7.1 Reasonableness and fairness as the basis for the binding force of contracts

The main subject of the second chapter of this book was the requirement for a contract to have a binding nature. This is a doctrine where dissensus traditionally dominates. Many have raised objections (with good reason) against the more traditional view on the reason why contracts are binding. In the Netherlands over the last few years, Nieuwenhuis, Hijma, Smits, among others, have made various attempts to develop new views on the binding force of contracts to meet these objections. It turned out, however, that essential aspects of the views of these three authors were likewise subject to criticism, as a result of which the need (and the opportunity) arose to search for a new basis for contracts to have binding force. By again reflecting on this doctrine, while bearing in mind the character of the principle of reasonableness and fairness as a mandatory and societally-rooted norm for conduct, as established in Chapter 1, it became possible to develop an alternative view that is simple in nature, does not result in contradictions with the law, and explains the binding force of contract on a community basis. In essence, this view entails the binding force of contracts not being the result of any combination of will, declaration and faith. Through the legal norm of reasonableness and fairness, it is the legal community that imposes on parties the requirement for agreements to be binding. The requirement that agreements have binding force, after all, functions within the principle of reasonableness and fairness as a generally accepted legal principle (pacta sunt servanda) in the Netherlands through article 3:12 of the Dutch Civil Code. However, this requirement is also definitely a current judicial view (opinio iuris) in the Netherlands referred to in that article. The requirement that agreements have binding force is, in short, a generally accepted requirement of respectable and decent conduct, enshrined in the principle of reasonableness and fairness. Great weight is given to this requirement within the principle of reasonableness and fairness: 'after all, reasonableness and fairness first require that promises be kept and only very exceptionally allow changes in those promises...'.1