p.3 |
Ten Geleide STORME, M. E. |
5 |
Een Ithaka
De redactie privaat SIEBURGH, C. |
13 |
Transparantie en algemene voorwaarden. Nood aan hervorming? TERRYN, E.The transparency requirement and unfair contract terms
– a case for reform ?
The transparency requirement stipulated in the Unfair Contract Terms Directive is an important factor in protecting the consumer against unfair terms and conditions. Under Article 5 of this Directive, in case of contracts where terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language. The transparency requirement also plays an important part in relation to core contract terms – under Article 4(2), assessment of the unfair nature of the terms relates neither to the definition of the main subject matter of the contract, nor to the adequacy of its price and remuneration as against the goods or services supplied in exchange, but only in so far as these terms are worded in plain intelligible language.
However, the effect of this transparency requirement in the member states has been highly unequal, in terms of both its application and effectiveness. The defective regulation of this requirement in the Directive has definitely been a major contributory factor here. It is true that the Court of Justice has, through its interpretation, considerably clarified the vague provisions of the Directive in recent years. Nevertheless, both the legal certainty and effectiveness of this requirement would benefit considerably from a number of adjustments. Some of the proposed adjustments consist in the codification of the case law developed by the Court of Justice.
To clarify the definition and content of this requirement is a matter of absolute necessity. In the first instance, the wording of the Directive – and not only its recitals – should make it clear that the transparency requirement also involves the opportunity to be informed of the terms and conditions of an agreement prior to its conclusion. Another adjustment could consist in specifying that the words “plain and intelligible” should also allow “the average consumer to foresee the economic consequences of the term for him”. This would merely amount to codifying the Court’s case law. It could also be made clear that, as is the case in other EU instruments such as the Data Protection Regulation, the information provided must be concise, communicated in an easily accessible manner, and worded in clear and plain language. In an international context, this also entails that the language in which the general terms and conditions are communicated to the consumer must be the same as that in which the consumer was approached.
These clarifications will not solve everything, and specific regulation will still be needed for specific types of agreement. In addition, however, even if clarified in the manner described above the transparency requirement will remain a general rule which will not guarantee legal certainty in every case. Neither the existing numerical tests aimed at expressing the intelligibility and complexity of a rule, nor its detailed regulation as is applied in certain foreign jurisdictions, currently provide adequate guarantees that the consumer will effectively read and understand the general terms and conditions. Nevertheless, there are lessons to be drawn from the methods applied in linguistics, and there is evidence that general terms and conditions which are worded more simply are definitely capable of making them more intelligible. We therefore deem it extremely useful to lay down detailed guidelines for formulating simpler general terms and conditions, without making such directions mandatory law.
Furthermore, transparency will never, by itself, be sufficient to provide the consumer with adequate protection against unfair contract terms. In many cases, the consumer will not take the trouble to read the general terms and conditions. The lack of transparency is one of the main reasons for this, but not the only or decisive one. Substantive review of contract terms should therefore definitely be maintained, and, in addition, more thorough requirements should be imposed for exempting core terms and conditions from such review. This should only be the case where such key terms and conditions have been brought to the consumer’s attention in a standardised frame or in a similar prominent manner. This would make it easier for the consumer to retrieve such essential information that is excluded from substantive review. At the same time, this would provide a practical way of drawing the distinction between core contract terms and other terms. In the United Kingdom, the relevant legislation has been adjusted along these lines. We would also advocate a rule whereby, in the event of any dispute or doubt regarding the transparency of a term, the court or the administrative authority could place the burden of proof on the business in question. In such cases it would be for the business to prove that such terms and conditions are sufficiently plain and intelligible for the average consumer belonging to the target group in question, i.e. the average consumer who concludes such agreements. Guidelines could be developed which contain directions as to how such empirical proof can be provided. The standard used could be similar to the “average consumer” test as applied by the Court of Justice. However, we would also favour interpreting this “average consumer” criterion as an empirically-based, rather than as a purely normative, test. Under this test, a contractual clause would become intelligible where the majority of a target group of consumers is in a position to understand it correctly – in the words of the Court of Justice, in a position to evaluate the economic consequences which derive from it. This ability to place the burden of proof on the business will also create an incentive to limit the number of contractual terms in the standardised frame.
Finally, the sanction for an infringement of the transparency requirement should be specified more clearly in the Directive. Here too, codifying the case law of the Court of Justice can provide the necessary degree of legal certainty. Not only is there the rule that the interpretation most favourable to the consumer shall prevail; in addition, transparency is also a factor to be taken into account when assessing the fairness of a term. Where there is an lack of transparency, this can be sufficient to prompt the conclusion that the term in question is unfair, without making this an automatism. It should also be stated clearly that transparency cannot constitute a defence or make unequal terms fair. Close Summary |
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De bescherming van de consument door het Hof van Justitie: een brug te ver? STEENNOT, R.Protection of the consumer by the Court of Justice -
A bridge too far ?
It is widely known that European legislation has, in the course of the past few decades, considerably strengthened the rights of the consumer. This contribution examines the role which the Court of Justice has played in this particular field. The author notes that the Court has developed its own policy on this subject which has made an important contribution to the protection of the consumer. In so doing, the Court has been guided by a realistic notion of the position of consumers. It starts from the premiss that the consumer is in a weaker position and is not always aware of his rights. Although it is possible to argue, from a theoretical point of view, that the Court of Justice has, in some cases, gone too far in its interpretation of the rights and obligations of the consumer and of the businesses of traders, a more pragmatic view enables one to draw the conclusion that the Court, through its case law, seeks to achieve objectives which European legislation was unable to realise. It should nevertheless be emphasised that the Court reserves this special protection for the consumer in the strictest sense of the word, and refuses to accept that those who act for professional purposes find themselves in the same position as those who act for professional purposes, but outside their area of expertise.
Below, the author restricts himself to a number of conclusions which illustrate the role played by the Court in the field of consumer protection:
The Court has regularly interpreted the rules of consumer law in such a way as to enable the consumer to exercise the rights conferred on him effectively, without in so doing losing sight of the legitimate interests of the business world. The result is a consumer-friendly, yet at all times balanced, interpretation of the rules on consumer sales and the right to cancellation. Only when it comes to the Unfair Commercial Practices Directive does the Court appear to have neglected the legitimate interests of advertisers in its interpretation.
• The domestic courts are obliged to raise the rules of consumer law ipso jure where they are in possession of the necessary data and to apply them, unless the consumer expressly waives these rules after having been informed of their possible applicability - and subject to protecting the rights of the defence. In creating this obligation on the part of the domestic courts, the CJEU relies on the principles of effectiveness and equivalence. By its broad interpretation of these requirements and its applicability in every type of judicial proceeding, the Court, even though it continues to observe procedural autonomy as a basic principle, is in fact harmonizing the law of procedure in consumer disputes – something which European legislation has not been able to achieve.
• Applying the rules on unfair contract terms should have a deterrent effect, which means that an unfair contract term cannot be mitigated, not even voluntarily by the business in question, and that, once such a term has been annulled, there is no longer any scope for applying rules of supplementary law which are not to the consumer’s advantage. This serves to penalise those businesses which use unfair contract terms, since they will thus benefit less that if there had been no unfair term at all.
• Passengers suffering long delays in flights have been put in the same position as passengers of delayed flights who have been offered an alternative flight, so that they too have a right to compensation (unless the delay has been caused by extraordinary circumstances which could not have been reasonably avoided). It is worth noting that the Court has reached this conclusion after having actively sought out an unclear clause in the Directive in order subsequently to interpret it in compliance with the principle of equality. Close Summary |
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Hiërarchie der remedies in de consumentenkoop: EU vs. VS JANSEN, S.The Hierarchy of remedies in consumer sales: EU v. US
The starting point of this contribution is that there is some confusion and dissatisfaction about the fact that consumers can rely on certain sales remedies more easily than is the case with other remedies available in the EU and US. This preference for one remedy over the other causes a so-called hierarchy to arise between the remedies: a remedy that is more readily available is given a higher status in the hierarchy than is the case for the others. A hierarchy entails that some remedies cannot be easily relied upon, which could give rise to frustration. In the US, damages are the preferred remedy owing to the irreparable injury rule whereas in the EU there is a strong preference for remedies oriented towards performance, such as replacement and repair.
On the one hand, the irreparable injury rule – preferring damages over specific performance – has created a substantial body of literature in the US which examines the strengths and weaknesses of this rule. It is a fact that it has attracted the attention of specialist authors on law and economics and legal philosophers – and more recently, behaviorists have also expressed an interest in this topic. One particular author has even announced the “death of the irreparable injury rule”; the latter, however, continues to apply in US common law of contracts and in the UCC (albeit in a mitigated form).
On the other hand, many authors in the EU, as well the EU legislature, strongly believe in the virtues of specific performance. The contractual obligation must in the first instance be met by performing the contract itself. This preference has led to the introduction of a strict hierarchy of remedies in EU consumer sales regulation, in which repair and replacement are a right conferred not only on the consumer but also on the seller. The fact that the consumer also has to respect this hierarchy of remedies could give rise to inadequate consumer protection, since it does not sufficiently take account of the consumer’s weaker position.
Because both systems – i.e. those in the US and the EU – contain imperfections, the author of this contribution proposes a free choice between the available consumer sale remedies. This would entail that the consumer could choose between termination, price reduction, damages and specific performance. Only where such a choice clearly conflicted with the choice that any reasonable and careful consumer would have made, could the court intervene and propose a different remedy. Close Summary |
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Weg met De Page? Leve Laurent? Een pleidooi voor een andere kijk op de recente geschiedenis van het Belgische privaatrecht HEIRBAUT, D.Away with De Page ? Long live Laurent ?
A plea for an alternative view of the recent history of Belgian private law
An election held in 2009 crowned Henri De Page (1894-1969), who wrote the authoritative Traité élémentaire de droit civil belge, as the greatest-ever Belgian legal scholar. In sharp contrast to the laurels heaped on De Page stands the image of François Laurent (1810-1887), whose Principes was the seminal text for the Belgian private law until the publication of De Page’s Traité. Laurent’s image has been tarnished by the excessive regard he had for the text of the Code civil and by his rabid anti-clericalism. However, the only way to obtain a true picture of De Page’s writings is to examine Laurent’s work more thoroughly.
Laurent’s perception of the private law emerges, not from his Principes, which bound him to the format of a commentary to the Code civil, but from his own draft proposal for a new Civil Code for Belgium. For this project, Laurent had a free hand and in many respects this Avant-projet confirmed Laurent’s image as a hater of Catholics. His anti-clericalism is one of the reasons why his proposal was never converted into law. However, there is another side to this story. In his proposal, Laurent also showed concern for the well-being of the working classes at the expense of the bourgeoisie which then dominated the Belgian Parliament. In addition, his family law proposals were 100 years ahead of his time as regards women’s rights, which was also a hard pill to swallow by the politicians of the day. The nation’s judges also had reason to come out against Laurent. Although portrayed as a slavish worshipper of the statute law who paid no heed to the case law, it appears that Laurent had a first-class knowledge of the latter and for that reason subjected it to intense criticism. He was especially critical of the authority exercised by the Hof van Cassatie (Supreme Court). That he cannot in any way be pigeon-holed as a slave to exegesis whose scope was restricted to the French Code civil is also clear from his extensive knowledge of foreign law. Accordingly, whilst some criticism may rightly be levelled at him for his heedless pursuit of his ideological agenda, one should at the same time find some admiration for his progressive views, his critical approach towards the courts, and the attention he paid to foreign law.
When Henri De Page’s Traité appeared, it was quick to knock Laurent’s Principes off its pedestal. However, the success enjoyed by this work does not in any way mean that it was lacking in ideological underpinning. That much can be gauged from the various forewords to the Traité and from the author’s works on legal theory and legal philosophy. He opposed Laurent’s exegetic methods, of which he drew a very negative picture. As an alternative, he advocated an approach based on sociological legal positivism, under which the courts would base the law on social realities. In truth, however, it emerged that it was the case law, rather than society, which was De Page’s legal source. In this regard, De Page adopted a less critical stance than did Laurent, and defended the prudent approach adopted by the Belgian courts. This assessment of the courts was consistent with De Page’s political views. He regarded the courts as protectors of the bourgeoisie against a parliament elected by universal suffrage, and was opposed to any excessive protection of the weaker in society. The success enjoyed by De Page’s work was not unrelated to the tributes he paid to the courts, in particular the Hof van Cassatie. Another factor that played a part was his membership of the Standing Committee of the Council for Legislation (Bestendig Comité van de Raad voor Wetgeving), which brought him into regular contact with the highest judges in the country. De Page’s differences with Laurent were not restricted to his approach towards the courts. Thus, in contrast with Laurent, De Page had but little knowledge of foreign languages, which was a considerable handicap for his endeavours in comparative law. (The fact that De Page had no German also allows us to clear him from any unwarranted accusations of sympathising with the German occupier during World War II.) The contrast between Laurent and De Page expresses itself at its sharpest in the field of family law. De Page is in favour of maintaining the existing order, as can be seen from his defence of the rules discriminating against extra-marital children. He favoured the subordinate position of married women, but was ultimately compelled to adjust his position once the law had abolished the husband’s marital authority, although he left no-one in any doubt that he had preferred matters to remain as they were in this regard.
Even though the comparison drawn in this paper is confined to two, albeit highly eminent, personalities, the question can be asked whether it could possibly reveal a more general trend. In other areas, such as the commercial law, it is possible to note that the Belgian law of the 19th century was at times more creative than it was during most of the 20th. Exactly how representative Laurent and De Page were is an issue remains a challenging task for legal historians; at all events, it is clear that the time is ripe for a reassessment of the Belgian private law following Napoleon. This may be all the more necessary if the proposed new Civil Code shows itself capable of closing the current chapter in the history of the Belgian private law which started in 1804. Close Summary |
323 |
Rechterlijke handelshuurprijsherziening en -bepaling "naar billijkheid": een exploratieve casestudy BAECK, J., CLAEYS, I.The review and dertmination of commercial lease rentals
by the courts based on equity - an explorative case study
In commercial lease contracts, as a rule, parties freely determine the rental price when concluding the contract. However, under certain circumstances, a party to a commercial lease contract may request the court to impose a new rental price, both in the course of the performance of the lease contract and upon renewal of the commercial lease. In that case, the legislator requires the court to decide “in equity” on the new rental price.
In order to find out how courts (should) make use of this power to decide “in equity”, the authors first conducted an in-depth analysis of the parliamentary proceedings relating to the legislation on commercial leases, in order to discover the lawmaker’s precise intention. This analysis shows that the legislator’s references to equity were merely intended as an ultimate resort, viz. where no appropriate points of comparison are available to assess the normal rental value.
The authors then conducted an empirical analysis which sought to discover whether, in practice, the courts use their equity powers in line with the lawmaker’s intention as discovered in the analysis of the parliamentary works.
This empirical analysis was performed in two stages. First, the authors examined all the cases brought before, and decided by, the five district courts of Ghent, between 2010 and 2016. They then interviewed the three experts who were commissioned by these court to submit their findings on the value of the leased property in these cases.
The number of cases where the district courts were called upon to decide on a new rental price, was revealed to be very small. Also, among the cases which did actually result in a decision on the rental price, only one was decided on equitable grounds. This finding is consistent with the relevant parliamentary proceedings which indicate that equity is merely intended for disputes in which exceptional circumstances prevail.
The analysis conducted by the authors is, essentially, exploratory. Accordingly, the general conclusions drawn from their findings, need to be assessed against a broader sample of court decisions. Nevertheless, it is to be expected that the decisions of other district courts on this matter will be similar to those made by the Ghent district courts. Close Summary |
367 |
Boekbesprekingen S. VERBIST
H.J.S.M. LANGBROEK EN M.W. SCHELTEMA
R. SCHULZE EN F. ZOLL
J. CARTWRIGHT
I. DE MEULENEERE, A.S. PIJCKE EN M.
E. GOOSSENS
S. MATTHÉ
A. VAN DEN BROECK
H. CASIER
P. DAUW
P. THIRIAR, B. VANLERBERGHE, J. LAENENS, D. SCHEERS EN S. RUTTEN
C. VAN SEVEREN
A.L. VERBEKE EN F. BUYSSENS
A. BEECKWEE EN S. VANDERHEYDE
D. DE RUYSSCHER, K. CAPPELLE, M. COLETTE, B. DESEURE EN G. VAN
ASSCHE
A. GROTEN
J. SPRUIT, J.M.J. CHORUS EN C.H. BEZEMER
U. KISCHEL
J. BAECK, J. CALLEBAUT, M.E. STORME
|
409 |
Ten geleide bij 2017-2/3 SAGAERT, V. |
411 |
In subsidiaire orde De Redactie Privaat STORME, M.E. |
417 |
De gewoonte in het Nederlands en Belgisch economisch privaatrecht (19de-21ste eeuw) DE RUYSSCHER, D. & IN 'T VELD, M.Customary rules in commercial law
in the Netherlands and belgium (19TH to 21ST Century)
This contribution draws a distinction between three types of commercial practice. Usages-règle (legal customs) are customary practices in the sense that they constitute repeated conduct based on the belief that it is legally valid. Very often these practices have a limited scope and are regarded as supplementing the relevant legislation. Usages-présomption (or usages conventionnels) are commercial practices which are intended to give concrete form to, and supplement, arrangements between contracting parties. Where commercial practices are treated as usages-principe, they are regarded as open rules which are capable of interpretation by the courts. Usages-règle were promoted by the Historical School in the early 19th century. Previously, commercial practices had frequently been treated as usages-principe, in that they were regarded as being narrowly linked to principles which were equated with “custom and practice” and could be derived and confirmed from various legal sources. From the end of the 19th century, commercial practices were predominantly regarded as usages-présomption in France and Belgium. In the Netherlands, on the other hand, their status as dogma became less significant, which was linked to the courts’ increased discretion in interpreting and supplementing contracts. Accordingly, Belgium needs a legally dogmatic approach towards commercial practices much more urgently than is the case with the Netherlands. However, in spite of all the fine distinctions drawn between customary practices, legally-binding customs and “usages conventionnels”, they remain subject to the parties’ freedom to contract, and the qualification of such practices as rules has, in practice, not been completely achieved. In spite of the trend towards objectification when it comes to applying commercial practices, the traditions referred to above continue to prevail. Close Summary |
455 |
Relatieve beëindiging van onroerende beperkte zakelijke rechten VERHEYE, B.Relative termination of limited real property rights
This contribution provides in the first instance a thorough overview of the grounds for termination with relative effect. The author examines the following grounds for termination with relative effect in this context: relinquishment, amicable termination, termination with notice, confusion, forced termination on grounds of misuse of powers, termination based on a change in circumstances (for building rights and land leases under Dutch law) and, finally, termination for breach of contract.
As regards the latter (which is an extraordinary ground for termination) the author, on the basis of recent doctrine (but contrary to traditional theory), defends the position that this ground definitely has relative effect, and as such constitutes an exception to the rule in Article 74 HypW (Law on Mortgages and Re-mortgages). In support of this thesis he advances a number of arguments – e.g. the fact that amicable termination is also deemed merely to have relative effect, or the argument based on Article 28 HypW. However, for termination for breach of contract to have relative effect, it is a requirement that the third-party recipient (a) was unaware of the breach of contract in question, whether as a matter of fact or by a marginal note in the application for termination (Article 3 HypW of Article 28 HypW), and (b) was not himself the cause of the breach.
Secondly, this paper focuses attention on the relative effect theory by devising a new explanatory model for the latter. Firstly, the author shows that the traditional explanatory model for this relative effect theory, based on the right of disposal (or its absence) on the part of the usufructuary, holder of building rights or land-leaseholder is coming under increasing challenge. This is why he proposes an alternative explanatory model which is based on the theory of protection of acquirers in good faith; in so doing, the author takes an in-depth look at the bona fides requirement and relates it to the two principles on which protection of third party acquirers is based. Thus he demonstrates that our legal order in fact acknowledges a “hidden” rule of third-party protection in connection with the acquisition of real property. The author then examines this discovery in the light of the two explanatory models referred to, and notes that both these models approach the same phenomenon from a different vantage point, whilst at the same time reinforcing each other. Taken together, both models enable a better understanding of the relative effect of certain grounds for termination. Finally, the author demonstrates that this alternative explanatory model is also valid when viewed in the comparative context of French and Dutch law. Close Summary |
529 |
Die soepelheid van die eiendomsbegrip in die trustreg DE WAAL, M.The flexibility of the ownership concept in the law of trusts
The trust as an institution that has developed in the common law and in some of the mixed legal systems (such as South Africa, Scotland and Quebec) is characterised by its pervasiveness in a wide range of personal and commercial contexts. This means that the trust in its true form can be employed in a wide range of contexts and for a variety of purposes, thus displaying what has been described as its “chameleon-like” quality. This contrasts with the trust in its “diluted” form (as frequently encountered in Continental Europe), which features some trust-like properties, but lacks the flexibility typically associated with the common-law trust as described above.
It is argued that the flexibility of the trust in its true form is facilitated by, inter alia, the flexibility in the notion of ownership in the law of trusts. In relation to the South African trust model, this phenomenon is illustrated in at least three specific areas of trust law. The first concerns the basic principle that, in civilian or mixed legal systems, the trust is not based on split ownership between the trustee and the trust beneficiary, but on the notion that the trustee owns assets in two separate estates (or patrimonies), i.e. the trust estate and the trustee’s personal estate. Ownership in these two estates is treated in a remarkably flexible fashion – thus, for example, it enables the courts to craft new remedies in instances of so-called trust abuse. The second area concerns the very basic question as to where ownership must be vested in a trust. Here, South African law recognises a very peculiar trust type – the so-called bewind trust – under which ownership is vested not in the trustee, but in the trust beneficiary. This shift of ownership towards the trust beneficiary contributes to the flexibility of the trust institution and facilitates the use of the trust in new areas. The third area deals with the type of joint ownership that exists among co-trustees in a trust where there is more that one trustee (which is normally the case). In South Africa, the traditional forms of co-ownership do not explain the automatic transfer of ownership to co-trustees in the event of, for example, the death of one of the trustees. Research has shown that South African law has in this context probably accommodated the English law concept of joint tenancy, with its corollary of the rule of survivorship. This would explain what happens among co-trustees in the circumstances described and it once again illustrates the ability of the trust system to depart from established norms as far as ownership concepts are concerned.
It nevertheless remains a challenge to explain the flexibility in the concept of ownership in the law of trusts. In South Africa, this is sometimes done by attaching certain labels to the trustee’s ownership, such as “bare ownership”, “ex officio ownership” or even “legal ownership”. Other attempts have focused on the concept of “fiduciary ownership”, unpacking it in the context of trusts. However, an extremely useful insight has been that provided by those authors who have argued that the common law has been able to accommodate the trust in its “true” form because of its “anti-conceptual” approach to property or, put differently, “its power to break fundamental rules of the legal system within which it operates”. It is argued that South African law has shown the capacity to do exactly this with regard to its treatment of ownership in the law of trusts. This capacity has probably been facilitated by the fact that the English common-law trust was initially received into South African law, but later transformed in a pragmatic (and typically common-law) case-by-case fashion to align itself with well-known civilian institutions already recognised in the system. Close Summary |
563 |
Juridische aspecten van blockhain en smart contracts TJONG TING TAI, E.The legal implications of Blockchain and smart contracts
Bitcoin was conceived as a replacement for banking payments, and is based on the so-called blockchain technology. This technique makes it possible, on a decentralised and secured basis, to make anonymous payments which are stored in a decentralised database. The technique involved should ensure that its administration, i.e. the database in question, is incapable of being tampered with. Various applications of this technique have been proposed, such as replacing the Land Registry by a blockchain. Smart contracts are another example of this trend. These agreements are based on the notion that computers are also capable of tackling more complex forms of conditional transactions. Because a bitcoin-like system is capable of effecting payment via the blockchain automatically where certain conditions have been met, this provides an opportunity for ensuring performance. In addition, it has been suggested that, because the blockchain cannot be located in any specific country or computer, and therefore is difficult to control by legal – or any other – mechanisms, transactions based on smart contracts constituted a system which operated outside the law. The law was incapable of controlling it, so that the code governing smart contracts has taken the place of the relevant legal rules.
The practice of smart contracts has raised a number of legal issues, such as their jurisdiction and the law to which they are subject, as well as issues of contractual interpretation and liability.
However, practice in this area has turned out to be less radical than has been claimed. It has transpired that there are, in fact, various means by which smart contracts can be challenged. Thus when it comes to important transactions, the parties involved may agree to apply different rules which will make an undesired contract inoperable. Also, smart contracts are not used exclusively as a comprehensive alternative to ordinary contracts, but are also used as part of the mechanisms for performing an ordinary framework contract.
Apart from this, smart contracts also give rise to a number of questions in relation to performance. The law of contracts contains many rules which are conducive to fair outcomes – whether or not by agreement between the parties concerned, and taking into account the facts underlying the case. It is difficult to formulate such decision-making processes in the shape of rules which are capable of being performed by smart contracts. It would seem that the use of smart contracts can cause the loss of certain types of legal protection (such as the right to suspend performance, or to claim compensation). Nevertheless, smart contracts can, in practice, constitute a sensible solution – such as in the case of long-distance agreements under which it would be too unwieldy or expensive to provide authentic legal protection for the consumers affected.
Finally, the formalisation which is necessary in order to include legal rules in smart contracts can be a rational exercise which may produce an insight into the essential structure of the law of contracts. Close Summary |
609 |
Recht in balans. Pleidooi voor een meer holistisch (proces)recht VOET, S.The law in the balance -
A plea for a more holistic approach to (procedural) law
This contribution is the printed version of an address held on 31/3/2017 on the occasion of the acceptance of the TPR Annual Rotating Chair for 2016-2017 at the University of Utrecht.
The judicial machinery is currently in the doldrums. Three symptoms have been highlighted as a basis for this paper – (a) the negative image conveyed by the judiciary, (b) the haunting judicial backlog spectre, and (c) the truculence displayed by certain players on the judicial scene. The traditional medicine for this malady has been to adjust and update the rules of civil procedure. Although such changes in the law have some merits, and are inspired by noble objectives, they fail to provide us with any structural solutions. The same applies to a variety of other alternative medications, such as conciliation, mediation and arbitration. Although it remains necessary to stimulate, optimise and facilitate such alternatives, the successes they reap remain on a limited scale.
But these are the old techniques. Recent years have witnessed the rise of certain new technologies – a rise that can be inserted into a new paradigm. The new divide is between alternative or optional methods of alternative dispute resolution (ADR) as such on the one hand, and the quality they provide on the other hand. The key questions are how these old and new technologies can be made to operate at their most optimal and efficient level, and how they could and should interconnect and interact.
Citing a number of examples, the author examines two new techniques, i.e. consumer dispute resolution (CDR) and regulatory redress, i.e. redress offered or encouraged by public invigilators and regulators.
The judicial machinery and those who decide its policies should explore these new possibilities, and above all emphasise the need for the interconnection, interaction and integration between these various models. The author illustrates this by several examples – the preliminary ruling technique, the devolution of civil claims by the criminal courts, actions for declaratory judgments or injunctions, feedback loops between ADR bodies and their supervisory authorities, conferring judicial standing on supervisory bodies, and the new Belgian procedure for the collection of undisputed civil claims (payment orders).
Equally essential is the creation of an overarching conceptual framework. Guiding and general principles must be used as beacons in order to guarantee the quality of these old and new technologies.
This contribution concludes with a case study on mass harm. In addition to private class actions, extra-judicial and alternative avenues can also be highlighted here. Close Summary |
655 |
Overzicht van rechtspraak. Familierecht (2012-2016) VERSCHELDEN, G.; BOONE, I.; BROUWERS, S.; DE SCHRIJVER, L.; VAN THIENEN, A. |
1109 |
Boekbesprekingen J. van de Bunt; S. Lust; L. Barnich, A. Culot, P. De Page, I. De Stefani, J. Fonteyn, P. Moreau en M. Van Molle; R. Barbaix; P. Lecocq, S. Boufflette, A. Salvé en R. Popa; J. Schellerer; A. Van Oevelen, J. Rozie en S. Rutten (eds.); F. Coomans (ed.); B. Van den Bergh; K. Barker, K. Fairweather en R. Grantham (eds.); F. Limbach; S. De Dier; K. Hopt, H. Kanda, M. Pargendler, W. Ringe, E. Rock, R. Kraakman,
J. Armour, P. Davies, L. Enriques, H. Hansmann, G. Hertig; G. Comparato; C. De Koninck; H. Nieuwenhuis
|
1143 |
Ten Geleide STORME, M. E. |
1147 |
Omzien en vooruitzien De redactie privaat WISSINK, M. |
1153 |
Excuseer?! Afgedwongen excuses in het aansprakelijkheidsrecht DE REY, S.Sorry?!
Compelled apologies under the law of torts
Empirical studies have shown that in some cases the victims of a tort will seek, in addition to damages, recognition of the unlawful action committed by the tortfeasor, and of the emotional injury this has caused. This is why they will seek an expression of sympathy and apology in addition to monetary compensation. This is especially so in cases where the victim’s identity has been affected, or where his/her reputation or personal integrity in society in general, in public life or in a particular community has been damaged (e.g. where the result has been discrimination, unlawful dismissal, or a breach of certain personality rights). In such cases, an apology will have three purposes: redress (of emotional damage), recognition (of victimhood and suffering) and signalisation (of unacceptable conduct, shared values and rehabilitative effect).
Because of its potentially healing effect, some legal systems enable the courts to order the tortfeasor to make apology. This is because empirical studies have demonstrated that even non-voluntary apology is capable of meeting the three purposes mentioned above. In some countries, the right to enforce apology is laid down as a general remedy in tort – as is the case in China – or imposed as a remedy for specific torts (as is the case under the laws of discrimination in certain South African provinces and Australian states). In other jurisdictions, such as Switzerland, it is the courts that have recognised the right to order apology, even though there has been no legislation which lays down this opportunity. In other jurisdictions still, where the right to order apology is accepted by neither legislation nor the courts – as is the case in The Netherlands – a growing number of authors are advocating this remedy. All these legal systems regard the ordering of apology as a form of equitable relief for emotional injury. It is no coincidence that it is the common law jurisdictions which, departing from their traditionally pecuniary approach towards legal redress, have expressly embodied apology as a legal remedy in appropriate legislation, and have accordingly led the field in developing this type of legal redress for others to follow.
Under Belgian law, the right to enforce apology is neither laid down by legislation nor applied by the courts. Nevertheless, enforcement of apology could also be qualified as a form of equitable relief for emotional injury under Articles 1382-1383 of the Belgian Civil Code. The argument that is frequently raised against this is that a tortfeasor who is compelled to apologise against his/her will has had his/her right to freedom of expression breached. However, this argument has been rejected by the European Court of Human Rights. Enforcement of apology is capable of meeting the test of Article 10 of the European Convention on Human Rights. In order to make a proper assessment in such cases, the courts must engage in an additional weighing of interests which is not directly based on the law of torts and reaches a good deal further than the ordinary test laid down for abuse of law. This is because the court must judge whether the apology applied for by way of redress is, given the circumstances of the case, relevant, necessary and proportionate. The conditions to be met for the award of compensation for the commission of a tort are therefore necessary, but not sufficient in this case.
The court may determine the substance of the apology to be made (precise wording – formulation made freely or to be agreed between the parties) or to specify its formalities (place, time and length of publication, or bilaterally). It may also combine this with other remedies (equitable or pecuniary relief), on condition that the integrality principle is observed, and, where appropriate, may order apology subject to penalty payments. However, this will not be of much avail if in the meantime too long a period has elapsed, if the apology would merely intensify of prolong the conflict, or if the tortfeasor continues to deny his/her unlawful act even though it has been confirmed by law. Close Summary |
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Verstorend procesgedrag: doeltreffend sanctioneren voor een efficiënte procesvoering DE JAEGER, T.Disruptive practices in litigation:
effective sanctions in view of efficient court proceedings
Efficient judicial proceedings require careful and rational forethought from claimants, before initiating court proceedings; and, afterwards, litigants who apply the rules of procedure correctly. Failure to comply with these requirements is, in certain cases, sanctioned in procedural terms by law, but does not invariably – or to the extent necessary – serve to redress the loss incurred. This is why it is vital to have available a financial mechanism that is capable of effectively sanctioning disruptive and obstructive practices in litigation. In this contribution, the author concludes that the existing framework of rules is inadequate, and proposes a new formula which is attuned to the specific nature of court proceedings and enables effective action to be taken against such disruptive and obstructive practices.
The starting point for this contribution is a recent change in legislation that allows winning parties to be ordered to pay costs where they have caused unnecessary expense by negligence or design. The author demonstrates that this reform has added no benefit whatsoever, given that the legislation in question continues to cleave to the error of substantive law requirement, which was already applicable before the legislation was adjusted.
Relying on in-depth analysis in Dutch legal literature, the author advocates the introduction of a new rule – the prohibition of disruptive practices in litigation. Every decision to initiate court proceedings (litigation decision) and every action committed during court proceedings (pendente lite practices) should be assessed against four criteria: time, cost, quality of outcome and procedural benefit. Where the additional time or expense caused by the practices in question is not reasonably expected to lead to a better outcome and/or improved procedural benefit, or where such a better outcome and/or improved procedural benefit could also have been reached through less burdensome practices, this will constitute a disruptive practice in litigation. Such practices cause loss to the other party (micro-procedural detriment) and/or damages the conduct of court proceedings (macro-procedural detriment). Where the loss or damage cannot be redressed by means of procedural sanctions, or by such means alone, it will be necessary to resort to financial redress. An examination of the currently applicable rules on redress (Article 1382 Civil Code and Article 780b Judicial Code) indicates that neither of these remedies is adequately attuned to the specific nature of civil court proceedings. There is therefore a need for an alternative which is geared to the characteristic features of civil court proceedings.
In order to achieve this, the author proceeds in three stages. Firstly, he describes the objective of his proposal as loss redress and prevention. Secondly, he examines how this goal can be achieved in the light of the procedural context. In so doing, the author examines, thoroughly and purposively, the question of who shall be bound to pay for any loss caused by micro-procedural or macro-procedural detriment, how such loss is to be assessed, and who shall be entitled to receive any compensation thus awarded. Various authorities and recent laws are relied on in order to achieve loss prevention, as well as loss compensation. Thirdly, the author focuses on the way in which the proposal should be operated smoothly, without falling into the “trial within a trial” trap. Finally, the author makes a concrete proposal for an amendment to Article 780b Judicial Code. According to the author, the proposed rule guarantees an effective, and at least improved, method of acting against disruptive and obstructive practices in litigation. Close Summary |
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Schadevergoeding bij ontbinding: terechte suprematie van het positieve belang VERKEMPINCK, B.Compensation for contract rescission -
performance interest rightly takes precedence
Assessing additional compensation for contract rescission is a subject which has become an increasingly prominent item on the scholarly agenda in recent years. There is no provision in the Civil Code which regulates how far any such compensation should extend. Nevertheless, ten years ago, the Supreme Court (Hof van Cassatie) clearly ruled that any additional compensation should serve to put the creditor into the position he/she would have been in if the debtor had met his/her obligations.
This issue reveals a clear fault line throughout western Europe. In Portugal and Switzerland, rescission compensation extends to compensating the so-called reliance interest. As a result, some Belgian authors have adopted the view that, carrying this theory to its logical conclusion, the defaulting contracting party has no obligation whatsoever to provide compensation for the performance interest. According to this view, the requirement that contractual rescission by itself should seek to place the contracting parties in the position occupied prior to the conclusion of the contract affects the extent of any complementary compensation payable. Compensating the reliance interest thus serves to restore the pre-contractual situation sought, which is the object of compensating the direct impact of rescission. On the basis of this conceptual requirement that the main remedy should be consistent with the additional remedy, payment of the complementary compensation by itself would enable the defaulting contracting party to place the disadvantaged party in the position he/she would have occupied if the agreement had never been concluded in the first place.
This theory, however, has a significant impact on the size of the compensation which is claimable by the disadvantaged party. It has, moreover, ominous implications for a number of fundamental principles of the law of contracts, including the binding nature of the contract and the legal certainty requirement which underlies it. More particularly, rescission does not amount to negating the existence of a contractual relationship. Nor does it affect the basic rules of contract, but merely impacts the contractual obligations. Its retroactive effect provides a technical explanation for the restitutions involved, but has no implications for any complementary compensation. Also, rescission differs fundamentally from voidance, so that there is no need to draw comparisons between the complementary compensation involved in each case. In addition, the legitimate expectations of the contracting parties are deserving of protection, and rescission should not be regarded as an erroneous choice on the part of the disadvantages party, since in many cases it represents an imposed choice.
The conclusion therefore has to be that, without a shadow of a doubt, even in the case of rescission, compensation for non-performance is intended to place the disadvantaged party in the position he/she would have occupied had the contract been performed. Accordingly, the Belgian Supreme Court should be extremely wary of allowing itself to be influenced by the highly dubious Swiss/Portuguese school of thought. The Belgian lawmaker would do well to endorse the position adopted by the Supreme Court by including in the Civil Code a rule making the performance interest capable of compensation in the event of contract rescission. Close Summary |
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Incoherentie verenigd. Privaatrechtelijke concepten onder druk van Europees financieel recht HAENTJENS, M.The incoherent united - Private law concepts under pressure
from European financial law
Post-crisis European legislation has penetrated the member states’ legal orders even more deeply than was the case previously. This also has implications for private law at the national level. One could go even further and state that recently-enacted European financial law has impacted all the traditional areas and key concepts of private law.
Thus it emerges from recent CJEU decisions that the Court’s interpretation of the notion of “agreement” is different from that which is currently applied in the private law of the Netherlands. Contrary to the approach adopted under Dutch law, the CJEU has recently ruled that the relationship between the issuing institution and the bond holder is no longer that of an agreement.
As regards the concept of “tort”, there has in the meantime arisen a whole range of European laws, all of which more or less explicitly encroach on the field of the national law of torts. In the case of the Regulation on Rating Agencies (CRA III) and the Regulation on Packaged Retail and Insurance-based Investment Products (PRIIPS), even the basis for a tort claim is regulated at the European level. With other European instruments that effect will make itself felt through the effectiveness principle, even though it would appear that, to a large extent, the domestic law of torts remains capable of operating independently. Nevertheless, the substantive rules governing the domestic law of torts increasingly bear the stamp of European legislation.
The key concept of “ownership” has also felt the impact of European financial law. The introduction of Article 7:55 in the Civil Code of the Netherlands shows that the implications of the Financial Collateral Directive (FCD) for fiduciary transfers of ownership and therefore also the law of property had not been fully understood. Under Belgian law, the implementation of FCD led to the recognition of fiduciary transfers of ownership, which has restricted the rights of the acquirer in property law terms. Thus European financial law has caused a situation whereby the key concept of “ownership” under private law is no longer automatically “the most absolute” or indivisible right.
European financial law has also resulted in two key concepts of the Dutch law of debt recovery, to wit the indivisible nature of assets and the paritas creditorum principle, no longer applying in their absolute form. The Regulation on OTC derivatives, central counterparties and trade repositories (EMIR), the Undertakings for Collective Investment in Transferable Securities Directive (UCITS), and the Alternative Investment Fund Managers Directive (AIFMD) have led to the introduction of new separations of assets in the Act on Book-Entry Securities and the Act on Financial Supervision. In addition, the implementation of the Bank Recovery and Resolution Directive (BRRD) in the Law on Bankruptcies has rendered the paritas creditorum rule, in a formal sense, redundant.
It can be expected that the effects of European financial law on the domestic private law will not end as of today. A less coherent, but more harmonised, domestic private law of European origin is, and will be, its outcome. Thus we will see the “incoherent united”. Close Summary |
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Overzicht van rechtspraak. Verbintenissenrecht (1992-2017), Bronnen van verbintenissen (Deel I): Zaakwaarneming, onverschuldigde betaling en ongerechtvaardigde verrijking CLAEYS, I., CORYN, F., VAN VALCKENBORGH, L. |
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Boekbesprekingen L.F. VAN HUYSSTEEN, G.F. LUBBE EN M.F.B. REINECKE; C. DE WULF; X. DIEUX EN D. WILLERMAIN; G. MCCORMACK, A. KEAY EN S. BROWN; M.E. STORME (ED.); N. TOLLENAAR; V. PAUMEN, T. VAN POUCKE, S. HUYGEBAERT EN G. MARTYN; S. M. BAINBRIDGE EN M.T. HENDERSON; S. COOLS; M. FONTAINE; G. KLEINHEYER EN J. SCHRÖDER (EDS.)
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