Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/4.2.8.7:4.2.8.7 The supplementary function of reasonableness and fairness

Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/4.2.8.7

4.2.8.7 The supplementary function of reasonableness and fairness

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

218. Since 1992 reasonableness and fairness – the Dutch term for objective good faith1 – is codified in the Dutch Civil Code. Although the concept of reasonableness and fairness serves as the foundation of a number of leges speciales the general norm in Article 3:12BW2, Article 6:2BW and Article 6:248BW – applicable to all juridical acts3 – is a lex generalis that is considered to apply to all legal relationships in patrimonial law.4 The norm is of such a fundamental nature that it is considered to be of mandatory law5 and applicable to all legal relationships in private law.6 In the event that a national provision is disapplied as a result of a substantive compatibility review against Union law and a lacuna occurs in the horizontal legal relationship, Article 6:248(1) BW can be used to find a reasonable solution for the horizontal legal relationship insofar as remaining legislation does not regulate the consequences of the disapplication of the problematic rule: it has a gap-filling function.7 More precisely, Article 6:248(1) BW stipulates that an agreement not only has the legal effects that parties have agreed upon, but also those which, to the nature of the agreement, arise from law8, usage9, or the standards of reasonableness and fairness10.11

219. When a contract containsa lacuna, for instance resulting from the nullity of a clause on the basis of Article 13 WGBL, the lacuna should be remedied – i.e. the contract should be supplemented. With regard to the application of the supplementary function of reasonableness and fairness, and of open norms in general, the law as a whole has to be taken into account.12 When law or usage do not bring solace, reasonableness and fairness is an autonomous source for the supplementation of obligations.13 In supplementing an obligation, the character and the objective of the obligation, the legitimate interests of the parties and the legislative system have to be taken into account.14

Deze functie is alleen te gebruiken als je bent ingelogd.