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One Hundred and Fifty Years of Dutch Commercial Law*

Published online by Cambridge University Press:  21 May 2009

A. van Oven
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Extract

The secession of Belgium from the Netherlands in 1830 was both the signal of departure for the divergent development of law in the two countries, and a breakingpoint in the recently completed codification of private law. (The codes concerned, which had already been enacted, were to have entered into force on 1 February 1831). For the applicable law in the Netherlands, this meant, inter alia, that the French Code de Commerce would continue to be in force for another eight years. In the meantime an effort was made to adapt the Dutch national code to the now arisen situation in so far as regarding various points would be deviated to an even greater extent from the French example than had been done in previous bills. Before Holland was annexed by France, King Louis Napoleon had instructed a trimvirate to draw up a Dutch Commercial Code, and in accordance with his instructions, they had used the Code de Commerce as a starting point, though where necessary, they certainly took into account the conditions existing and the opinions prevailing in the Netherlands. The 1809 bill that resulted continued to play an important part in the later preparations of the codification. The result was that the Dutch Commercial Code which entered into force in 1838 was based to a lesser extent on the French example than was the case with the other codes – though it still followed the French example to a considerable degree – because on certain points it restored the Dutch law dating from before the French occupation, particularly with regard to a number of subjects concerning maritime law and insurance law, as well as bankruptcy law. With regard to the law on negotiable instruments, it was evidently considered less important, probably because traces of the original Dutch law were still discernable in the relevant provisions of the Code de Commerce. This resulted from the fact that in the preparation of the Ordonnance du Commerce of 1673 Colbert had invited Amsterdam merchants to Paris to advise him regarding the content of the law on negotiable instruments.

Type
Articles
Information
Netherlands International Law Review , Volume 30 , Issue 2 , August 1983 , pp. 187 - 213
Copyright
Copyright © T.M.C. Asser Press 1983

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References

1. Consisting of A. van Gennep, M.S. Asser and J. van der Linden.

2. See Meijer, J.D. and Tijdeman, H.W., in Briefwisseling van eenige Regtsgeleerden (1819)Google Scholar Sixth Letter.

3. This was stimulated by the comments of F.A. van Hall on the preceding subject in Kritische beschouwing der zeven eerste titels van het Nieuwe Nederlandsche Wetboek van Koophandel, IV Bijdragen tot Regtsgeleerdheid en Wetgeving, (1829) p. 59Google Scholar et seq.

4. See, e.g., Hall, F.A. van, Verdediging van de onafhankelijkheid bij het oprigten van naamloze maatschappijen (1834).Google Scholar

5. On this subject, cf., Meijer, J.D., Esprit, origine et progrès des institutions judicaires (1827) vol. VI chapter 27.Google Scholar

6. Nevertheless J. van der, Linden devoted a separate chapter on “Commerce, and the laws applicable to this” in his work, Regtgeleerd, practicaal en koopmanshandboek (1806).Google Scholar

7. Art. 163 of the 1815 Constitution. The present Constitution (art. 164) no longer stipulates the requirement of a separate Commercial Code.

8. Almost a century later, viz., in the 1934 revision of the Commercial Code discussed below, the term “commercial matters” is replaced by “the subjects dealt with in this Code”.

9. See e.g., Visch, D.I. Mom, Themis (1862) p. 370Google Scholar et seq. Cf. also the theses by Herkenrath, G.L., “De vera mercatorii neerlandici articulum I” (1854)Google Scholar, and Dijckmeester, P., De leer der daden van koophandel (1864)Google Scholar. For a later stage, also see Faber, G.J.A., Themis (1877) p. 205 et seq.Google Scholar, who declares in this context that “no essential and permanent improvement in our commercial law is possible as long as this article continues to exist. However, a number of other writers considered the article to be superfluous because it was self-evident. See F.A. van Hall in “Kritische Beschouwing … etc.”, and de Pinto, A., Introduction to the 2nd volume of “Handleiding tot het Wetboek van Koophandel” (1841)Google Scholar.

10. Para, of the Handelsgesetzbuch, applicable to the whole of Germany, explicitly refers to commercial practice as a source of law which is primary to common law, the latter coming into force only when the former is lacking.

11. de Pinto, A., Preface, “Handleiding tot het Wetboek van Koophandel” (1841), p. VIIGoogle Scholar.

12. Hall, J. van, review of De Pinto's work in “Jaarboeken voor Regtsgeleerdheid en Wetgeving”, (1842) p. 311.Google Scholar

13. Including on of the preliminary advisors, viz., T.M.C. Asser, as well as S.J. Hingst (later a member of the Supreme Court), and the Professor at Groningen, B.J. Gratama. The supporters included, in addition to the other preliminary advisor, B.D.H. Tellegen (also a Professor at Groningcn), D.I. Mom Visch and the well-known Amsterdam lawyer, Levy, J.A., see Handelingen NJV (1972) pp. 131 et seq., 138 et seq., 144 et seqGoogle Scholar.

14. According to F.B. Coninck Liefsting, a member and later president of the Supreme Court, and in the same sense, the Utrecht professor Fruin, J.A.Handelingen NJV (1873) pp. 158 and 99 resp.Google Scholar

15. See Hingst, S.J., Handelingen NJV (1877) p. 83Google Scholar.

16. Handelingen NJV (1833) IIGoogle Scholar.

17. Leidraad, Volume I (1953) 9th edition p. 3Google Scholar.

18. See the essays in Rechtsgeleerd Magazijn devoted to his work by prominent layers.

19. See, e.g., H.R. 8 April 1937 NJ 640, Kersten v. Mantel.

20. H.R. 26 November 1897 W 7047, Boeschoten v. Besier.

21. Arbitral Court decisions, 1919, no. 6.

22. See Art. 8 (a) Uniform Customs: “In documentary credit operations all parties concerned deal in documents and not in goods”.

23. Handelingen NJV (1878) p. 87.

24. A. De Pinto, Themis IV, p. 53, Hall, J. van, “Nieuwe Bijdragen” III (1853), p. 131 et seq.Google Scholar In the same sense, the thesis by D.A. Waliaven from Leyden, dating from 1817.

25. Leidraad, 9th edition, pp. 377 and 381.

26. Meanwhile revised by other authors, viz., first by J. Wiarda (1950) and then by W.R. Meijer (1979).

27. Supreme Court, 4 June 1920, NJ 712 W. 10603 with Molengraaff's note.

28. The diplomatic conference which led to this convention and to the cheque convention were chaired by the Dutchman, G. Limburg.

29. Supreme Court, 7 November 1958, NJ 1960, 177, in the Case Leygraaff v. Ned. Spoorwegen.

30. The work was intended to embrace the “dogmatic history” or “the development of the theories”, but unfortunately the author did not achieve this. Volume I contains only the so-called historia externa, i.e., the relevant sources.

31. Act of enforcement of 28 March 1979, Off. Gaz. 245.

32. Decision of 17 April 1862 W. 2370.

33. Supreme Court 20 June 1924, NJ 888 W. 11258 Koning and Stokvis v. Haagsche Assurantie Compagnie.

34. Decision of 3 Maich 1972, NJ 339 re. the farm of Jacob Maring.

35. J. Heemskerk, later Minister of Internal Affairs, in the journal De Volksvlijt, 1885, Sassen, W., Themis 1856, p. 140 et seq.Google Scholar

36. Decision of 21 January 1926, NJ 161 W. 10365 Lindenbaum v. Cohen.

37. The last two were dealt with by Molengraaff's successor as Professor in Utrecht, C.W. Star Busmann.

38. See in particular the decisions of 9 December 1926, NJ 1927, 550 (the so-called Shawl decision) and of 30 May 1930, NJ 945 (re. the de Maas and Waalse Bank).

39. Decision of 20 October 1933, NJ 1505 W. 12689 Molenaar v. Zijlstra.

40. WPNR 1645, also see “De Faillissementswet verklaard” (An explanation of bankruptcy law), 4th edition, p. 554 et seq.

41. Decision of 10 April 1941, NJ 1942, 22.

42. Exercised by Paul Scholten in his footnote to the decision in the NJ.

43. I.e., of 6 March 1970, NJ 433, re. Pluvier, and of 7 March 1975, NJ 1976, 91 re. Van Gend & Loos.