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Unofficial Translation of Book 6 of the Draft of a new Netherlands Civil Code
Published online by Cambridge University Press: 21 May 2009
Extract
The following translation of the draft of Book 6 of the new Netherlands civil code was prepared by Mrs. E. J. Drion-van Rooyen and Mr. R. H. van Dijk under supervision of Prof. F. H. Lawson, D.C.L., F.B.A., Professor of comparative law at the University of Lancaster. The translation was made by order of the Minister of Justice of the Netherlands, but is not to be considered as an official translation. It was ordered primarily to make this part of the new codification accessible to comparative lawyers who do not understand the Dutch language. The draft may be of considerable interest to them since the drafters made a comprehensive study of comparative law.
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References
page 228 note * Meijers, , De honderdjarige burgerlijke wetgeving (centenary address of 1938), Verzamelde privaatrechtelijke opstellen I Leiden 1954, p. 140.Google Scholar
page 230 note * In 1969 a Bill was proposed to Parliament, which, already before introduction of the new Civil Code, is meant to introduce an entirely renewed law of evidence as part of the Code of Civil Procedure, and to remove the pertinen provisions from the civil code.
page 232 note * It also contains a provision on the liability for motor traffic accidents which is now to be found in the “Road Traffic Act” (Wegenverkeerswet, art. 31).
page 233 note * Though the Hoge Rood has decided that in the absence of specific provisions an action based on unjust enrichment should be recognised, if such a solution is in accordance with the system of the law and fits in with the solutions adopted for the cases for which legal provisions do exist (H.R. 30th January 1959, Ned. Jur. 1959, nr. 548: Quint/te Poel).
page 237 note * But, as far as Book 2 is concerned, the Bill dealing with these problems has already been submitted to parliament.
page 240 note * It is a deep-seated characteristic of Continental law—though not of Scots law—that a mere unilateral promise does not create a contractual obligation. For that to happen it must be accepted by the promisee. This has nothing to do with a doctrine of “consideration”, for the promisee need not couple his acceptance with a counter-performance or even a counter-promise. (F. H. L.)
page 240 note ** The Dutch term (verplichting van zedelijk-maatschappelijke aard) means literally “duty of a moral-social kind”, and denotes something that is required not simply by morality or simply by the demands of society, but something the breach of which at the same time would be immoral and would inspire social disapproval. It seems that John Austin's term “positive morality” comes nearest to a manageable equivalent. (F. H. L.)
page 255 note* i.e. if his power to set off originated at an earlier moment. See article 6 para. 1 in connection with article 4 para. 2.
page 265 note* Any attempt to find an English equivalent for “onverschuldigd betaald” has been given up. It means literally “performed” (or, more narrowly, “paid”) “in the absence of any obligation to perform” (or “pay”). “Onverschuldigde betaling” is the Dutch descendant of the Roman “solutio indebiti” (“payment of what is not owed”), which has been extended from “payment” to all kinds of “performance”. In general an action, termed in Roman law “condictio indebiti”, can be brought to recover what has been paid or the value of the performance. It corresponds roughly to the Common law action for money paid under a mistake of fact, though it is of wider extent, and covers also payment under coercion and performance of contracts that are void. In the absence of any compendious and accurate English equivalent which cannot be ruled out because of its clumsiness, the Roman term “solutio indebiti” has generally been used. (F. H. L.)