European contract law: The contribution of the Dutch

This paper will argue that when contemplating the elaboration of a European civil law, Dutch law may have some interesting ideas to offer. From the wealth of thoughts offered by the General Reporter, only one particular thread will be taken up in depth. It is the protection of the weaker contracting party. In the new Dutch Civil Code, the old technique of providing relief in individual cases has been supplemented by a new technique of providing relief to parties who have a particular status. This may be the status of employee, hirepurchasor, tenant, patiënt or consumer. The >Reflexwirking< of the new techniques may benefit other weak parties. The substantive law aiming at protecting the weak party may be satisfactory, but the enforcement of this substantive law remains a major concern, as does the position of deprivileged contracting parties such as asylum seekers. Private complaints settlement procedures, collective action and a further use of human rights in contract law may provide a (partial) solution to these problems. In order to prove my case, I shall compare the present state of Dutch contract law with the law as it was before the enactment of the new Code. I shall also try to compare the protection of the weak party under Dutch law with that under some other jurisdictions. Before setting out to do so in Part II, I will present some more general ideas as to the development of a European private law in Part I. Having developed my ideas with regard to the protection of the weak, I shall then in Part III briefly address some of the other issues suggested by the General Reporter. The paper will thus be divided in three Parts, each consisting of seven Chapters. Part I will begin with an Introduction (Chapter 1), followed by a short description of the contents of a possible European Civil Code (Chapter 2). I shall then deal with the constitutionality of directives on European private law from an EU point (Chapter 3) and with the issue of codification (Chapter 4). The question whether a European private law is feasible will be dealt with in Chapter 5. Having given some thought to the issue how to proceed in Chapter 6, I shall present some conclusions in Chapter 7. In this Part, I will try - chiefly by references in the footnotes - to acquaint the German reader with publications by Dutch authors or published in Dutch law reviews on the development of a European private law. In Part II, I shall first draw an outline (Chapter 8). Then, in Chapter 9,1 will give some factual information as to the new Dutch Civil Code, the main part of which entered into force in 1992. Having done so, I will draw the attention to the techniques which the Dutch legislature has used to ensure the protection of weak parties. These techniques will be discussed under two headings: Chapter 10 will be devoted to traditional techniques aiming to protect individual parties and Chapter 11 to more recent techniques aiming at the protection of parties with a specific status. A specific issue at hand is the protection of the deprivileged (Chapter 12). Since a reform of substantive law usually is worth very little without a regular enforcement, I will be forced to give some consideration to that aspect in Chapter 13.1 will conclude this Part with some final observations in Chapter 14. Part III will be devoted to some of the remainig questions presented by the General Reporter. In Chapter 15 some consideration will be given to the precontractual phase. Chapter 16 will deal with standards of behaviour, Chapter 17 with Standard contracts, Chapter 18 with penalty clauses, Chapter 19 with relational contracts and Chapter 20 with the development of new contract types. I will finish this Part in Chapter 21 with some conclusions. This is not the first time that I have been writing on these subjects. I have first developed some of the ideas expressed in Part I in a Chapter in >Towards a European Civil CodeWelfarism in Contract Law<