Burgerlijk Wetboek

The Burgerlijk Wetboek (or BW) is the civil code of the Netherlands. Early permutations were largely based on the Napoleonic code. Given substantive reform in 1992, the Dutch Civil Code now adopts much from the Bürgerliches Gesetzbuch (BGB), the German Civil Code.

History

Before efforts at unification almost every region and town in the Netherlands 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. It 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.

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 gives the example of 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 either 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 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 and beyond the BW was heavily amended. (3) Principles of both French and Dutch roots
(4) Rules of French Legal Tradition
(5) Rules arising from the French Revolution

Structure

The Dutch Civil Code is composed of eight books:

BOOK 1: Individuals and Family
BOOK 2: Legal Entities
BOOK 3: Property and Assets
BOOK 4: Inheritance
BOOK 5: Law of Obligations
BOOK 6: Contracts, Definitions
BOOK 7: Specific Contracts I
BOOK 7(a): Specific Contracts II
BOOK 8: Movement Resources and Transport