7.3 Imprévision and the requirements of reasonableness and fairness

The distinction between both views on reasonableness and fairness, outlined above, is also a factor in the issue of change of circumstances (imprévision), which was discussed in Chapter 4. This concept, known as `hardship" in international trade, is related to circumstances that deeply encroach on the contractual relationship, that are not taken into account in the agreement and that make the unaltered maintenance of the agreement extremely onerous. In the traditional view of the imprévision doctrine, the focus is on the courts and their role. The courts intervene in the contractual relationship on the basis of reasonableness and fairness; the courts have discretionary powers to modify or set aside a contract; the courts set conditions; the courts are to use their powers with restraint etc. I did not pursue this way of thinking in Chapter 4, but in accordance with the conclusion in Chapter 1, I based my analysis of the effect of reasonableness and fairness on the imprévision doctrine on the reasonableness and fairness aspects as a norm of conduct. Subsequently, I examined to what extent the traditional picture of article 6:258 of the Dutch Civil Code as a kind of 'norm of judicial review" (Ermessensnorm) resulting in the courts having broad discretionary powers required correction from a dogmatic point of view and whether the role and the conduct of parties in the light of the requirements of reasonableness and fairness they have to meet should not have to hold a more prominent place in the analysis of the imprévision doctrine. I answered this question in the affirmative: it was found that the principle of reasonableness and fairness in article 6:258 of the Dutch Civil Code should not so much be construed as a norm of judicial review, but rather as a form of expression of the norm of conduct of reasonableness and fairness within the meaning of article 6:2(1) of the Dutch Civil Code. Because of this norm of conduct of reasonableness and fairness, the parties are obliged -even when unforeseen circumstances occur - to act as reasonable persons towards one another and therefore to take each other's legitimate interests into account. In the unexpected event that the parties fail to meet the requirements of positive law in light of the change of circumstances, positive law unrelentingly does for the parties what they failed to do by themselves. This intervention may take the form of expansions of the contract (art. 6:248(1) of the Dutch Civil Code), or limitations (art. 6:248(2) of the Dutch Civil Code), or a combination of both.

In the event of unforeseen circumstances, the result of the application of positive law to the contractual relationship between the parties may in principle be determined (i.e. ascertained) by the courts, on request, in a declaratory judgment. Some imprévision cases are so complex, however, that according to the legislator they cannot be resolved except by means of a `constitutive" judgment (i.e. a judgment creating, changing or cancelling a legal relationship). Also in these cases, it is the character of reasonableness and fairness for setting a norm of conduct, however, that is the decisive factor for the way in which the contract of the parties must be changed. According to the parliamentary history, the modification or setting aside referred to in the provisions on imprévision in article 6:258 of the Dutch Civil Code is not the result of a judicial opinion regarding reasonableness, but of the requirements of reasonableness and fairness to which the parties are subject. In the case to be submitted to the courts, the courts are only obliged to `concretize' what reasonableness and fairness require from the parties in their relationship. In other words, even if a contract is amended or set aside pursuant to article 6:258 of the Dutch Civil Code, this is not a judicial opinion regarding reasonableness, but the result of the norm of conduct set in article 6:2(1) of the Dutch Civil Code, which provides that creditors and debtors are obliged 'to act towards one another in accordance with the requirements of reasonableness and fairness.'