7.4 Application of reasonableness and fairness by the court of its own motion

The key subject in the second last chapter of this book was the application by the courts of reasonableness and fairness of their own motion. The main question in that chapter was whether the mandatory character of reasonableness and fairness as a norm of conduct (as established in Chapter 1) might entail the courts having to ascertain beyond the ambit of the legal dispute of the parties, as and when necessary, that reasonableness and fairness results in an amendment of any kind of the agreement. It was argued that an overall, affirmative answer to such a question cannot be given. With reference to the principle of due process - it was stated in Chapter 1 that this principle is the counterpart of reasonableness and fairness in procedural law - it was argued that although it is true that the principle of reasonableness and fairness is an indispensable norm of conduct in the legal community, and that this entails this conceptual dyad being considered mandatory, it does not yet imply that its enforcement in court would also always be a matter of general interest.

With reference to article 3:12 of the Dutch Civil Code, which functions as a link between individuals and the legal community, it was subsequently argued that the principle of reasonableness and fairness, depending on the circumstances of the case, sometimes (primarily) serves the interest of the parties themselves (in which case it is not a matter of public policy) and sometimes (to a significant extent) serves the interest of society as a whole (in which case it is a matter of public policy). If and when the principle of reasonableness and fairness is a matter of public policy (and is therefore applicable without regard to the ambit of the legal dispute) therefore depends on the circumstances of the case. If the principle is a matter of public policy, the courts apply, if necessary, the principle of reasonableness and fairness without regard to the ambit of the legal dispute. The courts of their own motion not applying unfair terms as defined in Directive 93/13/EEC of 5 April 1993 was given as an example of the courts acting of their own motion.

When the principle of reasonableness and fairness is not a matter of public policy in the given circumstances - which is the usual situation - the parties themselves have to actively assert their own rights. This also corresponds with the role of reasonableness in society. After all, reasonableness includes an obligation to account to someone else for one's own conduct, when requested to do so. Civil actions are pre-eminently a place for doing this, a place where persons with legal rights as members of the `community of reasonable persons' have to be responsible to each other for their statements and conduct and, when requested, to be held accountable for them towards one another (and towards the community) It was argued that the courts taking the initiative in this matter of their own motion (read: without being asked to do so) would in essence mean that the autonomy to which the parties in principle are bound (which duty is also in accordance with the requirements of reasonableness and fairness) is ignored, but would probably also undermine the normconsciousness in respect of reasonableness and fairness: it is primarily the duty of the parties themselves as members of the community to again and again confirm and to instil the existence and the meaning of that norm to and in each other.