Burgerlijk Wetboek
Encyclopedia
The Burgerlijk Wetboek is the civil code
of the Netherlands
. Early permutations were largely based on the Napoleonic code
. The Dutch Civil Code was given substantive reform in 1992. The Code deals with the rights of individuals (Book 1), legal entities (Book 2), the rights of assets(Book 3) and succession (Book 4). It also sets out the law of property (Book 5) and of contracts and obligations
(Books 6-7). Proposed amendments will add Books on intellectual property
and private international law.
had its own law. Local Dutch laws took much from Roman law
, particularly in the law of obligations and in the practice of written codes.
However no universal written code existed before the 19th Century.
Many attempts at a Code were short-lived, not helped by constantly changing governments and political conditions. In 1531, Charles V
, the Spanish Lord of the Netherlands, had ordered the codification of existing laws with a view towards uniformity. However the Eighty Years War and the end of Spanish rule in the Netherlands interrupted such plans. Some two centuries later, in 1801 under the new Batavian Republic
, another attempt was made. In 1804, a written code was partially ready but never saw operation. On 24 May 1806 the Netherlands became a French client state styled the "Kingdom of Holland
" under Napoleon's brother, Louis Bonaparte
. The King was instructed by Napoleon to introduce a Civil Code. A Committee was formed and, drawing from the Code Napoleon and some previous work, a Code - called the Wetboek Napoleon - was introduced by Royal Decree on 1 May 1809. Old Roman and Dutch law was abolished except where specifically retained by the Code. However the 1809 formulation was short-lived.
On 1 January 1811, the Netherlands was annexed by the French Empire
and the Code Napoleon was introduced.
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 accepted by the Parliament. It was mix of influences - Roman, Dutch and French. This code was adopted as the Burgerlijk Wetboek of 1838.
First, many French statutory provisions were removed. Meijer points to the omission of the concept of mort civil (or civil death), a concept which was wholly foreign to Dutch society. (Ibid, 233) Other omissions can be seen where a legal concept was culturally inappropriate for the Netherlands or inconsistent with existing principles of Dutch law. Second, modifications were made to codify existing Dutch law or give effect to Dutch legal standards. For example, in regard to property, the 1838 BW provided that the registration of a transfer deed was a precondition of ownership passing in real property. This was a codification of the original position in Dutch law. It replaced the alternative formulation of the French code. (Ibid, 233) However it remained true that the 1838 BW did draw much from the Code Napoleon, as Meijer concludes:
Over the next century the Code was amended many times. In 1947, the Dutch government instructed Eduard Meijers
with the complete revision of the Code. The 1838 BW was thought "out of date" and in need of modernisation. The driving force was technical recodification; it was argued that developed private law should be brought within the ambit of the Code.
The 1992 Code is more technical, systematic and abstract than its predecessor. It is also more conceptual, providing for many well-defined principles at differing levels of abstraction. A strict pattern of general rules preceding more detailed ones is honoured throughout. For example, for the purposes of tort, the concept of "an unlawful act" underlies liability. 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. Much discretion is also vested in the courts. This measure of flexibility permits 'intermediate solutions' to complex problems.
Like most other Civil Codes, procedural rules and public law remains outside the ambit of the 1992 Code.
BOOK 1: Individuals and Family
BOOK 2: Legal Entities
BOOK 3: Assets
BOOK 4: Inheritance/Succession
BOOK 5: Property
BOOK 6: Contracts, Obligations
BOOK 7: Specific Contracts I
BOOK 7(a): Specific Contracts II
BOOK 8: Movement Resources and Transport
BOOK 9: Intellectual Property
BOOK 10: Private International Law
Note: Book titles in italics are proposed additions to the Code that have not been incorporated as of 1 January 2006.
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
of the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
. Early permutations were largely based on the Napoleonic code
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
. The Dutch Civil Code was given substantive reform in 1992. The Code deals with the rights of individuals (Book 1), legal entities (Book 2), the rights of assets(Book 3) and succession (Book 4). It also sets out the law of property (Book 5) and of contracts and obligations
Law of obligations
The law of obligations is one of the component private law elements of the civil system of law. It includes contract law, delict law, quasi-contract law, and quasi-delict law...
(Books 6-7). Proposed amendments will add Books on intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
and private international law.
History
Before efforts at unification almost every region and town in the NetherlandsNetherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
had its own law. Local Dutch laws took much from Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
, particularly in the law of obligations and in the practice of written codes.
However no universal written code existed before the 19th Century.
Many attempts at a Code were short-lived, not helped by constantly changing governments and political conditions. In 1531, Charles V
Charles V, Holy Roman Emperor
Charles V was ruler of the Holy Roman Empire from 1519 and, as Charles I, of the Spanish Empire from 1516 until his voluntary retirement and abdication in favor of his younger brother Ferdinand I and his son Philip II in 1556.As...
, the Spanish Lord of the Netherlands, had ordered the codification of existing laws with a view towards uniformity. However the Eighty Years War and the end of Spanish rule in the Netherlands interrupted such plans. Some two centuries later, in 1801 under the new Batavian Republic
Batavian Republic
The Batavian Republic was the successor of the Republic of the United Netherlands. It was proclaimed on January 19, 1795, and ended on June 5, 1806, with the accession of Louis Bonaparte to the throne of the Kingdom of Holland....
, another attempt was made. In 1804, a written code was partially ready but never saw operation. On 24 May 1806 the Netherlands became a French client state styled the "Kingdom of Holland
Kingdom of Holland
The Kingdom of Holland 1806–1810 was set up by Napoleon Bonaparte as a puppet kingdom for his third brother, Louis Bonaparte, in order to better control the Netherlands. The name of the leading province, Holland, was now taken for the whole country...
" under Napoleon's brother, Louis Bonaparte
Louis Bonaparte
Louis Napoléon Bonaparte, Prince Français, Comte de Saint-Leu , King of Holland , was the fifth surviving child and the fourth surviving son of Carlo Buonaparte and Letizia Ramolino...
. The King was instructed by Napoleon to introduce a Civil Code. A Committee was formed and, drawing from the Code Napoleon and some previous work, a Code - called the Wetboek Napoleon - was introduced by Royal Decree on 1 May 1809. Old Roman and Dutch law was abolished except where specifically retained by the Code. However the 1809 formulation was short-lived.
On 1 January 1811, the Netherlands was annexed by the French Empire
First French Empire
The First French Empire , also known as the Greater French Empire or Napoleonic Empire, was the empire of Napoleon I of France...
and the Code Napoleon was introduced.
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 accepted by the Parliament. It was mix of influences - Roman, Dutch and French. 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 Code Napoleon, it did adopt many Dutch innovations. First, one might note differences in structure. Unlike the French model, the BW drew a strict contrast between real rights (rights in rem) and personal rights (rights in personam). Property provisions were arranged around the principle of a 'right' to property. Many differences in content also prevailed. On selected issues, French law was either modified or abrogated. Meijer identifies many key alterations:First, many French statutory provisions were removed. Meijer points to the omission of the concept of mort civil (or civil death), a concept which was wholly foreign to Dutch society. (Ibid, 233) Other omissions can be seen where a legal concept was culturally inappropriate for the Netherlands or inconsistent with existing principles of Dutch law. Second, modifications were made to codify existing Dutch law or give effect to Dutch legal standards. For example, in regard to property, the 1838 BW provided that the registration of a transfer deed was a precondition of ownership passing in real property. This was a codification of the original position in Dutch law. It replaced the alternative formulation of the French code. (Ibid, 233) However it remained true that the 1838 BW did draw much from the Code Napoleon, 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 instructed Eduard Meijers
Eduard Meijers
Eduard Maurits Meijers was a Dutch jurist of Jewish background, who was the founding father of the current Dutch civil code, the Nieuw Burgerlijk Wetboek.- Family :...
with the complete revision of the Code. The 1838 BW was thought "out of date" and in need of modernisation. The driving force was technical recodification; it was argued that developed private law should be brought within the ambit of the Code.
1992 Code Reform
Despite the initial scope of revision being 'technical reform', the 1992 BW introduced substantive innovations to both the prior Code and established case-law. The technical focus of the revision is informed by the German BGB. The distinction between civil law and commercial law is removed in favour of the broader ambit of private law. The Code now covers all aspects of commercial regulation - corporations law, insurance law, transport law, consumer law and labour law. For example, the 1992 Code now regulates 'commercial contracts' specifically (Book 6, Art. 119a). An action for unjust enrichment is available (Book 6, Art. 212), as are actions for a 'defect of consent' or an 'abuse of circumstances' (Book 6, Art. 44(4)). More generally, requirements of good faith now appear to be an 'omnipresent' theme throughout the Code: Art. 1 (Book 6) provides that both parties in a relationship are to behave equitably and reasonably towards each other. This appears to extend beyond contracts into other realms of law.The 1992 Code is more technical, systematic and abstract than its predecessor. It is also more conceptual, providing for many well-defined principles at differing levels of abstraction. A strict pattern of general rules preceding more detailed ones is honoured throughout. For example, for the purposes of tort, the concept of "an unlawful act" underlies liability. 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. Much discretion is also vested in the courts. This measure of flexibility permits 'intermediate solutions' to complex problems.
Like most other Civil Codes, procedural rules and public law remains outside the ambit of 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 3000 articles and eight books:BOOK 1: Individuals and Family
BOOK 2: Legal Entities
BOOK 3: Assets
BOOK 4: Inheritance/Succession
BOOK 5: Property
BOOK 6: Contracts, Obligations
BOOK 7: Specific Contracts I
BOOK 7(a): Specific Contracts II
BOOK 8: Movement Resources and Transport
BOOK 9: Intellectual Property
BOOK 10: Private International Law
Note: Book titles in italics are proposed additions to the Code that have not been incorporated as of 1 January 2006.