Open normen in het huurrecht: Ruimte versus rechtszekerheid

Abstract

This doctoral research mainly consists of legal-dogmatic research, by analyzing legislative history, legal literature and jurisprudence, to study the variation of the degree of discretion offered by open norms and the degree of uncertainty they cause. In addition, by using a qualitative and indicative opinion poll, it is explored how judges, lawyers and parties (in proceedings) experience and assess open norms in tenancy law. This study focuses on three open norms that apply to tenancy law. Firstly, the open norm that pertains to civil law in its entirety: "reasonableness and fairness", then the more limited (but still concerning more than just tenancy law): "unreasonably onerous clause", and finally the open norm exclusive to tenancy law: "good tenancy". The open norms that are subject of this research are not fully open: in some cases the legislature itself has already defined the norm, in other cases this has been done by the legal practice. Open norms do not provide unlimited discretion for the judge and the (litigation) parties and, to the same extent, there is never complete legal uncertainty. The discretion varies not only per open norm, but also within the open norm itself, regarding different applications of the norm and the target of the norm. Judges move within the framework set by law and in case law. The parties often find their discretion restricted instead of enlarged by open norms. The discretion that the judge has, however, is not always the opposite of the limitation of the discretion of the (litigation) parties The inference that can be drawn from the answers to the survey questions is that the legal practice does not always experience legal uncertainty as problematic. The uncertainty is mentioned as a point of attention, but the discretion offered by open norms is considered important. Inherent to open norms is that the legislature sets some frameworks and judges (as well as, in some cases, the parties) continue to interpret the norms. In addition, interpretation also takes place through legal theory. It is also inherent to open norms that they are never fully closed on all aspects, so that discretion for changing the framework remains if, for example, social developments demand it. The discretion that the legislature gives with the open norms that are part of this research, as well as the discretion that judges and parties have, are not unequivocal. The degree in which the discretion varies is large and nuanced. The same applies to the legal uncertainty arising from open norms. This raises the question whether judges have done enough to provide the legal practice with further standardization. On the other hand, it appears that judicial discretion is not without its limits and legal certainty is by no means nil. However, full predictability is not possible without giving up the open norms, which would be undesirable and most likely impossible.