The Great War and Dutch Contract Law: Resistance, Responsiveness and Neutrality
Comparative Legal History, Volume 2, Number 2, December 2014, pp. 303-324
20 Pages Posted: 2 Jan 2015 Last revised: 12 Apr 2015
Date Written: December 1, 2014
Throughout the Great War, the Netherlands tried frantically to remain a neutral nation between the warring Central Powers and the Entente Forces. Notwithstanding its neutrality, the war left distinct marks on Dutch society and economy. This article argues that it also left marks, both temporary and lasting, on Dutch contract law. Never since the introduction of the Dutch Civil Code in 1838 had the Netherlands been exposed to such a disruptive international conflict as the Great War. Therefore, the war presented the first systemic test of Civil Code doctrines such as impossibility and force majeure. As far as these doctrines are concerned, some have argued that the Great War was no different from other, less disruptive economic events. However, on closer inspection one may find that the application of private law doctrines under war conditions seemed to reflect the Dutch neutrality doctrine. The courts strictly construed and enforced contracts, mostly rejected defences involving 'impossibility' and vis maior, and often held that contracting parties had knowingly assumed the risks associated with contracting during a war. Moreover, the Great War marked the end of nineteenth-century laissez-faire notions in regulatory policies, which in turn caused a gradual shift in balance between public law and freedom of contract. In hindsight, the war can also be regarded as the turning point in Dutch doctrinal thinking on the respective roles of and the relationship between force majeure, unforeseen circumstances and good faith. Another way of looking at judicial application of contract law during the Great War is to consider this as an extension of the Dutch neutrality doctrine. Both viewpoints are explored in this article.
Keywords: Great War, contract law, force majeure, impossibility, Imprévision, War Clauses, Code Napoléon
JEL Classification: K12, K40
Suggested Citation: Suggested Citation