A Comparison between Belgian, Dutch and South African Law Dealing with Pledge and Execution Measures

Abstract

In recent years certain execution measures in case of pledge has become rather controversial in South African law.1 In this article I compare the Belgian, Dutch and South African legal position pertaining to pledge and its concomitant execution measures. I evaluate the Belgian and Dutch systems because both belong to the civil-law legal family and can therefore serve as excellent examples for future development of the South African law of pledge. The Belgian code is based on the French Code Civil of 1804. For various reasons it interests the South African researcher: It is older than the Dutch code, but could be closer to the South African legal position because it is more closely related to Roman law. In Belgium this necessitated the introduction of specific legislation to address the shortcomings of the code in providing for the needs of the modern commercial world in this regard. The Dutch Burgerlijk Wetboek (BW), on the other hand, is the most recent codification of the European civil-law legal systems. It is more in line with the German Bürgerliches Gesetzbuch (BGB) of 1900, which is generally regarded as a model of scientific legal thinking based on the Roman tradition. The BGB therefore largely influenced modern legal development on the continent and elsewhere. I shall start with a broad outline of the position in Belgian law, followed by a brief exposition of the concomitant position in the Netherlands. In the conclusion I indicate the differences between these two legal systems, as well as those between these two and the South African law in this regard. I do not discuss the South African legal position, but merely refers to it in so far as it differs from the other systems. I further suggest possible adaptations of the existing South African legal position to bring pledge as a form of real security in line with modern requirements.