European Review of Private Law

Volume 14 (2006)

Volume 14 (2006) / Issue 3

Jeroen M.J. Chorus, 'Illegality and Restitution' (2006) 14 European Review of Private Law, Issue 3, pp. 437–458


Under Dutch Law juridical acts may conflict ? by their mere accomplishment, their content, or their purport ? with a statute, good morals, or public order. This may be a ground for nullity, produce other effects, or have no consequences at all. Though not conflicting with law in such a way, a juridical act will not be (fully) enforceable, if a performance under an act would result in a violation of statute, good morals, or public order. The Dutch condictio indebiti also covers performances other than giving money or any other property, e.g. services rendered. The Dutch Law of Restitution is remarkable in that generally both parties may reclaim what they performed on an illegal contract. Under the 1992 Civil Code, unlike beforehand, there is now some room for the in pari delicto defence, albeit very little. Only where a particular performance made by one party is so repugnant that it defies assessment of its value, this party may, sometimes, avail itself of this defence against the condictio indebiti of the other party. If a contract, though not null, is not enforceable but has nevertheless given rise to performances, condictiones indebiti may equally lie.

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ISSN: 0928-9801
ID: ERPL2006025