Publication / Algemeen recht

Pee Law?!

Pee Law?!

19-12-2013

As often happens, my thoughts wandered to the existence of a relationship between everyday life and the law. This time I found myself standing in front of a urinal on the fifth floor in the Bijenkorf in Amsterdam, lost in thought, seeking the relationship between law and urination.
Could the fluid gift I was pointing at an imaginary fly in the urinal be classified as a gift?

Contrary to the general idea, a gift is not a unilateral act. Indeed, according to law a gift is considered as a special type of agreement. And as for any agreement it also applies to a gift agreement that is concluded by the offer of the one and the acceptance thereof by the other.  As such, the effectuation of a gift presumes the involvement of at least two persons while the mere fact that this in itself concerns an agreement entails that mutual rights and obligations are created.  Characteristic of a gift is that there is no obligation for payment and that neither  a consideration or reciprocal service  is created in return for a performance, which may include a good or a service.

Years ago when I was studying law in Amsterdam, the standard example to illustrate the logic  of the foregoing was the garbage bag which was flopped by the one  on the next door’s  balcony. The perplexed recipient who asked what this meant was snarled at and was told that he should stop nagging and should be glad as this was a gift. You understand of course that this won’t do!

Unlike in the petty-bourgeois Holland, usually no money is charged in Curacao to make use of the toilets in public places while neither money is paid for the urine received. This seems to hold an element of gift. The exact moment of offer and acceptance is difficult to determine but it could be argued that the mere fact that the toilet is opened includes an anticipated general acceptance of the offer to donate urine. The fact that then in order to process such gift water owned by the recipient of the gift has to be used to flush, possibly also toilet paper and thereafter water and soap to wash the hands, in principle does not impair the gift. Compare is with me giving you a tea bag and then you have to cook your own water and if so desired add sugar to it.

But as I already said, an agreement, and thus also a gift agreement, is characterized by the creation of rights and obligations and that is where the comparison falls short. If parties agree on a gift the benefactor cannot unilaterally withdraw from the agreement and the recipient is perfectly within his rights to enforce compliance with the gift agreement, if necessary through the courts.  It is inconceivable that the shop or the restaurant where the restroom is located, would successfully enforce  that the gold liquid is produced and delivered. After all, on the side of the – undoubtedly in case of an emergency –  generous benefactor there is no obligation to donate the urine. 

Is the entire event of going to the toilet then without rights? Fortunately not. Because it seems to me that as regards the use of toilets in a public facility there is an agreement sui generis, a separate – wayward – agreement, to say so the ‘going to the toilet agreement’, which is characterized by a number of elements. In my opinion on the part of the owner of the toilet we may expect that the toilet is clean and equipped with illumination, that it can be flushed, that the rest-room can be closed properly, that toilet paper is present and that there is a possibility to wash (and dry) your hands after using the toilet. From the user we may expect that he uses the toilet for its designated purpose, that he leaves it behind neatly and that he does not use more water and toilet paper than necessary. I must confess that in the Bijenkorf in Amsterdam the agreement is complied with according to the rules.  Fortunately, because, let’s face it…………….. I don’t know about you, but any violation I observe  of the agreement to go the toilet - which agreement is by definition an unwritten agreement-, pisses me off!

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