Roman-Dutch Law in Sri Lanka: The Dutch Courts and What They Left

Sri Lanka's general law is Roman-Dutch, kept in force by the British in 1799. English law governs certain named commercial and maritime subjects by force of the Civil Law Ordinance of 1852. Statute overrides both. Three personal laws apply to particular communities alongside them.

Those four sentences are the whole structure, and most of the trouble foreign lawyers have with Sri Lanka comes from assuming one part of it covers the rest.

A solicitor in London reading a Sri Lankan sale agreement will recognise the drafting, the court structure and the way a judgment is written, and will reasonably conclude that the underlying law is the one they know. On a question about a partnership they would be right. On who owns the land, what a servitude over it permits, or whether the claim has prescribed, they would be wrong, and nothing on the face of the documents would tell them so.

What follows is which body of law answers which question, taken from the statutes that decide it.

What the Dutch actually built

The Dutch East India Company held the maritime provinces of Ceylon until 1796 and administered justice there according to the law of the United Provinces. It did not do so in the abstract. It built courts, and the shape of those courts explains why so much of the inheritance is about land.

Three bodies did the work, with variations by place and period. The Raad van Justitie, the Council of Justice, sat at the top, and the one in Colombo took appeals from its counterparts in Jaffna and Galle in civil cases above specified sums and in certain criminal matters. The Civiele Raad handled civil disputes. Beneath them sat the Landraad, and it is the Landraad that matters most to a modern lawyer, because it had exclusive jurisdiction over land and it maintained the thombos, the registers in which holdings and their holders were recorded.

A colonial company that wants to tax and trade has to know who owns what. Registering land was the Company's first administrative problem, and the institution it built to solve it became the court that decided land disputes. Two and a quarter centuries later, property is still the area of Sri Lankan law where the Roman-Dutch inheritance is most complete.

The Company also discovered that it could not simply impose its own law on a populated country. Governor Cornelis Jan Simons, who held office from 1703 to 1707, moved to give local law and local headmen a defined place in the system: a plakkaat of 1706 directed that the population take complaints first to their headmen and only then to the Dutch administrators. It was in the same year, and by the same Governor's order, that the customs of the Tamil inhabitants of Jaffna were collected into the compilation that Sri Lankan law still knows as the Tesawalamai. Where native commissioners decided Sinhalese matters, they were in principle to apply the old laws and customs of the land so far as those were not contrary to a specific plakkaat.

That is the Dutch legal settlement in one sentence: Company law at the top, indigenous custom preserved and written down underneath it, and land registration as the spine of both. The British inherited all of it.

The instrument that kept a Continental system alive

When the British took the maritime provinces they did not replace what they found.

The instrument is still in the statute book. Ordinance No. 23 of 1799, dated 23 September 1799, appears in the Legislative Enactments as Chapter 12 under the heading Adoption of Roman-Dutch Law, Freedom of Religious Worship and Abolition of Torture. Section 2 declares that the administration of justice shall be exercised by all courts of judicature, civil and criminal, according to the laws and institutions that subsisted under the ancient government of the United Provinces, subject to such deviations and alterations as might afterwards be made.

The preamble describes this as a temporary administration, during His Majesty's will and pleasure. It has now lasted two hundred and twenty-seven years.

The same Ordinance abolished proceeding by torture, abolished breaking on the wheel and mutilation as modes of execution, removed the requirement of a confession before a capital sentence, and allowed liberty of conscience and the free exercise of religious worship. The reception of Roman-Dutch law was, in its own text, one clause of a reforming proclamation rather than the point of it.

The consequence was not ordinary. Roman-Dutch law in the Netherlands was displaced by codification in the nineteenth century. In Ceylon it was not, and it went on being developed by judges trained in the English tradition, applying Continental authorities, in a court system built on English lines. That is why the institutional writers of the seventeenth and eighteenth centuries are still cited in Colombo two centuries after they became of purely historical interest in Holland.

What Roman-Dutch law still decides

Roman-Dutch law operates as the residuary general law. It is not a specialist body of rules for unusual cases; it is the default, and it governs wherever nothing has displaced it.

A foreign lawyer meets it most often in four areas. Property is the first and the most important: ownership, possession, servitudes, co-ownership and the rules by which title passes are Roman-Dutch, and the vocabulary of an English conveyance does not map cleanly onto them. Delict is the second. The cause of action is the Aquilian one, a general remedy for loss wrongfully caused, sitting alongside the actio iniuriarum for injury to personality, and it is not the English tort of negligence. In practice the courts have filled that civilian frame with English content: duty of care, the reasonable man and foreseeability all appear in the modern judgments. The structure is Roman-Dutch and much of the doctrine is not, so the reasoning will look familiar to an English lawyer while the pleading will not. Unjust enrichment is the third. It is an independent source of obligation, as it now is in England too, but it is reached through the Roman-Dutch condictiones rather than through the English unjust-factor analysis, so a claim is framed differently. Succession is the fourth, and the rules on wills, intestacy and administration of estates are Roman-Dutch except where a personal law or a statute displaces them, the Matrimonial Rights and Inheritance Ordinance, No. 15 of 1876 being the one that most often does.

That property remains Roman-Dutch is not an inference. It is written into the statute that introduced English law, and the next section sets out how.

Contract is the awkward case, because so much English doctrine has been absorbed through the cases that the two systems can be hard to separate. They separate cleanly at the point that matters most to a foreign drafter: consideration is not required. What Roman-Dutch law asks for is a justa causa debendi, which the courts have held to be wider than what English law treats as good consideration, and a deliberate promise made to discharge a moral duty can be enforced. A gratuitous promise, or a variation unsupported by consideration, may bind here where it would not in England.

Where English law took over, and how far

English law was never received into Sri Lanka as a whole. It was introduced by statute, for a defined list of subjects, by the Civil Law Ordinance, No. 5 of 1852, which took effect on 1 July 1853 and is now Chapter 79. Its long title is candid about what it was for: an Ordinance to introduce into Sri Lanka the law of England in certain cases, and to restrict the operation of the Kandyan law.

The reason was commercial. By the middle of the nineteenth century Colombo was trading on English terms, with English shipping, English insurers and English banks, and the Roman-Dutch rules on those subjects were of no use to anyone transacting. Rather than let the courts anglicise commercial law case by case, the legislature made the choice openly and named the subjects.

Four points follow, and each of them is a trap for someone reasoning from the English position.

The list is a list. A subject not named does not attract English law merely because it feels commercial. Bills of exchange and promissory notes are not in either section, and are governed instead by their own Ordinance.

The proviso to section 3 is decisive on land. Whatever else the Ordinance did, it kept English law out of the tenure, conveyance, assurance of, and succession to, immovable property. Anyone advising on Sri Lankan land is in Roman-Dutch territory by force of statute.

Section 6 takes contracts made abroad out of the Ordinance entirely. It provides that nothing in the preceding sections shall affect a question arising for adjudication in Sri Lanka upon a contract made abroad, which is to be determined as if the Ordinance had not been enacted. For a foreign party whose agreement was signed elsewhere, that provision is worth reading before anything else in the statute.

And the reference throughout is to the law as it would be administered in England in the like case at the corresponding period. Those last words settle what a foreign reader usually asks next: the courts have read them as picking up later English developments, statute included, rather than freezing the law at 1852. The live argument is at the edges, over whether English legislation implementing conventions Sri Lanka has not ratified comes in with it.

One more provision earns its place here. Section 5 fixes the recoverable rate of interest at twelve per centum where interest is payable by law and no different rate has been agreed, and caps the amount recoverable as interest or arrears of interest so that it may not exceed the principal.

And one requirement is purely local, older than the 1852 Ordinance, and more dangerous than either inherited system. Under section 2 of the Prevention of Frauds Ordinance, No. 7 of 1840, no sale, transfer, or mortgage of land or other immovable property is of force or avail in law unless it is in writing, signed in the presence of a licensed notary public and two or more witnesses present at the same time, and duly attested by them. The Supreme Court treats those requirements as mandatory: non-compliance does not make the deed defective, it makes it a nullity. A foreign party that executes a Sri Lankan land document the way it would execute one at home has not acquired anything, and the defect cannot be cured after the fact.

Statute, which beats both

Most commercial questions a foreign party actually brings to a Sri Lankan lawyer are answered by an Act, and neither inherited system reaches them.

Sale of goods is the clearest illustration, and it is not the illustration one would expect. It is named in neither section of the 1852 Ordinance, but it is not therefore left to the general law either: it was codified by the Sale of Goods Ordinance, No. 11 of 1896, which took effect on 1 January 1897, follows the English codification of the period closely, and then applies the rules of English law itself so far as they are not inconsistent with the Ordinance. Companies, arbitration, intellectual property, employment and personal data are each governed by their own modern statute in the same way.

Where an Act covers the ground, the inherited law is displaced to that extent and the drafting of the Act is what matters. This is the ordinary position in any common-law jurisdiction and it should reassure rather than worry a foreign adviser. The mixed inheritance is most visible in the areas statute has left alone, which are largely private-law areas: property, obligations, family and succession.

Prescription, where the periods will surprise you

Limitation is called prescription here and is governed by the Prescription Ordinance, No. 22 of 1871, in force since 1 January 1872 and amended since. The periods are short, they vary by cause of action rather than by a general rule, and several of them are far shorter than a common-law practitioner would expect.

The six-year period for written contracts happens to match the English one, which is precisely what makes the rest dangerous. An unpaid invoice for goods delivered prescribes in a year. A claim for damage prescribes in two. An adviser who carries over a six-year assumption from home will be right about the written contract and wrong about almost everything around it, and prescription is not a defect that can be cured once it has run.

The personal laws, which apply to people rather than to subjects

Alongside the general law, three personal laws apply to particular communities. They are not optional, they are not custom tolerated by the courts, and each rests on statute.

Their reach is real but bounded. They govern marriage, divorce, matrimonial property, succession, and gifts of property. That last one is easy to miss and it is a title question: under the Kandyan Law Declaration and Amendment Ordinance a donor may in his lifetime revoke a gift, in whole or in part and without the donee consenting, unless it falls within the statutory exceptions. A revocable deed of gift sitting in a chain of title is a defect a foreign buyer's adviser has no reason to look for. What the personal laws do not govern is commercial dealing, so a company contracting with a Sri Lankan counterparty has no need to know which personal law applies to its directors.

They matter to a foreign lawyer in two situations, and both are common. The first is an estate. Where a Sri Lankan asset passes on death the personal law of the deceased may decide who takes it, and a foreign will may not produce the result its draftsman intended. The reach can be longer than a foreign adviser expects: the Muslim Intestate Succession Ordinance applies to a deceased Muslim who at death was domiciled in Sri Lanka or was the owner of immovable property here, so it can govern the estate of someone who never lived in the country and simply owned land in it.

The second is buying land subject to the Tesawalamai. The Thesawalamai Pre-emption Ordinance gives co-owners, and those who would be the vendor's heirs on intestacy, a right in preference to all other persons to buy at the proposed price or at market value. It is narrower than it sounds and sharper than it looks. It bites only where what is sold is an undivided share or interest, and never where the vendor holds in sole ownership. But where it does bite, notice is given by a notarially attested instrument which need not be registered, so it will not necessarily surface on a search.

Why the courtroom still feels familiar

The substantive law is mixed. The machinery is not.

Procedure is governed by the Civil Procedure Code, No. 2 of 1889, and evidence by the Evidence Ordinance, No. 14 of 1895. Neither is English. The Code was modelled on the Indian Codes of 1877 and 1882, with the New York Code of 1880 and the English Rules of Court as secondary sources; the Evidence Ordinance reproduces Stephen's Indian Evidence Act of 1872 almost verbatim. Two things follow that are worth having. Indian authority is regularly cited on both, so the general warning against importing an Indian answer does not apply here. And the law of evidence is codified, which it never was in England: relevance, hearsay and admissions are statutory, and English authority is persuasive only where the Ordinance is silent. The court structure rests on Article 105 of the Constitution and the Judicature Act, No. 2 of 1978, and a foreign party's commercial dispute will usually be heard in the Commercial High Court in Colombo. Judgments are written in the style a common-law reader expects, pleadings do what pleadings do, and advocacy is adversarial.

Precedent binds, which is a British import rather than a Roman-Dutch feature: a Continental system does not treat a prior decision as a source of law in the same way. Appeals lay to the Judicial Committee of the Privy Council until the Court of Appeal Act, No. 44 of 1971, whose section 18 declared that no appeal shall lie from any judgment or order of the Supreme Court or any other court or tribunal to Her Majesty in Council, and whose section 14 repealed the Appeals (Privy Council) Ordinance. The Act came into operation on 15 November 1971. Appeals still registered at the office of the Privy Council on that date were not extinguished: section 19 deemed them appeals duly made to the new appellate court in Ceylon, and the London proceedings on them were discontinued. The appellate court the 1971 Act created did not itself survive the constitutional upheavals of the decade, and the present Court of Appeal is a creature of the 1978 Constitution. The 1971 Act is cited here for the one thing it settled permanently. That is why Sri Lankan cases appear in the Privy Council reports, and why English authority still carries persuasive weight beyond the subjects the 1852 Ordinance names.

The practical effect is that a foreign litigator finds the process legible and the substantive answers occasionally surprising. That is the opposite of the usual difficulty with an unfamiliar jurisdiction, and it is why an error here can go unnoticed until it matters.

Working out which law applies

For a lawyer with a question rather than an interest in comparative law, the order of enquiry is short.

1. Was the contract made abroad? If so, section 6 of the Civil Law Ordinance takes the question outside that Ordinance altogether.
2. Is there a Sri Lankan statute on the subject? If so it governs, and the inherited law matters only where the Act is silent or ambiguous.
3. Is the subject named in section 2 or section 3 of the Civil Law Ordinance? If so English law applies to it, subject to the proviso that keeps it away from immovable property.
4. Does the question concern marriage, matrimonial property or succession for a person to whom a personal law applies? If so that law may displace the general law.
5. If none of the above, the Roman-Dutch rule governs.

The step most often skipped is the second, and the step most often got wrong is the last, because an adviser who reaches it will tend to fill the gap with the answer from their own system.

None of this makes Sri Lanka a difficult jurisdiction to instruct in. It makes it one where the governing law has to be identified rather than assumed, and where the identification is cheap at the outset and expensive once a dispute has started.