The Ideal of Codification and the Dynamics of Europeanisation: The Dutch Experience

DOIhttp://doi.org/10.1111/j.1468-0386.2006.00318.x
Date01 May 2006
Published date01 May 2006
The Ideal of Codif‌ication and the
Dynamics of Europeanisation:
The Dutch Experience
Martijn W. Hesselink*
Abstract: In response to the growing incoherence of European contract law, the Com-
mission is planning to adopt a ‘common frame of reference’ (CFR) in 2009. That CFR
will effectively constitute a codif‌ication in a substantive sense. As a result, in codif‌ied
systems such as The Netherlands, there will be a shift from the familiar tension between
impressionistic harmonisation and systematic codif‌ication to a new tension between the
system of the national civil code and the system of the substantive European code. There-
fore, once the CFR is adopted by the Commission as a tool for revising the acquis and for
drafting new directives, national legislators inspired by the codif‌ication ideal will have to
reconsider their strategies towards the implementation of directives in the area of private
law. Three such strategies are considered here: resistance, segregation and surrender. Each
of them has advantages, but also disadvantages. None of them solve the tension between
national codif‌ication and Europeanisation. It seems unlikely that private law will ever
(again) be contained exclusively in one comprehensive code, either on the national or on
the European level. The CFR will make a comprehensive national codif‌ication increas-
ingly diff‌icult to achieve, whereas a comprehensive European Civil Code that replaces
national private law both lacks a legal basis and political support. Therefore, we will have
to live with a two- (or multi-) level system of private law. As a result, the Dutch and other
national legislators will have to revise their codif‌ication ideals.
IThe New Dutch Civil Code
ARecodif‌ication, not Reform
In 1947 the Dutch government asked Professor Meijers to draft a new civil code. The
reason for the recodif‌ication was that the 1838 Code was thought to be out of date.1
European Law Journal, Vol.12, No. 3, May 2006, pp. 279–305.
© 2006 The Author
Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
*Professor of European private law, Centre for the Study of European Contract Law, Amsterdam Insti-
tute for Private Law (AIP), Universiteit van Amsterdam, The Netherlands.This article is based on a paper
presented at the conference, ‘Harmonisation of Contract Law: Implications for European Private Laws,
Business and Legal Practice’, Oxford, 18–19 March 2005.
1In 1938, on the centenary of the civil code, Professor Meijers had appealed for a new code (E.M. Meijers,
‘Wijzigingen en aanvullingen van het Burgerlijk wetboek na 1838’, in: Paul Scholten and E. M. Meijers
During the f‌irst half of the twentieth century, private law had changed quite dramati-
cally, but most of the new developments had taken place outside the code, in specif‌ic
statutes and in case law. However, although the aim was to modernise the code this did
not mean that the law also had to be modernised. The idea was that the recodif‌ication
should be essentially ‘technical’: the existing private law should be brought into the
Code. This would restore the coherence of private law. Moreover, it would reaff‌irm (as
far as the codif‌ication of case law was concerned) the primacy of the legislator. Such
a recodif‌ication should not be the occasion to (re)open the debate on such highly polit-
ical issues as the legal capacity of married women and divorce. In other words, the aim
of the project was recodif‌ication, not law reform.2
The recodif‌ication took far more time than was initially expected.3Professor Meijers
had taken up his task very swiftly and presented a f‌irst draft in 1954. However, a few
months later, he died unexpectedly. He was succeeded by a team of three who were all
quite brilliant, but their collaboration was not an easy matter, which led to delays. They
were succeeded by others and there were further delays. The main part, on patrimonial
law, f‌inally came into force in 1992.4Today, after more than 50 years,recodif‌ication has
still not been fully accomplished.5
BSubstantive Innovations
In spite of the initially very limited aim of a ‘technical reform’, several decades of draft-
ing nevertheless led to many substantive innovations. Indeed, the new Burgerlijk
Wetboek (BW) introduced a number of changes which constituted innovations with
regard to both the previous code and, in many instances, established case law.6
Probably the innovation with the broadest scope was the abolition of the distinction
between civil law and commercial law: the Burgerlijk Wetboek is a code of private law
(regardless of its title).7A second fundamental innovation has been the acceptance of
a general action in the case of unjustif‌ied enrichment (6:212 BW). Some of the other
prominent novelties include the introduction of a fourth type of ‘defect of consent’,
i.e. ‘abuse of circumstances’ (3:44 (4) BW), a rule on change of circumstances (6:258
BW) and the possibility of adaptation (instead of annulment) in cases of abuse of
European Law Journal Volume 12
280 © 2006 The Author
Journal compilation © Blackwell Publishing Ltd. 2006
(eds), Gedenkboek Burgerlijk Wetboek 1838–1938 (Tjeenk Willink 1938), 33. However, on the same occa-
sion, this idea was rejected by Paul Scholten, the other leading scholar at the time. (Paul Scholten, ‘De
codif‌icatie-gedachte vóór honderd jaar en thans’, in: Paul Scholten and E. M. Meijers (eds), Gedenkboek
Burgerlijk Wetboek 1838–1938 (Tjeenk Willink 1938), 1.
2This aim f‌itted well with Meijers’ political ideals. In his view a recodif‌ication could contribute to bridg-
ing the gap between the law and the people.See C. J.H. Jansen, ‘De idealen van E. M. Meijers (1880–1954)
ten aanzien van de herziening van het burgerlijk wetboek’, in: S. C. J. J. Kortmann, C. J. Jansen and
G. van Solinge (eds), Onderneming en 10 jaar Nieuw Burgerlijk Wetboek (Deventer:Kluwer 2002), 3–26.
3For a detailed account,see E. O. H. P. Florijn, Ontstaan en ontwikkeling van het nieuwe Burgerlijk Wetboek
(Maastricht 1995).
4Book 3 on patrimonial law in general, Book 5 on property law, Book 6 on the law of obligations and
Title 7.1 on sale and exchange.
5Book 1 on persons and the family came into effect in 1970, Book 2 on legal persons in 1976, Book 8 on
transport in 1991, Book 4 on succession in 2003. Still to come are several titles of Book 7 on specif‌ic con-
tracts, Book 9 on intellectual property rights and Book 10 on private international law.
6However, from a comparative perspective, these innovations were not really all that new. In fact, most
were already present in the Italian Civil Code of 1942.
7The distinction has been reintroduced through the transposition of the late payment directive. The new
Art 6:119a only applies to ‘commercial contracts’; these are def‌ined in that same article.

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