11
DOMBO BEHEER B.V. v. THE NETHERLANDS JUDGMENT
(i) One party might call upon the other to confirm on oath the truth of a
certain disputed fact. If the other party took the oath, then proof to the
contrary was no longer admissible; if he refused, then the contrary statement
was accepted as the truth. This was the "decisive oath" (beslissende eed)
(Articles 1967-1976 CC).
(ii) The court also had the possibility of ordering, of its own motion or at
the request of a party, that one or other of the parties should take the
"supplementary oath" (aanvullende eed). It could impose such an oath on
the party which was, in its view, the most appropriate for the purpose,
provided that the statements to which the oath was to relate were neither
proved nor entirely unsubstantiated (Articles 1977 and 1978 CC). It was in
particular the supplementary oath on which parties not infrequently relied
when there was a possibility that their evidence would be insufficient; they
would ask the court for permission to supplement their evidence in this way
if the court were to hold it to be insufficient on its own.
(b) The courts also had three possible ways of hearing parties which did
not involve putting them on oath:
(i) By means of an "examination on points in issue" (verhoor op
vraagpunten) of one party at the request of the other (Articles 234-247
CCP). The party requesting such an examination had to file his questions
beforehand; however, the court was entitled to ask additional questions
occasioned by the examination, as was the party who had requested it.
(ii) By ordering, of its own motion or at the request of either party, the
personal appearance of the parties for the purpose of obtaining information
(comparitie tot het geven van inlichtingen) (Article 19a CCP). In principle,
such an order was for the appearance of both parties.
(iii) In the event of oral pleadings (pleidooien). Article 20 CCP allowed
parties to present their cases themselves, but this was very rare; however,
parties were frequently present at the oral pleadings and the court could
make use of the opportunity to question them (Article 144 para. 2 CCP). It
was commonly assumed that statements made in these three instances did
not constitute evidence in support of the position of the party that made
them.
B. Legal persons
25. If a party to proceedings was a legal person, then the rule
disqualifying a party as a witness applied to any natural person who was to
be identified with the legal person concerned.
A natural person was identified with a legal person if he had acted in the
proceedings as its representative (as appears from, inter alia, the Supreme
Court’s judgments of 27 June 1913, NJ 1913, p. 865; 28 April 1916, NJ
1916, p. 786; 19 January 1922, NJ 1922, p. 319; 17 January 1969, NJ 1969,
251), or if he was empowered by law or by its statutes to act as its legal