Development of a Concept of Force Majeure in the Netherlands

The old Dutch Civil Code (hereinafter, old DCC) of 1838 was enacted in the Netherlands under a strong influence from the original French Civil Code, which rejected the idea of imprevision in the performance of a contract.[1] Therefore, the similarities between Dutch and French law cannot be denied, especially in regard to dealing with change of circumstances. Because of this, the old DCC also did not contain any provision which entitled a party to rely on a change of circumstances to adapt the contract when a performance by one of the parties has become excessively burdensome.

The old Dutch Civil Code stipulated unforeseen circumstances only in the sense of impossibilities. It refers to the Article 1280 of the former DCC, which states that the debtor is liable to pay damages in the case of non-performance unless he can prove force majeure. In a similar way to the Indonesian Civil Code, this Article was mainly related to payment of compensation. Moreover, in the case of duty to deliver a particular object, it refers to Article 1480 of the old DCC. This Article 1480 states that “where a thing certain and determined which was the purpose of an obligation perishes, may no longer be the subject matter of legal transactions between private individuals, or is lost in such a way that its existence is entirely unknown, the obligation is extinguished if the thing had perished or has been lost without the fault of the debtor, and before he was under notice of default.” We can notice that the old Code only provided relief for the debtor in cases of impossibility caused by force majeure. For this reason, if it was impossible to perform the obligation due to force majeure, the duty to perform ceased as well, the debtor was released from any obligation to pay damages, and the contract was discharged. If, however, performance was possible, there was no force majeure.

The decisive reason that Dutch law eventually admitted unforeseen circumstances in its new Civil Code was initially triggered by the outbreak of World War I. Following the initial beginning of the twentieth century, the war resulted in great economic turbulence (among other events, a sudden rush on banks, hoarding of coinage, and general disruption caused by the financial system).[2] The conditions of war at that time were still insufficient to convince the Supreme Court to change its mind, and the Supreme Court was reluctant to allow the debtor to be released from its obligation easily, and often rejected the defence of force majeure.[3] The war, in turn, inspired a legal debate whether the notion of impossibility should include not only factual (objective) impossibility but also the personal (subjective) impossibility.[4] The latter suggested that the debtor was exempted for non-performance if he had performed everything within his efforts to accomplish the contract, but had failed due to external factors for which he had no liability.

Later on, there was no longer any hesitation regarding the existence of unforeseen circumstances based on reasonableness and fairness in Dutch law.  Van Boom reflected that the Great War was indeed the first rigorous test of the contract law framework of the 1838 Dutch Civil Code. This test showed that the theoretical structure of impossibility (force majeure) was flawed in substance.[5] Subsequently, the concept of subjective impossibility emerged as a potential excuse for non-performance, yet it was not satisfying and uncertain in practice. The likelihood in commercial contracts, especially in fungible goods contracts, usually centred on the extent of the debtor’s motivation to dedicate his efforts and resources to certain areas of the contractual performance. The subjective impossibility doctrine did not give a reasonable justification for the fact that impecuniosity did not constitute a proper case of force majeure. In the lower courts[6] as well as in academic writing,[7] opinions were voiced that stood in favour of the acceptance of ‘subjective impossibility’ due to the ongoing war situation as a justifiable ground for non-performance, that may be a basis for the modification of the contract. In due course, the concept on unforeseen circumstances as a separate doctrine of contract law began to be seriously drafted and was finally injected into the new Dutch Civil Code in the form of Article 6:258.

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[1] This code was, by and large, a continuation of the 1804 Code Napoléon, which had been in force in the Dutch territories since the French annexation of the Netherlands in 1810. See Warendorf et al., supra note 8, at XXV.

[2] The Kingdom of the Netherlands tried frantically to maintain a position of armed neutrality between the Central Powers and the Entente Forces. Further see van Boom, supra note 20, at 304.

[3] HR, 18 January 1926, NJ 1926, 203, WPNR 1926, no 2945, 270 (Stork v NV Haarlemsche Katoenmaatschappij (Sarong)); HR, 19 March 1926, NJ 1926, 441 (NV Textielfabriek ‘Holland’ v NV Tatersall & Holdworth Machinefabrieken en Magazijnen ‘De Globe’ & de Engelsche Vennootschap van Koophandel Buterworth & Dickinson Ltd the Burnley, England).

[4] See van Boom, supra note 20, at 315.

[5] Ibid., at 323.

[6] An argument that an increasing price 20-25 percent was sufficient to accept Force Majeure in Rechtbank Den Bosch, 26 March 1915, NJ 1916, 439 (Firma H Van Roosmalen en Zoon v Firma Chr Fles); Gerechtshof Den Haag, 8 December 1916, W 10129 (Engel v Coöperative Inkoopsvereeniging van Roomsch Katholieke brood-, koek- en banketbakkerspatroons St Hubertus).

[7] According to eminent scholars such as Meijers and Scholten, the fluctuation of price was of a systemic nature and threatened the livelihood of an entire class of debtors, on which basis legislative or judicial intervention was considered appropriate. See van Boom, supra note 20, at 318.

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