How it works - Civil laws

When looking at a debt-claim as a property right, one notices that the creditor, to whom that claim belongs, has in fact the same possibilities as the owner of a tangible object. As proprietor of the debt-claim, he can uphold his right against all persons who have to respect it, though in case of a debt-claim this is only the debtor who has to carry out the indebted performance. Other persons are not bound by the debt-claim. They don't have to fulfil any performance to or on behalf of the creditor. Also in other ways a debt-claim resembles a right of ownership. Just as an owner, a creditor is the only one who is entitled to his debt-claim and to the rights and powers vested in it. And like an owner, he can split off one or more rights and powers of his debt-claim and grant them to a third party. Although a debt-claim is a property right, it has to be dealt with differently than a right of ownership or a limited real property right, because it hasn't got real effect. One must always keep in mind that, contrary to real property rights, within the legal bond between the creditor and debtor there is only one person - the debtor - who has to observe the debt-claim. Even though the creditor may split off one or more of the rights and powers within his debt-claim and grant them to another person, this other person can never obtain more rights than the creditor himself had, so he will never acquire a property right with real effect. A limited property right that has been split off of a debt-claim, just contains rights and powers that are enforceable against this one specific debtor. Nevertheless it might have some real effect within the legal sphere of the creditor to whom the debt-claim itselfs belongs as a property right, in the sense that the split off limited property rights can be upheld against the liquidator in the bankruptcy of this creditor and against his other creditors.

The object of a property right, so the object to which the property right of the proprietor is attached, can be a movable or an immovable thing. A right of ownership is always attached to a movable or an immovable thing. Therefore also the limited real property rights that have been spit off of a right of ownership will be attached to the underlying movable of immovable thing. In this way a limited real property right may be split off of a right of ownership attached to an immovable thing (usufruct, long leasehold, easement, right of superficies, apartment right or mortgage) or attached to a movable thing (usufruct, pledge). The object of a property right may as well be another limited real property right, for instance when a mortgage is taken on a usufruct that has been split off of a right of ownership attached to an immovable thing. The object of a debt-claim is not a thing, nor another right derived from such a thing, but the performance that has to be carried out by the debtor. So the debt-claim (property right) of the creditor (proprietor) is attached the performance that is to be fulfilled by this specific debtor. The property rights which may be split off of the debt-claim (usufruct, pledge) are, again, as well attached to that same performance of this particular debtor. So the limited proprietor who has acquired a limited property right that has been split off of the debt-claim of the creditor, will have obtained a number of rights and powers over the indebted performance that the creditor could have vindicated against this debtor, but that now may be collected by the limited proprietor of the debt-claim, whereas the creditor remains entitled to all other rights and powers embedded in his debt-claim.

In fact a ninth right in rem does exist. This is the ‘qualitative obligation’. That is a debt-claim, arisen from an agreement, with the content of an easement, yet with this characteristic that the servient land and dominant land do not have to be neighbouring lands. But since it is derived from an obligation it forms a part of the law of obligations and contracts.

Characteristic for Anglo-American law is that it has come to existence through various judgments with precedent effect. A central civil code is absent, as a consequence of which the law has developed itself less uniform and less systematic than in continental law systems. It's more focused on actual situations. Also the feudal context of real property law plays a vital part in the development of property law in Anglo-American law systems. In principle the property of the whole country, therefore all the land, belongs to the King. This means that people who have a right of use of a piece of land, can’t have the full property of it as it is known in continental law. They are tenants with a right of use, each with different powers to use and enjoy the land. These tenants have, in the course of history, continuously tried to ensure that the possession of their land, when they died, would not revert to the landlord or King, but would stay in the hands of their heirs. As a result, a special type of lawyer, called conveyer, appeared, whose job it was to make all kinds of settlements on behalf of the tenants, which enabled them to transfer the (use of the) land throughout their lives to family members and third parties, without losing the actual possession of the land during their lives themselves. The English courts have each time tried to abolish these settlements. This again has lead to the conception of new settlements. In this way a large variety of different powers and rights of use and enjoyment with regard to immovable property has been created in Anglo-American law. Consequently, property law in Anglo-American law countries isn't set up around a closed system with a limited number of property rights in rem, but it shows many types of rights in rem to all kinds of estates. There are even within the property law itself two separate systems, which have developed independently from each other. Firstly, the law of real property, containing all rights in immovable property originating from feudal law. Secondly, the law of personal property, existing of all real property rights in movable objects and in all other kind of property rights in rem, including shares, financial claims et cetera. So two different property systems exist next to each other. Within both systems a great number of different (real) property rights can be identified, with a much greater diversity than in the closed systems of continental law countries. In addition there are more possibilities for citizens to create their own kind of property rights in rem. That’s why, for an Anglo-American lawyer, the property law of continental law countries must appear uncomplicated and conveniently arranged.

The law of obligation in continental law and Anglo-American law systems

The law of obligations in continental law countries is characterised as well by its uniform structure and systematisation. An 'obligation' is always the central term, with a general meaning, irrespective if it originates from contract, tort, unjustified enrichment, undue performance or another similar source. Uniformity and systematisation are again the foundation of civil law. Whereas the result is always the same, in the sense that always an obligation has come to existence, the way to reach this result differs, depending on the kind of act under which the obligation was formed.

In continental law countries the juridical acts which create one or more obligations are subject to their own rules of law. But in the Dutch Civil Code also the law concerning the diverse juridical acts creating obligations is systemised. The provisions of Book 3 of the Dutch Civil Code with regard to juridical acts apply in general to all juridical acts (contracts and other multilateral and unilateral acts of law), unless a more specific rule of law stipulates differently.

In contrast to continental law systems, there’s no standard type of ‘obligation’ in Anglo-American law with a general meaning, thus there’s no standard relationship between a creditor and his debtor that applies to all kinds of obligations, irrespective of the source which has produced the obligation. In fact there are three different kinds of laws with regard to obligations: the law of contract, the law of tort and the law of restitution. Each of these fields of law has developed itself more or less independently to a self-regulating legal system with its own kind of obligation. Certainly some terms and subjects are known in all three fields of law, but overall, within each field, there has been a largely disconnected development. The result is that each field of law has its own specific rules. That is why there are important differences in Anglo-American law with respect to the legal character of obligations and claims arising from tort and those arising from a contract. The claim coming from an obligation which has arisen from tort is, for example, not transferrable, whereas a claim coming from an obligation derived from a contract usually is.

How to approach Dutch civil (private) law?

For a lawyer from a continental law country property law in Anglo-American law systems is hard to comprehend, since there’s no written down system that can be used as a guideline when approaching a specific rule or case. It takes years of study before a continental lawyer is able to find his way in Anglo-American property law, with its great variety of rights and obligations. One would think that for Anglo-American lawyers it must be easier to understand a continental law system, because they can cling themselves to a well defined legal structure. Surrounded by the safety of this structure they are able, in every single case, to determine which rule applies. This, however, is only partly true. An Anglo-American lawyer isn’t trained to approach the law systematically, at least not in the sense of continental law. For him the main rules of civil law are hard to recognize and it's not easy to understand that these rules are deliberately issued to apply in general, so with regard to a great variety of potential situations. Although a more specific rule of law precedes on a more general rule, a lawyer in a continental law country must always try to put a situation, if possible, under the power of the legal rule with the most general meaning and influence. He cannot, as he would do in Anglo-American law, look at the situation as a matter of its own, where an explicit judgment in a similar case has to be linked to.

So an Anglo-American lawyer who is studying Dutch civil law must always be aware that the legal rules have their own place in the system of the law and that they can’t be handled separately, as an independent rule for this specific situation, without taking into account other possible and even more general rules of law. Especially in Dutch civil law this systematisation is vital. The Dutch Civil Code (Burgerlijk Wetboek) is set up by means of a so-called ‘laminated structure’. This structure could simply be described as follows: a situation is covered by the most far-reaching rule of law, until a more specific rule applies to it. The rules with the most far-reaching spectrum are placed in Book 3 and at the beginning of Book 6 of the Dutch Civil Code (BW). The rules become more and more specific towards the end of Book 6 and in Book 7 BW. Also within each Book the rules with the most far-reaching spectrum are placed at the beginning, and as one works towards the end of the Book, the rules become gradually more and more specific. Of course a specific rule applies to less situations than a more general rule. Only when the situation is covered by the content of a specific rule, the more general rule must yield. As long as a situation isn’t regulated by a specific rule, the most general rule keeps its effect, provided the subject is covered by it. When studying Dutch civil law, it’s essential to keep this system in mind. Yet, it has to be pointed out immediately that Dutch courts themselves often do no apply the law systematically at all. Repeatedly they feel free to get around relevant statutory provisions or to interpret and apply them in their own way, depending on the specific circumstances. This leads to legal uncertainty and unpredictable judgments. Nevertheless, civil law should be applied by them within the legal system set for this purpose and, in the end, at least the Supreme Court still does so.

Dutch civil law in practice

This internet site basically explains the principles of Dutch civil (private) law. Where it refers to national law, the provisions of the Dutch Civil Code always form the starting point. Most subjects of private law are regulated in this Code. Of course there is other more detailed legislation on the field of civil law, but it is always based on the principles and statutory provisions of the Dutch Civil Code. Therefore, knowledge of the Dutch Civil Code and its legal structure is essential. For this reason an English translation of the Dutch Civil Code and a comment on the legal system of Dutch civil law are to be found on this website. But simply mentioning the text of its statutory provisions and the way how these rules should be applied, is not enough to get a proper insight. One has to be aware how Dutch courts apply these provisions in practice. And that's where the shoe pinches. The judges in the Netherlands have arrogated themselves an almost free discretion to apply the statutory provisions as they please. As a result, even though the legal effects seem absolutely clear in view of the text of a statutory provision and its place within the framework of civil law, the outcome of a lawsuit is always uncertain. When studying Dutch civil law this has to be kept in mind at all times. It’s not so sure as one might think. However, where it concerns the application of rules of private international law, Dutch courts are fortunately still fairly strict, due to the influence of European Regulations and International Conventions, where the European Court of Justice and the courts of other Contracting States keep the Dutch judges strapped. This makes this field of law much more structured and predictable, also in the Netherlands.

Civil Code»