7.0 Introductie

As stated in the introduction of this book, in this research I have chosen to analyse three doctrines that are primarily related to contract law and in which the principle of reasonableness and fairness plays a prominent role. These three doctrines are related to the binding force of contracts (Chapter 2), the interpretation of contracts, especially commercial contracts (Chapter 3) and the doctrine of the so-called imprévision (Chapter 4). In Chapter 5 I analysed how the court applies the principle of reasonableness and fairness of its own motion. In the introduction to this book, I observed that these subjects could not be studied and discussed until the following threshold question is answered:

I discussed and answered this question in Chapter 1. Various authors hold the view that reasonableness and fairness is a `fully open' or lotally vague' norm for judicial decision-making if it justly resolves disputes in concrete cases. My view is that this view is untenable in light of the pivotal role played by reasonableness in our society as a norm for conduct. Reasonableness is not a concept exclusively reserved for the courts, but is pre-eminently a social praxis, indispensable for creating and preserving the community. The community cannot do without reasonableness. Nor can it do without imposing reasonableness obligations in the community On this basis, each community member is obliged to behave reasonably, i.e. properly and carefully. It has been argued that, because society is also inherently a legal community, the social obligation to act with reasonableness has full effect in that legal community. In the Netherlands, this is reflected in the basic rule enshrined in article 6:2(1) of the Dutch Civil Code: every creditor and every debtor is obliged 'to act towards one another in accordance with the requirements of reasonableness and fairness.'

Next I argued that the principle of reasonableness and fairness stated in article 6:2 of the Dutch Civil Code, contrary to what is sometimes assumed, does not constitute a tautology, but is a conceptual dyad made up of two distinguishable terms, each having its own dimension in setting norms of conduct and each complementing the other. When answering the threshold question stated above, I subsequently took the position that the principle of reasonableness and fairness is primarily to be viewed as a mandatory norm of conduct aimed at the parties.

It is this norm of conduct that is also always applied by the courts. For this application alone, reasonableness and fairness may also be considered a norm for judicial decision-making. The application of this norm of conduct referred to is not a licence for the exercise of judicial discretion (richterliches Ermessen), but always implies the application of unwritten positive law. It is not the personal opinion of the courts that matters, but the mandatory obligation of the parties, rooted in positive law, to act reasonably and fair towards one another. In any given circumstances, this may lead to an expansion of the contractual agreement (under art. 6:248(1) of the Dutch Civil Code) or a limitation of the contractual agreement (under art. 6:248(2) of the Dutch Civil Code). This occurs automatically, by operation of law and without any judicial intervention. Therefore, it is not the courts that supplement or restrict the contract. In the case submitted to the court, the court's role is only to ascertain what the requirements of positive law require from the parties in the case concerned.

Having answered the threshold question above, the study and discussion then turned to the four topics stated above. The leitmotiv for this was this question: to what extent does the choice made in Chapter 1 require a change in prevailing views regarding the role of the courts and the parties in the relevant doctrines? The various chapters led to the conclusion that the answer to the threshold question inevitably required a shift in views.