From shared transport, such as Swapfiets and Greenwheels, to circular construction and alternative housing. Major societal developments are following each other in rapid succession and are having a major impact on our society. How do we properly record agreements on these matters and how do we ensure adequate consumer protection? Harriët Schelhaas, Professor of Private Law and Dean of Erasmus School of Law, and Josje de Vogel, Assistant Professor of Private Law at Erasmus School of Law, researched this and presented their preliminary advice to the Association for the Comparative Study of Belgian and Dutch Law on Friday 21 November at the University of Antwerp.
By comparing the legal systems of Belgium and the Netherlands, the Association seeks to gain a deeper understanding of public, private and criminal law in order to improve the law. What recommendations do Schelhaas and De Vogel make to bring contract law more in line with major societal developments?
Before an audience of members of the Belgian Court of Cassation, advocates general of the Dutch Supreme Court, solicitors, professors and researchers, Schelhaas and De Vogel defended their Preliminary Advice, together with the researchers who researched this from a Belgian perspective. De Vogel explains: “In our preliminary advice, we examined how special contracts should be classified legally, a question that is becoming increasingly complex due to new business models, digitisation and changing market practices. Our analysis shows that the classification of agreements can only function properly when the focus is not on the label that the parties attach to their contract, but on the actual agreements and the function that the contract fulfils in practice.”
Traditional forms no longer adequate
However, this is not always the case: "We see that societal and economic developments are leading to new qualification problems. In some cases, such as servitisation or circular construction, traditional contract types such as purchase or contracting are simply no longer appropriate for the service-oriented and long-term forms of cooperation that arise in practice. Current legislation falls short in this regard and additional protection should be provided. There are also situations in which the legal definition does apply, but is deliberately left out of consideration. This applies, for example, to private leasing or post-payment services such as ‘buy now, pay later’, which essentially fall under the protective consumer credit regulations, but are largely excluded from them. New legislation will partially correct these inconsistencies. In addition, there are situations in which the old definition is still usable, provided that it is applied functionally. This applies, for example, to platform work or new forms of construction, where the essence of the contractual relationship must be leading in order to prevent protective rules from being circumvented too easily," according to Schelhaas and De Vogel.
Time for flexible private law in current times
The core of the preliminary advice is that private law must remain sufficiently flexible to keep up with these developments, but at the same time must provide clear frameworks to prevent circumvention. “Ultimately, it is about ensuring that the law reflects the reality of modern contracts: by looking at the actual nature of the contractual relationship, contract law remains fair and future-proof even in times of rapid change. We have provided some techniques for this.”
This conclusion is in line with the Belgian perspective of the preliminary advice, written against the backdrop of the new Belgian Civil Code, although Belgian law is much more restrictive than Dutch law. In Belgium, too, it appears that the traditional way of qualifying contracts is no longer sufficient for modern, hybrid agreements. Like Schelhaas and De Vogel, the Belgian authors emphasise that qualification should primarily be a tool to ensure that mandatory protection rules actually work and that the protective purpose of the rules must be taken into account. “In this way, both legal systems are moving towards a realistic, goal-oriented approach to contract classification,” according to Schelhaas and De Vogel.
Contracts that reflect societal reality
During the deliberations on the preliminary advice in Antwerp, it became clear once again that qualification is not an end in itself, but a tool for effectively applying mandatory law, including to new social phenomena. “By striking the right balance between legal certainty and legal protection, these insights can contribute to a society in which, for example, consumers and other vulnerable parties are better protected, even in a rapidly changing economic and digital reality. In this way, the qualification of contracts is more in line with societal reality,” Schelhaas and De Vogel conclude in their preliminary advice.
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