The ''Burgerlijk Wetboek'' (or BW) is the
Civil Code
A civil code is a codification of private law relating to property, family, and obligations.
A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdictions with a civil code, a number of the core ar ...
of the
Netherlands
)
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, subdivision_type = Sovereign state
, subdivision_name = Kingdom of the Netherlands
, established_title = Before independence
, established_date = Spanish Netherl ...
. Early versions were largely based on the
Napoleonic Code. The Dutch Civil Code was substantively reformed in 1992. The Code deals with the rights of natural persons (Book 1), legal persons (Book 2), patrimony (Book 3) and succession (Book 4). It also sets out the law of property (e.g., ownership, possession, and security interests) (Book 5),
obligations
An obligation is a course of action that someone is required to take, whether legal or moral. Obligations are constraints; they limit freedom. People who are under obligations may choose to freely act under obligations. Obligation exists when ther ...
(Book 6) and
contracts
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
(Book 7), and
conflict of laws
Conflict of laws (also called private international law) is the set of rules or laws a jurisdiction applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction. This body of law deals with three broad t ...
(Book 10). Proposed amendments will add a Book on
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
.
The codification of laws is still being used in
Indonesia
Indonesia, officially the Republic of Indonesia, is a country in Southeast Asia and Oceania between the Indian and Pacific oceans. It consists of over 17,000 islands, including Sumatra, Java, Sulawesi, and parts of Borneo and New Guine ...
as a pinnacle of the private laws besides
Sharia law
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the Five Pillars of Islam, religious precepts of Islam and is based on the Islamic holy books, sacred scriptures o ...
and custom laws. The laws initially applied only to Dutch settlers and foreign traders, such as Chinese traders, Indian traders and Arab traders during the Dutch colonial era in
Dutch East Indies
The Dutch East Indies, also known as the Netherlands East Indies ( nl, Nederlands(ch)-Indië; ), was a Dutch colony consisting of what is now Indonesia. It was formed from the nationalised trading posts of the Dutch East India Company, which ...
, but after the independence of Indonesia in 1945, the government decided to retain the old Dutch law, expanded in use to indigenous people and Muslims voluntarily. The 1992 reformed version does not apply in Indonesia.
History
Before efforts at unification, almost every region and
borough
A borough is an administrative division in various English-speaking countries. In principle, the term ''borough'' designates a self-governing walled town, although in practice, official use of the term varies widely.
History
In the Middle Ag ...
in the
Netherlands
)
, anthem = ( en, "William of Nassau")
, image_map =
, map_caption =
, subdivision_type = Sovereign state
, subdivision_name = Kingdom of the Netherlands
, established_title = Before independence
, established_date = Spanish Netherl ...
had its own law. Local
Roman-Dutch law borrowed heavily from the
civilian
Civilians under international humanitarian law are "persons who are not members of the armed forces" and they are not "combatants if they carry arms openly and respect the laws and customs of war". It is slightly different from a non-combatant, b ...
''
ius commune
''Jus commune'' or ''ius commune'' is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" ...
'', particularly with respect to the law of obligations and in the practice of written codes.
However, no universal written code existed before the 19th century.
Many attempts at codification were short-lived, not helped by constantly changing governments and political conditions. In 1531,
Charles V Charles V may refer to:
* Charles V, Holy Roman Emperor (1500–1558)
* Charles V of Naples (1661–1700), better known as Charles II of Spain
* Charles V of France (1338–1380), called the Wise
* Charles V, Duke of Lorraine (1643–1690)
* Infan ...
, the Spanish ruler of the Netherlands, ordered the codification of existing laws with a view towards uniformity. However, the
Eighty Years War
The Eighty Years' War or Dutch Revolt ( nl, Nederlandse Opstand) ( c.1566/1568–1648) was an armed conflict in the Habsburg Netherlands between disparate groups of rebels and the Spanish government. The causes of the war included the Refo ...
and the end of Spanish rule in the Netherlands interrupted such plans. Some two centuries later, another attempt was made in 1801 under the new
Batavian Republic
The Batavian Republic ( nl, Bataafse Republiek; french: République Batave) was the successor state to the Republic of the Seven United Netherlands. It was proclaimed on 19 January 1795 and ended on 5 June 1806, with the accession of Louis Bona ...
. In 1804, a written code was partially drafted but never enacted.
On 24 May 1806 the Netherlands became a French client state, styled the
Kingdom of Holland
The Kingdom of Holland ( nl, Holland (contemporary), (modern); french: Royaume de Hollande) was created by Napoleon Bonaparte, overthrowing the Batavian Republic in March 1806 in order to better control the Netherlands. Since becoming Emperor ...
under Napoleon's brother,
Louis Bonaparte
Louis Napoléon Bonaparte (born Luigi Buonaparte; 2 September 1778 – 25 July 1846) was a younger brother of Napoleon I, Emperor of the French. He was a monarch in his own right from 1806 to 1810, ruling over the Kingdom of Holland (a French cl ...
. The King was instructed by
Napoleon
Napoleon Bonaparte ; it, Napoleone Bonaparte, ; co, Napulione Buonaparte. (born Napoleone Buonaparte; 15 August 1769 – 5 May 1821), later known by his regnal name Napoleon I, was a French military commander and political leader who ...
to receive and enact the
Napoleonic Code. A committee was formed and, drawing heavily from the Napoleonic Code and some previous work, a code—called the ''Wetboek Napoleon, ingerigt voor het Koningrijk Holland''—was enacted by royal decree on 1 May 1809.
Roman-Dutch law was abolished except where specifically retained by the Code and in the Dutch colonies. However, the 1809 enactment was short-lived.
On 1 January 1811, the Netherlands was annexed by the
French Empire and the Napoleonic Code was adopted in unmodified form.
Dutch independence was restored with the collapse of French rule in 1813. The Kingdom once again pursued codification. Article 100 of the 1814 Constitution refers to a codification based on Dutch law. Various proposals were made between 1816 and 1830.
Finally in 1830 a new code was enacted by Parliament. It was a mix of influences—mainly French and Roman-Dutch. This code was adopted as the ''Burgerlijk Wetboek'' of 1838.
The 1838 Code, French influence and amendments
The 1838 Code entered into force on 1 October 1838. While it was substantially influenced by the
Napoleonic Code, it did adopt some
Roman-Dutch innovations. First, one might note differences in structure. Unlike the French model, the Dutch Code drew a strict contrast between real rights (rights ''in rem'') and personal rights (rights ''in personam''). Property provisions were arranged around the principle of ownership.
Many differences in content also prevailed. On certain subjects, French law was either amended or repealed.
Meijer identifies many key alterations. First, many French statutory provisions were removed. Meijer points to the removal of
civil death
Civil death ( la, civiliter mortuus) is the loss of all or almost all civil rights by a person due to a conviction for a felony or due to an act by the government of a country that results in the loss of civil rights. It is usually inflicted on per ...
, a concept which was wholly foreign to Dutch society.
Other omissions can be seen where a legal concept was either culturally inappropriate or inconsistent with existing Dutch legal principles. Second, modifications were made to codify prior existing Roman-Dutch law or give effect to Roman-Dutch legal standards. For example, with regard to
conveyancing
In law, conveyancing is the transfer of legal title of real property from one person to another, or the granting of an encumbrance such as a mortgage or a lien. A typical conveyancing transaction has two major phases: the exchange of contracts ...
, the 1838 Code did away with the Napoleonic ''solo contractu'' (aka ''solo consensu'') doctrine and instead provided that a sales contract and delivery are separate legal acts, title to property must be valid, for delivery to be valid the contract must be valid, and all are required to transfer title.
[According to the ''solo contractu'' doctrine, conveyancing is a one-step process embodied in a valid sales contract; title transfers automatically when the contract goes into effect without the need for a separate act of delivery. The contract is valid if there is a ''iusta causa'' and a meeting of the minds (''mutuus consensus'').] This codified the ''titulus''-''modus'' variant of the causal system of title transfer (''causale stelsel van eigendomsoverdracht'').
However, it remained true that the 1838 Code did draw heavily from the Napoleonic Code, as Meijer concludes:
The French ''Code Civil'' was the model for the BW of 1838. This does not mean that the BW is a copy of the Code. It appears that the BW was not simply a translation. The BW is influenced by the ''Code Civil'', but this does not justify the view that the Netherlands adopted French law. On the contrary: Some French rules were removed. Former Dutch law was inserted instead of the French rules or as a supplement to the BW. We find a large part of the Code is based on joint roots, and that the most important common background is Roman law.
Over the next century the Code was amended many times. In 1947, the Dutch government tasked
Eduard Meijers
Eduard Maurits Meijers (10 January 1880, Den Helder – 25 June 1954 in Leiden) was a Dutch jurist of Jewish background, who was the founding father of the current Dutch civil code, the Nieuw Burgerlijk Wetboek.
Biography
Family
He was t ...
with completely revising the Code. The 1838 Code was thought ‘out of date’ and in need of modernisation. The driving force was technical recodification; it was argued that the Code should be updated to reflect recent developments of private law.
1992 Code Reform
Despite the initial scope of revision being ‘technical reform’, the 1992 BW enacted substantive modifications to both the prior Code and established case-law.
The technical focus of the revised code is borrowed from the German
BGB. The distinction between civil law and commercial law was done away with and brought under the broader ambit of private law. The Code now covers all aspects of commercial regulation—company, insurance, transport, consumer, and labour laws. For example, the 1992 Code now specifically regulates commercial contracts (Book 6, art. 119(a)). An
unjust enrichment
In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make res ...
action is available (Book 6, art. 212), as are rescissory actions for vitiated consent or an ‘abuse of circumstances’ (Book 6, art. 44(4)). More generally, requirements of good faith now appear to be a constant theme throughout the Code: Book 6, art. 1 provides that both parties in a relationship are to behave equitably and reasonably towards each other. This appears to extend beyond contracts into other areas of law.
The 1992 Code is more technical, systematic, and abstract than its predecessor. It is also more conceptual, providing many well-defined principles at differing levels of abstraction. Throughout, the Code lays out a strict pattern of general rules upon which are built detailed ones. For example, tortious liability is founded on a general concept of an unlawful civil wrong. The concept will have differing applications in different circumstances.
The Code is also more nuanced, providing for degree and qualification where an ‘all or nothing’ approach may have prevailed under the prior Code.
The Code also loosens the legal positivism of the French system in favour of granting courts wider discretion in adjudicating cases. This discretion permits ‘intermediate solutions’ (i.e., not slavishly statutory) to complex problems.
Like most other foreign
civil codes
A civil code is a codification of private law relating to property, family, and obligations.
A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdictions with a civil code, a number of the core are ...
, rules of procedure and public law are codified separately from the 1992 Code.
Criticisms
The Code has been criticised for affording too much discretion to courts.
This, it is said, undermines certainty, a key aim of codification. On the other hand, flexibility allows the Code to meet new challenges without regular amendment. Further, the consolidation of a wide body of commercial law into the Code now makes it a ‘one-stop’ reference for private law and easily accessible and relevant to citizens and businesspeople alike.
Structure
The Dutch Civil Code is presently composed of some 3,000 articles and 9 books:
See also
*
Dutch Code of Civil Procedure ( nl, Wetboek van Burgerlijke Rechtsvordering)
Further reading
* Jeroen Chorus, Ewoud Hondius, & Wim Voermans, eds. ''Introduction to Dutch Law'', 5th edn. Alphan aan den Rijn: Kluwer, 2016.
* H. Warendorf, R. Thomas, & I. Curry-Sumner, trans. ''The Civil Code of the Netherlands''. Alphen aan den Rijn: Kluwer, 2013.
References
{{Civil codes by country, Europe
Dutch legislation
Civil codes