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
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
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.