corporation law. In 1980, Books 3, 5 and 6, containing general principles of property, possession, obligation law, contract and tort, were enacted by parliament and are expected to enter into force in 1985. Equitable standards as a kind of open texture rules are not unknown in the present civil code. Concepts like “good faith” in contractual relations1 and “unlawful conduct” as a ground for tort liability2 have been given a much broader application by the judiciary in this century than in the first sixty years of the code’s existence.