Hoofdstuk 11 Summary

The subject of this dissertation is the unilateral legal act (eenzijdige rechtshandeling). A unilateral legal act is a declaration of will made by one party, with which he intends to create legal effect, which legal effect arises as a result of the declaration of will of that one party. Examples of legal facts (rechtsfeiten) that match this definition can be found throughout the Dutch Civil Code (DCC). It is difficult to demarcate the concept of the unilateral legal act, because a blurred line exists both between unilateral and multilateral acts and between legal acts and factual conduct (feitelijke handelingen). Although studies have been conducted on specific examples of unilateral juridical acts, a more conceptual outlook is lacking in legal literature and parliamentary history. The central question of this dissertation is what the concept of the unilateral legal act entails. I explore whether patterns can be detected in the application of classic private law dogmas on unilateral legal acts. Is, in other words, qualification as a unilateral legal act a reason for the application of certain rules? Moreover, I consider whether the unilateral legal act should be recognized as a source of obligations.

The aim of this dissertation is threefold. First, I want to show how often one comes across unilateral legal acts in legal practice. Secondly, I aim to contribte to the academic discussion on the unilateral legal act and its position in the system of the law of obligations. Thirdly, I wish to provide legal practitioners with suggestions on how to deal with concrete questions on unilateral legal acts. I have drafted a model, from which generally applicable rules of thumb can de deducted.

After an introduction in Chapter 1, in which I set out the subject of the dissertation, an exploration of the subject follows in Chapter 2. This exploration forms the basis for the rest of the research. After a general explanation on the demarcation of the concept of the unilateral legal act and the (few) provisions in the DCC devoted to the unilateral legal act, I give an overview of the examples of unilateral legal acts in private law. For each of these examples, I consider the following questions:

This chapter leads to two primary conclusions. First, the DCC contains many examples of unilateral legal acts. Secondly, although many different types of unilateral conduct can be brought under the definition of a unilateral legal act, some patterns become apparent. Unilateral legal acts can be divided in directed unilateral legal acts (gerichte eenzijdige rechtshandelingen) en undirected unilateral legal acts (ongerichte eenzijdige rechtshandelingen). This division is crucial when determining how private law dogmas must be applied. Directed unilateral legal acts are, like contracts, addressed to a counterparty. In many cases, directed unilateral legal acts are performed in the context of a multilateral legal relation. The rules of contract law are (analogously) applied to directed unilateral legal acts. Undirected unilateral legal acts are more autonomous. In the final paragraph of chapter 2 I discuss a number of examples of which qualification as a unilateral legal act is open for discussion.

In the two subsequent chapters I conduct a comparative study. Chapter 3 sees to the unilateral legal act in German law. The concept of the (unilateral) legal act originates in 19^th century German doctrine and the German definition matches the Dutch understanding of the unilateral legal act. Within the category of einseitige Rehhtsgeschäfte, a distinction is made between on the one hand unilaterally performing Gestaltungsrechte, and on the other hand sonstige (other) einseitige Rechtsgeschäfte. A Gestaltungsrecht (wilsrecht) is the right or competence to vary, specify or end a legal relation with a unilateral declaration of will. Examples are termination, variation and set-off. Examples of ‘other’ unilateral legal acts are the will and the offer for a reward (Auslobung/uitloving).

§311 Bürgerliches Gesetbuch (BGB) provides that a contract is required for the creation of obligations. The ratio for §311 BGB is that it is deemed to be contrary to the principle of Privatautonomie that someone can be confronted with an obligation against his will, regardless of whether it benefits or burdens him. An obligation should only arise when both parties agree to it. A unilateral legal act can only create an obligation when the law so provides. This is on first sight a noticeable difference with Dutch law. According to art. 6:1 DCC, obligations can arise when this follows from the law. The Dutch system of obligations is in principle open. Also in German law, however, there are examples of unilateral legal acts that can create obligations without an explicit statutory basis. The operation of §311 BGB thus corresponds to the Dutch norm in art. 6:1 BW.

From §311 BGB can be deduced, that German lawattaches importance to protecting the counterparty of the party performing the unilateral legal act. This also becomes apparent from the rules that are applied to unilateral legal acts. For example, the perspective of the addressee must be taken into account in the interpretation of unilateral legal acts. Gestaltungsrechte cannot be performed conditionally, as that would cause too much insecurity for the addressee.Moreover, performance of Gestaltungsrechte is irrevocable. If for the valid performance of a unilateral legal act consent is required, the unilateral legal act is null and void if consent is not given. The counterparty of a minor that performs a unilateral legal act, can under certain circumstances reject the unilateral legal act to prevent insecurity about its validity.

Chapter 4 concerns unilateral conduct in English law. English law does not recognize the concept of juridical acts. The English law of obligations takes actions as a starting point (contract, tort and restitution for unjust enrichment) and is not systematically built around legal facts like German and Dutch law. A second important feature of English law is the doctrine of consideration. An informal promise only binds the promisor when the promisee provides consideration by giving something of value in the eye of the law in return. The central notion is that there must be a bargain between parties. This is a result of the assumption that someone will not do something that is detrimental to his financial or legal position without also receiving some direct benefit. The concept of a binding unilateral act seems contradictory to this notion. As a result, voluntarily creating legal effect can only be done informally in a reciprocal contract. Despite these obstacles, there are a number of examples in English law where unilateral conduct can create intentional legal effects. A crucial instrument is the deed poll, a unilateral instrument with which both obligations can be created as well as property rights can be transferred. The deed is seen as an acceptable exception to the doctrine of consideration, because it is a formal instrument. The examples of unilateral conduct in English law can be divided in on the one hand declarations with which an existing contractual relationship can be varied or terminated (what in Dutch law would be regarded wilsrechten) and on the other hand instruments that bring about a voluntary property transaction. Examples of the first category are affirmation, rescission and giving consent. Examples of the second category are trusts and wills. Within these categories, patterns can be discerned (as is shown schematically in Annex 2).

Chapter 1 to 4 are explorative in nature. In part II, 5 examples of unilateral juridical acts are the subject of a more in depth study. The offer is the subject of Chapter 5. The offer is the legal starting point of a contractual relation, but is also has significance as a standalone juridical act. When the intention of the offeror is sufficiently clear from his declaration, the offer is in Dutch law a unilateral juridical act from which legal effect arises, even before it is accepted. It creates in itself obligations for the offeror. First, the offeror is under the obligation to honour the offer. The addressee has the right to bring about a contract. Secondly, the offeror has to keep the offered goods available and in good condition. Lastly, the offer already creates the future obligation for the offeror to perform the contract. This grants the addressee a future right. This future right can in my view be pledged, transferred or attached. A specific type of offer is the public offer. In Dutch law the prevailing opinion is that a declaration of will that is made to the public is a binding offer. The circumstances in a particular case can lead to a different conclusion. In my opinion, the starting point should be that a declaration to the public is merely a (non-binding) proposal to negotiate, and that it is only an offer when the circumstances so dictate. The offer for a reward is regarded as an example of a public offer. I propose that the offer for a reward is a standalone unilateral juridical act. Everyone that fulfils the requested performance can claim the reward, even if he did not know of it when he performed. The construction of an offer that is (unknowingly) accepted is in my view unnecessarily complex.

Chapter 6 is concerned with the so-called 403-declaration (403-verklaring). Art. 2:403 BW offers concerns the possibility to file one simplified financial statement for the entire concern, instead of having to file full financial statements for each subsidiary. One of the conditions is a joint and several liability undertaking (hoofdelijke aansprakelijkstelling) of the parent company for liabilities arising out of legal acts of the subsidiary. The 403-declaration is a unilateral legal act. In the landmark case AKZO Nobel/ING (HR 28 juni 2002, NJ 2002/447), the Supreme Court decided that the declaration is the basis of the liability of the parent company. The 403-declaration is thus an obligatory unilateral legal act. Although the 403-declaration creates a right that is associated with the claim of the creditor on the subsidiary, the 403-declaration does not create an accessory right (afhankelijk recht). It follows for example from case law that the fact that the claim of the creditor on the subsidiary is subordinated(achtergestelde vordering), does not necessarily mean that the claim of the creditor on the parent company is subordinated as well. Mirroring this, neither a preferential position can be invoked in the relation to the claim on the parent company. By filing a 403-declaration, the parent company unilaterally and voluntarily undertakes a liability. The parent company can also unilaterally withdraw the 403-declaration. For obligations of the subsidiary that have already arisen, the parent company remains liable. This ‘remaining liability’ (overblijvende aansprakelijkheid) can be terminated under certain circumstances, the most essential being that the subsidiary for which the declaration was filed no longer forms part of the concern. If the 403-declaration is not withdrawn, liabilities for the parent company keep arising. In case law, a fairness correction (billijkheidscorectie) has been assumed in a case in which the parent company had evidently forgotten to withdraw the 403-declaration and the creditors that filed a claim against the parent company could not have been unaware of this. The problem of forgetting to withdraw a 403-declaration can be forestalled by filing the declaration under the condition that liability only arises as long as the subsidiary forms part of the concern.

In Chapter 7 the will (uiterste wilsbeschikking) is discussed. The will is probably the best-known unilateral legal act. The DCC contains comprehensive regulations of the will. The aim of this chapter is to assess how the law of succession relates to the law of obligations and, by extension, whether the rules that apply to wills can be applied (analogously) to other unilateral legal acts. In my view, this is the case. Also, the norms for interpreting wills are discussed. The provision in the DCC that is concerned with the interpretation of wills is unnecessarily complex. Interpretation of wills is seen as a precarious matter. Although wills should be interpreted diligently, there is in my opinion no reason to deviate from norms that apply to interpretation of legal acts in general.

The subject of Chapter 8 is giving consent. In the DCC, many examples can be found of instances in which consent is required. However, general provisions are lacking. Giving consent is a unilateral legal act. The mere declaration of consent is sufficient for the legal effect to arise, it does not have to be accepted. Nevertheless, consent is often given in a contractual context. The same rules should in my opinion be applied, regardless of whether consent has been given unilaterally or contractually. For example, also unilaterally given consent should be voidable for mistake. The legal effect of giving consent is that the consequences of acting without consent do not occur. The consequence of acting without consent can be voidability of a legal act or liability for tort (onrechtmatige daad). Giving consent can also have a ‘positive’ legal effect, for example that a pledgor is allowed to collect payments with consent of the pledgee. Finally, giving consent can in certain instances have proprietary effect, for example with regards to the transferability of leasehold.

Chapter 9 is the last of the chapters dealing with a specific example of a unilateral legal act. This chapter is concerned with waiving rights. Waiving a right is a legal act, as it is a declaration of will with which someone intends to abandon a right or competence. The right to give up a right is part of a person’s autonomy. However, not in all instances can something be given up unilaterally. The central question of this chapter is in which cases a right can be waived with a unilateral declaration and in which cases a contract is required. If waiving a right infringes someone else’s autonomy, his assent is required. What it ultimately boils down to, is that a contract is required for waiving a right when it directly influences another person’s legal or economic position. This reflects the principle that one should not be able to force a gift on someone that he does not want to receive. If waiving a right does not directly influence someone else’s position, it can be done unilaterally. Similarly, a waiver of a wilsrecht can be effectuated with a unilateral declaration. Lastly, I discuss the waiving of a number of procedural rights. Whether this can be done unilaterally, depends on whether the waiver influences the position of the counterparty.

After receiving the collected data, conclusions can be drawn that transcend the level of individual examples of unilateral legal acts. In Chapter 10, I assess which connections can be made. Unilateral legal acts all have in common that the intended legal effect is created by the declaration of will of one party. This does however not mean that all examples have the same characteristics. When a distinction is made between directed and undirected unilateral legal acts, a pattern becomes appartent. Directed unilateral legal acts show similarities to multilateral legal acts, and are often performed in the context of a multilateral legal relation (of, in the case of an offer, bring about such legal relation). In my opinion, the rules of contract law should be analogously applied to directed unilateral legal acts. A deviation from these rules may be justified for undirected unilateral legal acts. The distinction between directed and undirected unilateral legal acts is for example clear when it comes to form requirements. Directed unilateral legal acts can generally be performed informally, while for the majority of undirected unilateral legal acts formalities must be observed. Directed unilateral legal acts should be interpreted using the Haviltex-norm, while for the construction of undirected unilateral legal acts more importance is given to objective circumstances. The provisions regarding mistake should be analogously applied to unilateral legal acts, whereas undirected unilateral legal acts can in principle not be avoided on the basis of mistake.

The distinction is not clear for all investigated issues. All unilateral legal acts are for example in principle irrevocable. No general answer can be formulated with regard to the question whether a unilateral legal act can be performed conditionally. This must be assessed on a case to case basis.

In chapter 10 I also consider whether the unilateral legal act is a source of obligations. My conclusion is that this is, and should be, the case. In parliamentary history, it is argued that obligations can only arise fromcontracts and not from unilateral legal acts. There are however a number of examples of unilateral legal acts that give rise to obligations, for example the 403-declaration, an offer or cancellation of a contract. Recognizing the unilateral legal act as a source of obligations is moreover compatible to the fact that the DCC entails an open system of obligations. The subsequent question is whether it is desirablethat a person can unilaterally create an obligation. In my view, autonomy is the primary basis of voluntarily undertakenobligations. A person should be able to exercise his autonomy unilaterally. When determining in a specific situation whether an obligation has been created, the reliance principle and the causa principle must be taken into account as well. Recognizing that unilateral juridical acts can create obligations is adversary to the principle that a person should not be able to force an obligation onto another person, which is also a pendant of the autonomy principle. Although I recognize the value of this argument, I do not think it should lead to the conclusion that unilateral legal acts can under no circumstance give rise to obligations. To prevent that obligations are forced onto someone, other mechanisms can be used, such as giving the counterparty a right to refuse the obligation.