Week 5 - Private Law

Juridical person

independent bearer of right and duties and therefore subject to law

private law

the area of law governing to the relationship between juridical persons

partimonial rights

rights with a monetary value

patrimonium components

• personal rights

• debts

• real rights

which components of the patrimonium does law of obligations include?

• personal rights

• debts

which components of the patrimonium does law of property include?

• real rights

Book 3 DCC

patrimonial law in general

Book 5 DCC

real property rights

Book 6 DCC

• obligations

• include = contracts + lawful/unlawful acts

• continuation of book 3 DCC

Book 7 DCC

particular contracts

Book 8 DCC

transport law

obligation

a legal relation between at least 2 persons which entitles one party (creditor) to a performance of the other party (debtor), that needs to be performed and for which the law usually provides remedy (action)

exception to obligation

• natural obligation

• art. 6:3 DCC

natural obligation

a moral duty that cannot be legally enforced, but if the person voluntarily fulfills it, the performance is valid and cannot be reclaimed

types of performance

1. to give (dare)

2. to do (facere)

3. to warrant (prestare)

termination of obligation

1. Performance

2. Remission of debt

3. confusion (debtor = creditor)

4. force majeure

what is the origin of an obligation?

juristic fact

juristic fact

certain facts or situations which automatically create legal consequences

bare juristic facts (definition + example)

• A fact or event that produces legal consequences, even though it occurs independently of anyone’s will or intention

• example = birth or death

Factual act

human action that produces legal consequences even though the person did not intend to create any legal effect, the law still attaches consequences to the act anyways

juridical act

action where the person intends to invoke the legal consequences

freedom of contract principles

• freedom from formal requiements

• freedom in choice of partners

• freedom in choice of obligations

• freedom regarding other content

where does it mention that freedom of contract is not unlimited

art. 3:40 DCC

general requirements for validity of contract (+relevent articles)

1. Capacity (art. 3:32 DCC)

2. Permissible content (art. 3:40 DCC)

3. Consensus (art. 6:217 + 3:33 DCC)

4. Determinability of obligations (art. 6:227 DCC)

regret in contract law (meaning + relevant articles)

• revoking a contract

• does not mean mistake or vitiated consent

• art. 6:219 DCC

what does mistake mean in contract law

when will does not equal to the statement

in principle if there is no consent …

there is no contact

exception to no consent = no contract

• doctorine of will and reliance

• art. 3:35 DCC

what does vitiated consent mean?

when will equals to statement but the consent was defective

types of vitiated consent

1. Error = art. 6:228 DCC

2. Threat = art. 3:44(2) DCC

3. Fraud = art. 3:44(3) DCC

4. Abuse of circumstances = art. 3:44 DCC

error meaning

misunderstanding or lack of relevant information

threat meaning

unlawful intimidation

fraud meaning

deliberate incorrect statement or concealment

abuse of circumstance meaning

induced juridical act under abnormal circumstances

interpreting contract in dutch law

• Haviltrex judgement

• reasonableness + equity (art. 6:248 DCC)

Haviltrex judgement explain

• courts do not only look at the literal meaning of the words in the contract

• court considers what both parties intended

• what would a reasonable person in the situation understand

• background, legal knowledge and understanding of the parties

principles of reasonableness and equity explain

• builds on Haviltrex judgement

• contact is not only determined by its literal terms but also principles of reasonableness and equity

• can have a restrictive effect or supplementary effect

• restrictive = contract clause will not apply if it is unreasonable 

• supplementary = adds obligations that are reasonable

types of performance problems

1. Inferior performance

2. Late performance

3. Non-performance

remedies for performance problems

1. invoke right to suspend own performance = art. 6:262 DCC

2. action to claim specific performance = art. 3:296 DCC

3. action to claim damages = art. 6:74 DCC

4. action to rescind contract = art. 6:265 DCC

exception to right to suspend own performance

• art. 6:263 DCC

• reverse / contingency exception

• exceptions to the right to suspend performance

action for damages process

1. Is debtor liable for non performance

• check art. 6:74(1) DCC

• check exception art. 6:75 DCC

2. Is it possible for debtor to continue performance?

• no = compensation can be claimed now (art. 6:74(2) DCC)

• yes = second chance

  • creditor must send a “first default” (art. 6:82 DCC)

  • exception = immediate default (art. 6: 83 DCC)

rescission of contact

1. every failure in performance = art. 6:265(1) DCC

2. failure to perform after “first default” given when debtor could still perform = art. 6:265(2) + 3:82 + 3:83 DCC

3. no retroactive effect = art. 6:271 DCC

what happens when contract is rescinded but it is impossible to undo perfromance

• art. 6:272 DCC