Janwillem Oosterhuis

Unexpected Circumstances Arising from World War I and its Aftermath: 'Open' Versus 'Closed' Legal Systems

European jurisdictions can be distinguished in ‘open’ and ‘closed’ legal systems in respect of their approach to unexpected circumstances occurring in contractual relations. In this article, it will be argued that this distinction can be related to the judiciary’s reaction in certain countries to the economic consequences of World War I. The first point to be highlighted will be the rather strict approach to unexpected circumstances in contract law that many jurisdictions had before the war – including England, France, Germany, and the Netherlands. Secondly, the judicial approach in England, France, Germany, and the Netherlands to unexpected circumstances arising from the war will be briefly analysed. It will appear that all of the aforementioned jurisdictions remained ‘closed’. Subsequently, the reaction of the judiciary in these jurisdictions to the economic circumstances in the aftermath of the war, (hyper)inflation in particular, will be analysed. Germany, which experienced hyperinflation in the immediate aftermath of the war, developed an ‘open’ system, using the doctrine of the Wegfall der Geschäftsgrundlage. In the Netherlands, this experience failed to have an impact: indeed, in judicial practice the Netherlands appears to have a ‘closed’ legal system nevertheless, save for an ‘exceptional’ remedy in the new Dutch Civil Code, Article 6:258 of the Burgerlijk Wetboek (1992). In conclusion, the hypothesis is put forward that generally only in jurisdictions that have experienced exceptional economic upheaval, such as the hyperinflation in the wake of World War I, ‘exceptional’ remedies addressing unexpected circumstances can have a lasting effect on the legal system.

From legislature to Code? Goal-oriented formalism in French and Dutch cases about marriage and parental authority in the 19th Century

Nineteenth century judicial interpretation in the Netherlands has been characterized as legalistic. This article deals with the question whether this legalistic interpretation witnessed a shift in emphasis during the nineteenth century: from the legislature’s intention with a legal rule to focusing on the literal wording of a statutory rule. Such possible shift from legislature to code has been investigated for judicial decisions about the enforcement of marital duties and parental authority. It appears that in these cases, any judicial method of interpretation eventually sought to serve particular purposes identified by the judiciary itself, here the effective enforcement of marital cases, which did not coincide with either the legislature’s intention or the literal wording of a provision.