Working Towards Codification of Israeli Private Law: Between Common and Civil Law

Author(s):  
Alfredo Mordechai Rabello
Keyword(s):  
Author(s):  
Lionel Smith
Keyword(s):  

This chapter aims to answer the question, “what can the civil law tradition tell us about the New Private Law?” It seeks to do this by offering one civilian's perspective on private law, on U.S. private law, and on the New Private Law. In order to answer that question, it is necessary to say a little bit about what is a civilian perspective, or in other words, what makes a jurist a civilian. This is a question to which many different answers could be given. The chapter then looks at the different perspective that a civilian may have on what is the domain of private law. It also asks what insights the civilian's understanding of the discipline of law may offer to common lawyers. From a civilian perspective, the future of the New Private Law will be interesting indeed.


2021 ◽  
Vol 21 (3) ◽  
pp. 7-107
Author(s):  
M.D. TYAZHBIN

The article is dedicated to the category of subordination agreements. Based on the concept of conflict of rights in personam, the author makes an attempt to integrate this category into the system of private law, to determine the legal nature of subordination, and from these positions to assess the effectiveness of Art. 309.1 of the Civil Code of the Russian Federation, implemented in the course of the civil law reform.


2019 ◽  
Vol 4 (1) ◽  
pp. 20-31
Author(s):  
Anwar Hidayat

Abstrak Hukum merupakan suatu sistem terpenting di dalam masyarakat untuk mengatur kehidupan yang berkaitan dengan sebuat tatanan yang selalu bergerak baik secara evolutif maupun revolusioner. Tatanan diatur dalam hukum itu sendiri meliputi tatanan transendetal, tatanan sosial/masyarakat dan tatanan politik. Hukum perdata yang merupakan ketentuan atau peraturan yang berkaitan dengan pribadi seseorang dengan orang lain, atau juga hukum sipil memiliki ruang lingkup yang luas dalam pengaturannya. Salah satu bidang hukum yang mengatur hubungan-hubungan antara individu-individu dalam masayrakat dengan sarana tertentu. Penggolongan dari hukum perdata yang ada saat ini antara lain meliputi: Hukum keluarga, Hukum harta kekayaan, Hukum kebendaan, Hukum perikatan, dan Hukum waris. Kajian kritis terhadap hukum perdata yang telah berlaku di Indonesia dengan menggunakan metode filsafat (filosofis), maka seharusya yang dijadikan dasar pemikirannya ialah falsafah Pancasila. Sebagaimana diketahui bahwa Pancasila merupakan sumber dari segala sumber hukum negara Indonesia. Hal yang demikian ini dirasa sesuai mengingat falsafah Pancasila adalah merupakan ruh perjuangan dari para pejuang bangsa, sebagai alat pemersatu, dari yang sebelumnya terkotak-kotak oleh suatu daerah/wilayah, ras, suku, golongan dan agama. Kata Kunci: Hukum Perdata, Filosofis, Pancasila   Abstract The law is the most important system in society to regulate life in relation to an order that is always moving both evolutionarily and revolutionarily. Order is regulated in the law itself including transcendental order, social/community order and political order. Private law which is a provision or regulation relating to someone's personal with others, or also civil law has a broad scope in its regulation. One area of ​​law that regulates the relationships between individuals in society with certain means. The current classification of private law includes: Family law, Property law, Material law, Engagement law, and inheritance law. Critical study of private law that has prevailed in Indonesia using philoshopy (philosophical) methods, then the basis for thinking should be the philosophy of Pancasila. As is known that Pancasila is the source of all sources of Indonesian state law. This is considered appropriate given the philosophy of Pancasila is the spirit of the struggle of the nation's fighters, as a unifying tool, from previously divided by a region / region, race, ethnicity, class and religion. Keyword: Private Law, Philosophical, Pancasila.


2021 ◽  
Vol 2 ◽  
pp. 48-54
Author(s):  
V. V. Kulakov ◽  

The article deals with the problems associated with the differentiation of the limitation period and the time limit for applying to the court. The conclusion is made that it is impossible to attribute the limitation period to the preclusive period. The possibility of applying the limitation period to legal relations of different industry affiliation is analyzed. Based on the analysis of inter-industry relations of private law branches of law, the conclusion is made that it is impossible to use inter-industry analogy in the application of civil law norms on the limitation period to labor relations.


Author(s):  
Chen Lei

AbstractWhile Chinese law occupies a sui generis position, namely, East Asian law, it is generally acknowledged that Chinese law comfortably wears the dress of civil law. The Chinese civil law tradition finds its historical roots in the late Qing Dynasty (1902–1911). Long before Alan Watson's magisterial book on the legal transplant, China experimented with importing foreign law. More to the point, the newly enacted Chinese Property Code, in effect for more than two years still has this feature. The new property code is an evolution rather than a revolution, since it is little more than an organic development of the existing law. Consequently, one would expect to find in the new legislation many traces of its past history. It is worth noting that any legal development is not a complete break with its past. Chinese law is no exception. A historical perspective exploring the origin of the traditions of civil law is both necessary and useful for it can shed light on the direction of the future development of Chinese private law.


2008 ◽  
Vol 21 (2) ◽  
pp. 459-476
Author(s):  
Stephen A. Smith

In The Foundations of Private Law James Gordley argues that the modern private law in common and civil law jurisdictions is best explained on the basis of a neo-Aristotelian theory first developed by a group of 16th century Spanish thinkers known as the ‘late scholastics’. The concepts of distributive and commutative justice that, according to Gordley, lay at core of the scholastics’ theory and that explain, respectively, modern property law and the law of obligations (contract, tort, unjust enrichment), though ignored and disparaged for much of the 19th and 20th centuries, are today familiar to most private law scholars (thanks in part to Gordley’s earlier work). Yet Gordley’s understanding of these concepts and, in particular, of their relationship both to one another and to the apex idea of ‘living a distinctively human life’ is unique, setting his account apart not just from utilitarian and other ‘modern’ accounts of private law, but also from other neo-Aristotelian theories (e.g., those of Ernest Weinrib or Jules Coleman). In Gordley’s presentation, commutative (or ‘corrective’) justice is derived from distributive justice and distributive justice is derived from the idea of the distinctively human life. Confidently traversing a wide range of historical, comparative and theoretical materials, the book’s argument is at once ambitious, learned, and elegantly presented. But as a theoretical account of the foundations of the modern private law it is unpersuasive. The book’s own account of property law suggests that in practice the idea of distributive justice does little, if any, work in explaining the rules we actually have. Nor is it clear how, if at all, distributive justice flows from the allegedly foundational idea of the ’distinctively human life’. As for commutative justice, it is not clear why, if is derived from distributive justice in the way Gordley believes, the courts should care about it. Finally, but perhaps most significantly, Gordley’s conception of commutative justice is unable to account for central features of the law of obligations.


Sign in / Sign up

Export Citation Format

Share Document