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

• DOI: http://doi.org/10.1111/j.1468-0386.2006.00318.x
• Date: 01 May 2006
• Author: Martijn W. Hesselink
• Published date: 01 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reason for the recodif‌ication was that the 1838 Code was thought to be out of date.1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.