Page 380 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CODES OF CIVIL LAW
7.5 The Dutch Burgerlijk wetboek (1838)
From 1806 onwards, the young Batavian Republic, the nation state into which the hitherto sovereign Dutch Provinces were merged, attempted to produce one national civil code. However, these attempts came to naught as in the turmoil of Napoleonic expansionism Napoléon Bonaparte turned the Batavian Republic into a puppet kingdom ruled by his brother, Louis. It was under this king, in 1809, that the inhabitants of the Kingdom of Holland became acquainted with their first civil code, the Wetboek Napoleon, ingerigt voor het Koningrijk Holland. It contained remedies for defects in the thing sold and for lesion beyond moiety modelled after those in the Code Napoléon of France.220
Louis' Kingdom of Holland, however, was short-lived. Considering his brother to 'Dutch', Napoléon annexed the Kingdom to France in 1811 and had the Wetboek Napoléon revoked.221 In 1811, the French code civil was promulgated in what formed merely a département of the French Empire. With the withdrawal of French troops in 1813 and the battle-smoke cleared, the liberated Dutch, now united in the sovereign state of the Netherlands, could again think of their own national code of civil law. From 1814 onwards, various committees worked on what was to become the Dutch civil code. It would nonetheless last as long as 1838 for the Kingdom, by then split in half by the independence of Belgium, to witness its own civil code coming into force and replacing to code civil.222
Despite the strong anti-French feelings in the Netherlands after the devastating wars waged by Napoléon, the Dutch Burgerlijk wetboek (Civil code) of 1838 (BW 1838) is largely modelled after the French Code civil, be it in sometimes doubtful renderings of the original French.223 It also contains traces of the law of the Dutch Provinces. In particular, Roman-Dutch law was a source of inspiration for the articles of the BW 1838.224 Nevertheless, the BW's provisions governing defects in the thing sold closely follow the Code civil's articles based on ius commune- and customary interpretations of the aedilician edict. Among other things, this includes the provision that the limitation of remedies for defects in sold objects depends on local custom.225 On the other hand, the remedy for lesion beyond moiety, which the Code civil still has for sellers of immovables, was left out of the Dutch code.226 The BW 1838 would remain in force until the promulgation of the New Dutch civil code in the second half of the 20th century.
220 Wetboek Napoleon, artt. 1414-1422 (remedies for defects), artt. 1446seq. (lesion).
221 Sirks, 'Code Napoléon', p. 324.
222 Sirks, 'Code Napoléon', pp. 324-326; in this chapter I leave aside the various committees and their drafts
for a civil code which appeared since 1814, because they had no decisive influence on the rules in the
BW 1838.
223 Cf. the rendering of the French in art. 1625 Cc to the Dutch of art. 1527 BW (1838).
224 Sirks, 'Code Napoléon', pp. 326-327.
225 Art. 1547 BW 1838.
226 Asser, Het Nederlandsch burgerlijk wetboek vergeleken, p. 507.
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