Abstract
This chapter will study what is involved in the proper performance of a juridical act and looks at the consequences that a juridical act can have. I will begin, in the introductory section, with a short introduction of my theory and give an overview of the steps that are involved in the creation of new legal facts through a juridical act. I will argue that a speech act can count as a juridical act and that a juridical act can then lead to legal consequences. I will thus briefly describe the process that is involved in the performance of a juridical act. Then I will shortly introduce the different types of nullities that, according to my theory, can occur during this performance. Finally I will give a short overview of the issues that will be discussed in the rest of the section.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Searle (1969), pp. 29–33.
- 2.
Smits (2014), pp. 121–135.
- 3.
Asser-Hartkamp and Sieburgh (2014), pp. 561–622.
- 4.
- 5.
Hage (2011).
- 6.
- 7.
This can be a declaration from one of the parties, a judge or any other competent authority. Who is competent to avoid is usually determined by the rules that grant the avoidability.
- 8.
MacCormick and Weinberger (1986), pp. 49–58.
- 9.
For example, in the case of delivery traditio brevi manu, in Dutch law: art 3:115 (b) BW.
- 10.
At least under Dutch law: 3:84 BW.
- 11.
- 12.
- 13.
It is important to note that a fact always counts as another fact, while an event always counts as another event. It is impossible for an event to count as a fact or vice versa.
- 14.
These counts-as rules are similar to the counts-as rules as defined by Searle in his account of social reality. Searle (1996), pp. 43–51.
- 15.
For theoretical clarity I make a strict distinction between the world of law and the rest of reality (both physical and social). Of course, we are so familiar with the law that generally signing an agreement is socially seen as concluding a contract as well.
- 16.
Searle gives the impression that counts-as rules are the only kinds of constitutive rules: Searle (1996), pp. 31–147.
- 17.
Attached-to rules are partially comparable to the class of consequential rules that MacCormick creates. The similarity lies in the fact that consequential rules can also connect new facts to the existence of another fact. However MacCormick’s account of consequential rules seems to be quite broad and might encompass rules that would not fit within the class of attached-to rules. MacCormick and Weinberger (1986), pp. 49–58.
- 18.
Hage (2011), pp. 23–73.
- 19.
Counts-as rules are the other subset.
- 20.
Hage (2011), pp. 23–73.
- 21.
This does not mean however that time necessarily always needs to pass, only that the principal event disappears while the new fact appears.
- 22.
One might not even realise exactly what taxes will have to be paid, however, that does not diminish the fact that the taxes will have to be paid.
- 23.
For this schematic view to be correct, it needs to be assumed that it is possible to terminate this contract, due to, for example, a termination clause in the contract.
- 24.
It is important to note that a fact always counts as another fact, while an event always counts as another event. It is impossible for an event to count as a fact or vice versa.
- 25.
See Sect. 2.2.3.
- 26.
Because this theory explicitly concerns acts, namely juridical acts, I will hereafter, when I refer to counts-as rules, refer only to those that count acts as other acts. Counts-as rules that, e.g., count an object as something else (a car counts as a motor vehicle (motorrijtuig) for the Dutch Wegenverkeerswet 1994) will not be a part of this discussion.
- 27.
Harts ‘acts-in-the-law’ seem to be the similar to juridical acts. He explicitly equates them with actes juridique and Rechtsgeschäfte. Hart (1983), pp. 88–120, 265–277.
- 28.
Hart (1983), p. 276.
- 29.
Hart (1982), p. 217.
- 30.
Hart (1983), pp. 94–95.
- 31.
Hart (1983), pp. 271–277.
- 32.
The fact that the exact rule in the case of these types of rules is hard to determine is also argued by MacCormick in his work on institutive rules: MacCormick and Weinberger (1986), pp. 58–67.
- 33.
Hart (1983), pp. 21–48.
- 34.
Art. 3:90 BW jo. 3:115 BW.
- 35.
Note that I have not written down the full counts-as rules and all their conditions here, but merely the main point.
- 36.
NB: as stated before this section only deals with, and only applies to, counts-as rules that concern acts.
- 37.
Hage (2015).
- 38.
Hart (1961) (2012), pp. 94–96.
- 39.
This is comparable to Austin’s condition A1: Austin (1955) (2009), pp. 14, 26–34.
- 40.
This demand can be compared to Austin’s misexecutions, condition B1&2: ‘B1: The procedure must be executed by all participants both correctly and B2: completely’. If that did not happen, there is a misexecution, the act has not been executed correctly. See: Austin (1955) (2009), pp. 14–15, 36–38.
- 41.
Section 5.1 of book 1 of the Dutch civil code details the requirements that need to be met in order to marry. Article 5:33 explicitly states that neither can be married at the time of marrying.
- 42.
- 43.
Bigamy is not only forbidden according to private law, but it is also illegal, punishable and seen as a disturbance of the public order. See: De Groot and Rutten (1996).
- 44.
- 45.
I have only quoted one of the articles of the whole act and the enactment, since that suffices for the example. Disability Discrimination Act 1995, <http://www.legislation.gov.uk/ukpga/1995/50/contents> (last checked 21-08-2018).
- 46.
This view on normativity and legal consequences seems close to what Hage advocates in his work on the gap between what is and ought: Hage (2012b).
- 47.
Searle (1969), pp. 57–58.
- 48.
Searle (1969), pp. 66–67.
- 49.
Hage (2012b).
- 50.
A second discussion can arise whether or not all juridical acts have normative consequences or only some. It can be argued that a contractual obligation is normative, while the appointment of a new judge is not. I will not go into this discussion, since I am not so much concerned with why legal consequences (can be) normative or not, and whether or not they should be normative, but with the question what the primary legal consequences are and how they can be established.
- 51.
For example in the case of damages that can be awarded to Charlotte by a court.
- 52.
See Sect. 3.4.1.1 for the original examples.
- 53.
- 54.
This seems to be in line with what Hage does. Hage (2012b).
- 55.
Searle (1969), p. 22.
- 56.
Searle (1969), pp. 22–23.
- 57.
In his work, Kurzon discusses statutes, that are enacted (the master speech act) and the laws in turn can permit, order or prohibit something. Kurzon (1986), pp. 15–23. Hereafter I will use the term ‘master speech act’.
- 58.
For an analysis of a contract case in this manner see: Brouwer (2007).
- 59.
I realise that ‘private’ might not seem to be the most obvious term. However, since the terminology is mostly used to contrast this competence to competences that are directly attributed by law, I propose to use the adjective ‘private’. The reason for this is that the competence is based on an act for which private autonomy is important. Therefore it was the best term I could think of in this case.
- 60.
See for example the argument made by Ruiter (1992).
- 61.
DCFR (2009), p. 27.
- 62.
Art. 1:31(1) BW. There are more aspects that together form the competence to marry, such as the fact that one cannot have married before and more, however, in order to make this example clear I will pretend that it only concerns the age.
- 63.
8:72(3) Awb.
- 64.
This is just one example. One can also think about the possibility that contractual obligations come into existence on the basis of good faith (redelijkheid en billijkheid), instead of through the performance of the juridical act ‘to contract’.
- 65.
See Table 3.1 for the overview.
- 66.
- 67.
Searle (1969), pp. 42–50.
- 68.
Von Savigny (1840), pp. 206–216.
- 69.
Mollema (2008).
- 70.
Kornet (2005).
- 71.
Von Savigny (1840), pp. 206–216.
- 72.
I realise that this is a broad categorisation of many slightly different interpretation rules. I also realise that some rules can be argued to be part of more than one category or part of no category at all. However, I believe that for the present purposes this is a useful division, since it highlights the three most important aspects of legal interpretation: will and intention of the parties, social and grammar rules and conventions, and what is deemed desirable.
- 73.
Smits (2014), pp. 121–135.
- 74.
For more on attached-to rules and secondary legal consequences see Sect. 3.6.
- 75.
Category 1: e.g. art. 1156, 1163. Category 2: e.g. art. 1159, 1160. Category 3: e.g. art 1157, 1162 Burgerlijk Wetboek Boek III België <http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=nl&la=N&cn=1804032133&table_name=wet> (last checked 21-08-2018).
- 76.
I use the term legislator in a very broad sense, as it includes all institutions that are involved in the process of creating law, legal rules, explaining and determining the scope of legal principles, and so on and so forth. Courts and judges, especially in common law countries, are thus included in this term.
- 77.
- 78.
For more on desirable or missing legal consequences see Sect. 3.6.2.
- 79.
An example of interpreting the will from a third person’s standpoint can be found in: Mollema (2008).
- 80.
This can be compared to Wittgenstein, who later argued that the meaning of terms is dependent on the ‘language game’ and the ‘grammatical rules’ of the game in which it is used, e.g. the ‘language game’ that is the law. For more on the meaning of legal terms from Wittgenstein’s point of view see: Fleuren (2015).
- 81.
I have only quoted one of the articles of the whole act and the enactment, since that suffices for the example. Disability Discrimination Act 1995, <http://www.legislation.gov.uk/ukpga/1995/50/contents> (last checked 21-08-2018).
- 82.
The leads-to rule is written in italics.
- 83.
Searle (1969), pp. 175–198.
- 84.
Hage (2012b).
- 85.
Mackie (1977), pp. 66–73.
- 86.
Raz (1979), p. 153.
- 87.
I am aware of the fact that this is a controversial stance in legal theory, as many authors will argue that it fails to fully comprehend the normative dimension of the law. Later in Sect. 3.4.3.4 I will shortly address this issue again, even though a full discussion on these issues falls outside the scope of this work.
- 88.
Although it can be argued that we are morally obliged to follow legal rules. However, whether or not that is the case is outside the scope of this work.
- 89.
The theory of efficient breach is based on the idea that: ‘Repudiation of obligations should be encouraged where the promisor is able to profit from his default after placing his promisee in as good a position as he would have occupied had performance been rendered’ Birmingham (1970). For an (economic) analysis of efficient breach see: Wenqing (2015).
- 90.
I have called this a ‘legal is’, since it is on the basis of legal rules. If the legal rules would be completely disregarded, it can be argued that it ‘is’ not really the case. For example, in the Netherlands, before 1991 it was not rape, legally speaking, if the forced sexual conduct took place within a marriage. It might have very well been a ‘legal is’, but I can imagine that most people, from a social standpoint, would have classified forced sex within a marriage as rape. Similarly, it can be argued that the appointment of a notary public is a legal is, since it is solely based on legal rules.
- 91.
Hart (1961) (2012), pp. 94–96.
- 92.
For more on this see Sect. 3.5.
- 93.
- 94.
I have only quoted one of the articles of the whole act and the enactment, since that suffices for the example. Disability Discrimination Act 1995, <http://www.legislation.gov.uk/ukpga/1995/50/contents> (last checked 20-08-2018).
- 95.
Section 3.4.1.
- 96.
For now I will not differentiate between non-existent and null and void. I will use both terms for the idea that the juridical act has no legal consequences. In Sect. 3.5.2 I will discuss two options: one in which the legal consequences are non-existent and one in which they are null and void. The effect in both cases is the same: the juridical act has no legal consequences.
- 97.
This might seem strange. After all, a juridical act is an event and it thus necessarily disappears after the performance. However, what is meant is that the act will be regarded as having been performed, as opposed to not having been performed at all.
- 98.
See also Sect. 3.3.3.
- 99.
Even though ultimately it can be unclear exactly where the defect takes place. For example, if a civil servant grants a licence that is outside the scope of his competence to grant, is that a defect in the performance (he lacked the competence) or is that illegal (he is not allowed to act outside the scope of his competence) and therefore the legal consequences are affected? The fact that this difference can be clearly shown in this theory is in itself already an addition.
- 100.
The translation of concepts specific to a certain legal system is always tricky. I have chosen to use the term prejudgement attachment since it seems to capture the spirit of the conservatoir beslag best. I realise that both concepts will inevitably be different, however, in order to understand the example I do not feel that that is a problem.
- 101.
He can do so immediately, through his judgment, or give leave to remove the prejudgment attachment. For now I will focus on the possibility that the judge does so immediately.
- 102.
- 103.
Technically, it could be argued that it is not so much the legal consequences that disappear and arise again, but the act itself. However, this is not what seems to be implied by the legal language used in this case, nor does it seem to be in line with other examples and the possibility of partial nullity as explained below.
- 104.
It can be debated whether or not the removal of the prejudgment attachment has retroactive power (see HR 5 september 2008 RvdW 2008,801 (Forward c.s./Huber c.s.), however, for the current argument this has no consequence, so I do not discuss this.
- 105.
Kortmann (1991).
- 106.
Unless one argues that half the act is gone and the other half still exists. I however believe that the notion of ‘half an act’ is ridiculous and should not be contemplated.
- 107.
For Dutch law due to 3:40BW.
- 108.
In this case, because Burgman argued that they did not know that it would be illegal for Aviolanda to make the combs, the Supreme Court dismissed the judgment of the lower court. However, that does not change the fact that it is possible that the perlocutionary consequences of the act are illegal and that therefore the act can be null and void. HR 11 mei 1951, NJ 1952/128 nt. PhANH (Burgman/Aviolanda).
- 109.
ABRvS 4 maart 1996, AB 1996, 320, m.nt. PvB.
- 110.
E.g. 6:236 BW.
- 111.
Riggs v. Palmer, 115 N.Y. 506 (1889).
- 112.
For Dutch law 3:40 jo 3:59 BW.
- 113.
- 114.
Art. 2 Wet Belastingen van Rechtsverkeer (WBR) <http://wetten.overheid.nl/BWBR0002740/geldigheidsdatum_17-04-2015> (last checked 21-08-2018).
- 115.
Van Dunné for example did this, van Dunné (1971), pp. 196–235.
- 116.
- 117.
I have chosen the name ‘tax obligation’ for all obligations that arise due to legal rules that impose taxes. This is in order to distinguish between tax obligations and contractual, court-ordered and other obligations.
- 118.
Art 7:9(4) BW.
- 119.
I realise this means that not only the juridical act to contract can be the source for contractual obligations, but also legal contract rules. This might seem counterintuitive at first, but it does represent practice best in my opinion. This is similar to the fact that the connection between the type of juridical act and the type of legal consequences is ‘functional’, as explained in Sect. 3.4.1.4. In a sense legal rules are able to ‘mimick’ the contractual nature of the obligation (an implied legal term is for all senses and purposes a contractual obligation), and thus give rise to contractual obligations.
- 120.
In the above it might have seemed that the type of juridical act is always the same as the type of legal consequences. This is not the case. Similar to the juridical act to contract can create contractual obligations, the juridical act to bid creates a private competence to accept, see also Sect. 3.4.1.4.
- 121.
Art. 2.1 Besluit Energieprestatie Gebouwen <http://wetten.overheid.nl/BWBR0023734/geldigheidsdatum_23-04-2015> (last checked 21-08-2018).
- 122.
- 123.
For an overview of English, French, German, and Dutch law in this regard see Smits (2014), pp. 121–135.
- 124.
Smits (2014), pp. 130–132.
- 125.
For more on this see Sect. 3.5.2.
- 126.
7:271(7) BW.
- 127.
The types of nullities that are discussed here would in my theory quite possibly have meant that the speech act did not count as a juridical act. The act would therefore not have been null and void but non-existent. In those cases, if the terminology of this work is employed, a non-existent act is replaced by an act that could have been performed.
- 128.
Asser-Hartkamp and Sieburgh (2014), pp. 608–616.
- 129.
NJ 1944/120.
- 130.
NJ 1981/284.
- 131.
Asser-Hartkamp and Sieburgh (2014), pp. 614–616.
- 132.
It rarely leads to a non-existent juridical act, nor does it often nullify the consequences, see: Duk and Nicolaï (1993).
- 133.
van Wijk/Konijnenbelt and van Male (2014), pp. 268–269.
- 134.
Art 1:233 BW.
References
Austin JL (2009) How to do things with words. Oxford University Press, Oxford
Birmingham R (1970) Breach of contract, damage measures, and economic efficiency. Rutgers Law Rev 24:273–292
Broekveldt LP (2003) Derdenbeslag. Kluwer, Deventer
Brouwer B (2007) Fundamentele rechtsbegrippen. De theorie van Wesley Newcombe Hohfeld. In: Janse R et al (eds) Rechtsfilosofische annotaties. Ars Aequi Libri, Nijmegen, pp 22–26
Cohen LJ (1964) Do illocutionary forces exist? Philos Q 14(55):118–137
de Groot G-R, Rutten S (1996) Polygamie, naturalisatie, bigamie? Recht van de Islam 13:19–60
den Besten M (2009) Wacht tot het rode licht gedoofd is… of niet, herleving van opgeheven beslagen. Advocatenblad 2:50–53
Duk W, Nicolaï P (1993) Nulliteiten in het bestuursrecht. Rechtsgeleerd magazijn THEMIS 1:3–31
Fleuren JWA (2015) Hoe komen juridische begrippen en regels aan hun betekenis? Het belang van de taalfilosofie van de latere Wittgenstein voor de rechtsgeleerdheid. Ars Aequi:568–584
Grice HP (1957) Meaning. Philos Rev 66(3):377–388
Grice HP (1969) Utterer’s meaning and intention. Philos Rev 78(2):147–177
Hage JC (1997) Reasoning with rules, and essay on legal reasoning and its underlying logic. Kluwer Academic Publishers, Dordrecht
Hage JC (2011) A model of juridical acts, part 1 and part 2. Artif Intell Law 19:23–73
Hage JC (2012a) Conceptual tools for legislators. Part 1: rules and norms. Jurisprudence 6(1):77–89
Hage JC (2012b) Juridical acts and the gap between is and ought. Neth J Leg Philos 43:50–66
Hage JC (2013) The deontic furniture of the world. In: Stellmach J, Brozek B, Hohol M (eds) The many faces of normativity. Copernicus Center Press, Krakow, pp 73–114
Hage JC (2015) The (onto)logical structure of law. A conceptual toolkit for legislators. In: Araszkiewicz M, Pleszka K (eds) Logic in the theory and practice of lawmaking. Springer, Cham, pp 3–48
Hart HLA (1982) Essays on Bentham, studies in jurisprudence and political theory. Clarendon Press, Oxford
Hart HLA (1983) Essays in jurisprudence and philosophy. Clarendon Press, Oxford
Hart HLA (2012) The concept of law. Oxford University Press, Oxford. (reprint of the original from 1961)
Hartkamp AS, Sieburgh CH (2014) Mr. C. Assers Handleiding tot de beoefening van het Nederlands Burgerlijk Recht. 6. Verbintenissenrecht. Deel III. Algemeen overeenkomstenrecht. Kluwer, Deventer
Heringa AW, Kiiver P (2012) Constitutions compared, and introduction to comparative constitutional law. Intersentia, Antwerpen
Hijma J (1988) Nietigheid en vernietigbaarheid van rechtshandelingen (diss. Leiden). Kluwer, Deventer
Konijnenbelt W, van Male R (2014) van Wijk/Konijnebelt & van Male, Hoofdstukken van het bestuursrecht. Kluwer, Deventer
Kornet N (2005) The interpretation, implication and supplementation of contracts in England and the Netherlands. In: Smits JM, Stijns S (eds) Inhoud en werking van de overeenkomst naar Belgisch en Nederlands recht. Intersentia, Antwerpen, pp 47–78
Kortmann CAJM (1991) De nieuwe gemeentewet; een voorlopig verslag voor de eerste kamer. De Gemeentestem 6915:1–9
Kurzon D (1986) It is hereby performed… explorations in legal speech acts. John Benjamins Publishing Company, Amsterdam
MacCormick N, Weinberger O (1986) An institutional theory of law, new approaches to legal positivism. D. Reidel Publishing Company, Dordrecht
Mackie JL (1977) Ethics, inventing right and wrong. Penguin Books, Harmondsworth
Mijnssen FHJ (2009) Materieel beslagrecht. Kluwer, Deventer
Mollema AF (2008) Uitleg van uiterste wilsbeschikkingen en aanverwante zaken. Weekblad voor Privaatrecht, Notariaat en Registratie 6773:820–829
Raz J (1979) The authority of law. Clarendon Press, Oxford
Raz J (2003) About morality and the nature of law. Am J Jurisprud 48(1):1–15
Ruiter DWP (1992) ‘Besluit’ in de algemene wet bestuursrecht. Bestuurswetenschappen 3:185–195
Schauer F (1991) Playing by the rules, a philosophical examination of Rule-based decision-making in law and life. Clarendon Press, Oxford
Searle JR (1969) Speech acts, an essay in the philosophy of language. Cambridge University Press, Cambridge
Searle JR (1996) The construction of social reality. Penguin Books, London. (reprint, first ed. 1995)
Shapiro S (2011) Legality. Belknap Press of Harvard University Press, Cambridge
Smits JM (2005) Inhoud en werking van de overeenkomst in België en Nederland: een overzicht. In: Smits JM, Stijns S (eds) Inhoud en werking van de overeenkomst naar Belgisch en Nederlands recht. Intersentia, Antwerpen, pp 1–20
Smits JM (2014) Contract law, a comparative introduction. Edward Elgar, Cheltenham
Stijns S (2005) de matigingsbevoegdheid van de rechter bij het misbruik van contractuele rechten in de Belgische rechtspraak van het Hof van Cassatie. In: Smits JM, Stijns S (eds) Inhoud en werking van de overeenkomst naar Belgisch en Nederlands recht. Intersentia, Antwerpen, pp 79–100
Tjon-En-Fa EM, Reijnen CM (2008) Beslag op onroerende zaken; de rechtsgevolgen van een tijdelijke opheffing, beschouwingen naar aanleiding van HR 5 september 2008 (Forward c.s./Huber c.s.), RvdW 2008/801. Maandblad voor Vermogensrecht 10:240–245
Valk WL (2009) Uitleg en het onderscheid tussen autonome en heteronome normen. In: Castermans AG et al (eds) Ex libris Hans Nieuwenhuis: opstellen aangeboden aan prof. mr. J.H. Nieuwenhuis, hoogleraar burgerlijk recht aan de Universiteit Leiden, bij zijn emiritaat. Kluwer, Deventer, pp 391–401
Valkhoff J (1951) van autonoom tot heteronoom contract. Socialisme en Democratie 8:641–650
van Dunné JM (1971) Normatieve uitleg van rechtshandelingen, een onderzoek naar de grondslagen van het geldende verbintenissenrecht (diss. Leiden). Kluwer, Deventer
Vermander F (2005) De interpretatie en aanvulling van een overeenkomst naar Belgisch recht. In: Smits JM, Stijns S (eds) Inhoud en werking van de overeenkomst naar Belgisch en Nederlands recht. Intersentia, Antwerpen, pp 21–46
Von Bar C, Clive E, Schulte-Nölke H (2009) Principles, definitions and model rules of European private law. Draft common frame of reference. Sellier, Munich
von Savigny FC (1840) System des heutigen Römischen Rechts, bandes I. Veit und Comp, Berlin
Wenqing L (2015) The application the theory of efficient breach in contract law, a comparative law and economics analysis (diss. Maastricht). Intersentia, Antwerpen
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2019 Springer Nature Switzerland AG
About this chapter
Cite this chapter
van der Kaaij, H.D.S. (2019). The Juridical Act as a Speech Act in the World of Law. In: The Juridical Act. Law and Philosophy Library, vol 129. Springer, Cham. https://doi.org/10.1007/978-3-030-15592-6_3
Download citation
DOI: https://doi.org/10.1007/978-3-030-15592-6_3
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-15591-9
Online ISBN: 978-3-030-15592-6
eBook Packages: Law and CriminologyLaw and Criminology (R0)