A Strange Rule of Smṛti, and a Suggested Solution

1958 ◽  
Vol 90 (1-2) ◽  
pp. 17-25
Author(s):  
J. Duncan M. Derrett
Keyword(s):  
Beneficial Effect ◽  
Practical Importance ◽  
Civil Law ◽  
British India ◽  
Indian Science ◽  
The Law ◽  
Personal Law ◽  
New System ◽  
Made In ◽  
Academic Study

Since the period between May, 1955, and December, 1956, when the Hindus of India lost their system of “personal law”, and the latter was replaced by a new system comprised in the so-called “Hindu Code”, the Sanskrit books which contain the accumulated learning of the dharmaśāstra, or so much of the ancient Indian “science of religious-and-civil law” as survives the ravages of time and the neglect of private owners of manuscripts, have ceased to be the fundamental source of Hindu law, and it is only in marginal contexts that for practical purposes reference to them will ever again be made in that country. Yet the relegation of their ancient learning to practical uselessness may be expected to have a beneficial effect on the study of the dharmaśāstra itself, and that literature, which has been widely neglected in all continents, may once again receive the volume of attention which it could command about eighty years ago. About that time it was still very doubtful what the śāstra had to say on topics of practical importance, and Bühler and Jolly, for example, could be sure that their researches, despite their predilection for the ancient and the “original”, would be of use in the Courts in addition to providing material for academic exercises. By the end of the first decade of this century it was evident that at least as far as British India was concerned the law was about to develop along lines which were to a certain extent incompatible with the śāstra, and the relation of academic study to practical advocacy became intolerably delicate.

6. Domicile, nationality, and habitual residence

2016 ◽  
Author(s):  
Jonathan Hill
Keyword(s):  
Common Law ◽  
Civil Law ◽  
International Agreement ◽  
Habitual Residence ◽  
Choice Of Law ◽  
The World ◽  
Permanent Home ◽  
English Law ◽  
The Law ◽  
Personal Law

The object of jurisdictional rules is to determine an appropriate forum and choice of law rules are designed to lead to the application of the most appropriate law, the law that generally the parties might reasonably expect to apply. The test for recognition of foreign judgments is not dissimilar. A judgment granted by an appropriate forum should normally be recognised. The problem is one of ascertaining the connecting factor (or factors) which would best satisfy the criterion of appropriateness. With regards to personal connecting factors, there is little international agreement as to the appropriate test of ‘belonging’. In England and most common law countries, the traditional personal connecting factor is domicile, which loosely translates as a person's permanent home. One of the problems here is that domicile is a connecting factor which is interpreted differently in various parts of the world. In contrast, most of continental Europe and other civil law countries have traditionally used nationality as the basic connecting factor, especially for choice of law purposes; the personal law is the law of the country of which the person is a citizen. In some countries, including England, another connecting factor, habitual residence, has emerged. This is increasingly being used for the purposes of jurisdiction rules and in the law relating to recognition of foreign judgments. This chapter examines each of these personal connecting factors. Primary emphasis is laid on domicile and habitual residence as the two main connecting factors employed by English law.

scholarly journals Improving the Regulation of Joint Rights in Civil Law

2021 ◽  
Vol 17 (30) ◽  
pp. 69
Author(s):  
Ekaterine Nandoshvili
Keyword(s):  
Common Property ◽  
Practical Importance ◽  
Civil Law ◽  
Case Law ◽  
Systematic Analysis ◽  
Legal Literature ◽  
The Common ◽  
The Law ◽  
Correct Understanding ◽  
Full Protection

This paper focuses on analyzing the norms regulating joint rights, presents their shortcomings, and criticizes the misconceptions expressed in the legal literature about the types of common property, joint rights, and co-ownership. The paper considers the incompleteness of the provisions regulating the legal consequences of the abolition of joint rights as a serious shortcoming of the Civil Code of Georgia. A novelty is a mechanism proposed in this paper, and it is possible to assign the entire property to one of the participants in case of abolition of joint right, in exchange for compensation for the shareholder who requests the abolition of joint right and the allocation of the amount. The objective of the paper is to analyze certain aspects of the regulation of joint rights, which, together with the theoretical, have the practical importance that will contribute to a correct understanding of a number of issues and the correct qualification of the rights and obligations of participants of the legally binding relationship, rising on the basis of joint rights. To achieve this objective, logical and systematic analysis of norms as well as comparative-legal methods are used. Using these methods, it is possible to determine the strengths and weaknesses of the norms of Georgian law or to better understand their content, to identify gaps in the legislation in court practice, as well as to develop proposals and recommendations for the improvement of norms and practice. The problems are analyzed using the examples of Georgian, German, and Swiss civil law. The common features and shortcomings were identified between the Georgian and German models regarding the issue of the consequences of the abolition of joint rights. The Swiss model appears to be the most perfect and effective model among the named ones. The study found that neither in practice nor under the law is a shareholder allowed to sell the joint item in an auction by redeeming the shares of other owners. The extinction of this opportunity for the owner reduces the essence of ownership. In order to extend the guarantees for full protection of the property rights, a view is proposed on the need to develop an approach, similar to the Swiss model, and the implementation should be ensured by case law before the law is changed.

Peran Notaris/PPAT Dalam Pembuatan Surat Kuasa Membebankan Hak Tanggungan Dalam Perjanjian Kredit Pemilikan Rumah (Studi Di Pt. Bank Tabungan Negara Tbk. Cabang Cirebon)

Jurnal Akta ◽  
2018 ◽  
Vol 5 (1) ◽  
pp. 1
Author(s):  
Yusup Sugiarto ◽  
Gunarto Gunarto
Keyword(s):  
Descriptive Analysis ◽  
Civil Law ◽  
Power Of Attorney ◽  
The Law ◽  
Credit Agreement

ABSTRAKKebutuhan akan lembaga notariat tidak terlepas dari kebutuhan akan perlunya pembuktian tertulis dalam lapangan hukum perdata. Mengingat keadaan ini maka notaris tidak saja berperan sebagai orang yang membuat alat bukti autentik namun juga sebagai penemu hukum. Notaris dalam profesinya sesungguhnya merupakan instansi yang dengan akta-aktanya menimbulkan alat-alat pembuktian tertulis dengan mempunyai sifat autentik. Penelitian ini bertujuan untuk menganalisis pelaksanaan penandatanganan akta notaris dalam pembuatan SKMHT dan akibat hukum penandatanganan akta SKMHT oleh penerima kuasa tidak di hadapan notaris dalam perjanjian kredit pemilikan rumah. Metode yang digunakan dalam penelitian ini adalah pendekatan yuridis normatif, sedangkan sifat dari penelitiannya sendiri bersifat deskriptif analisis. Penandatanganan akta notaris oleh penerima kuasa dalam akta SKMHT dimungkinkan untuk dilakukan tidak di hadapan notaris, karena lazimnya suatu akta SKMHT ada kaitannya dengan akta perjanjian kredit yang telah dibuat terlebih dahulu oleh para pihak. Akibat hukumnya penerima kuasa dalam akta SKMHT menjadi terikat untuk mematuhi ketentuan-ketentuan yang ada dalam SKMHT.Kata kunci: notaris, akta, perdata, kredit, perjanjian. ABSTRACTThe need for notarial institutions is inseparable from the need for the necessity of verification in the field of civil law. In view of this situation the notary not only plays the role of the person who makes authentic evidence but also the inventor of the law. Notary in his profession is in fact an institution which with its deeds evokes written proof means with authentic nature. This study aims to analyse the execution of the signing of notary deed in the making of SKMHT and the effect of the signing of SKMHT deed by the power of attorney not before the notary in the mortgage agreement. The method used in this study is the normative juridical approach, while the nature of the research itself is descriptive analysis. The signing of notarial deed by the power of attorney in the deed of SKMHT is possible to be done not in the presence of a notary, because usually a deed of SKMHT is related to the credit agreement which has been made beforehand by the parties. As a result of the law the power of attorney in the SKMHT deed becomes bound to comply with the provisions contained in SKMHT.Keywords: notary, deed, civil, credit, agreement.

The Chemical Effect in Medicine Interaction Determining the Form and Speed of Psychical Involution in the Prosthetic Restauration in the Edentulous

2018 ◽  
Vol 69 (8) ◽  
pp. 2306-2310
Author(s):  
Aureliana Caraiane ◽  
Razvan Leata ◽  
Veronica Toba ◽  
Doina Vesa ◽  
Luana Andreea Macovei ◽  
...  
Keyword(s):  
Practical Importance ◽  
Psychosocial Problems ◽  
Well Being ◽  
The Elderly ◽  
Chemical Effect ◽  
Special Importance ◽  
Dramatic Form ◽  
Specific Disorders ◽  
The Individual ◽  
Made In

The progress made in dentistry during the latest decades is due, conceptually, to the new, systemic vision of man, which has also taken place in this field of medicine. In this context, the link between organic and psychic is indestructible. Thus illness is understood as a drama in which the somatic process has a psychic value, and the mental one has a body value. It is known that the morphological and functional integrity of the dental system, health and vigorousness, gives the individual a state of well-being that affects his somatic and psychic health, as any disturbance at this level entails repercussions in psychological and social behavior. Such a disruption is the total edification that seriously alters not only the dental system but the whole organism, putting various biological and psychosocial problems to the practitioner. The total expression represents not only a physical disability but also a psychological one. A special importance in studying psychological changes at total edentulous presents the psychological aspects of senile involution. This is not only a theoretical but also a practical importance due to the increase in the number of elderly people. Through the researches of the present paper we intend to present the reality of the psychological manifestations in the total edentation, which is objectified on different methods of psychodiagnosis in the first part, in order for the second part to be addressed to problems of prosthetic psychotherapy.The study comprises a group of 43 patients, of whom 24 were men and 19 women with total uni or bimaxilar edentation. Total edentation can be and is responsible for somatopsychic alterations, along with other pathogens, general, local, social, which sometimes can take a dramatic form, converting, where the area is also favorable, a pure somatic disease, for those who are not in psychopathy or even psychosis, although these latter cases are extremely rare and especially in youngsters, which would disrupt not only the person�s behavior as an individual, but also their status, function and social integrity. The treatment of dental and psychological complex is mandatory for any patient, but especially for the elderly, where recovery is more difficult, with disease-specific disorders adding to those of senescence.

From the Law of Ransom to the Law of Release

2018 ◽  
Author(s):  
Will Smiley
Keyword(s):  
The State ◽  
Legal Tradition ◽  
The Face ◽  
The Law ◽  
New System

This chapter charts the “Law of Release,” a new system of rules that replaced the Law of Ransom. These rules were based on treaties signed from 1739 onward, but also on a variety of lesser agreements and unwritten understandings and the Islamic legal tradition. They were renewed frequently, and structured captivity as late as the 1850s. This chapter will explore the basic structures of the Law of Release—how captives were found, released, and sent home, and how slaveowners were convinced, coerced, or compensated to cooperate. I argue that while release was initially limited to Istanbul, and to the most visible captives, it extended both into elite households, and outward along the Ottoman corridors of power. This process tested the limits of the Ottoman state, forcing the state to cooperate with Russian officials for the benefit of both. They did so in the face of resistance from captors.

V. II principio dell’irretroattività della legge nell’esperienza giuridica romana dell’età repubblicana

2021 ◽  
Vol 138 (1) ◽  
pp. 245-273
Author(s):  
Umberto Laffi
Keyword(s):  
Criminal Law ◽  
Civil Law ◽  
First Century ◽  
The Political ◽  
Political Struggle ◽  
Dynamic Relationship ◽  
Depth Analysis ◽  
The Law ◽  
Criminal Legislation ◽  
Epigraphic Evidence

Abstract The Principle of the Irretroactivity of the Law in the Roman Legal Experience in the Republican Age. Through an in-depth analysis of literary and legal sources (primarily Cicero) and of epigraphic evidence, the author demonstrates that the principle of the law’s non-retroactivity was known to, and applied by, the Romans since the Republican age. The political struggle favored on several occasions the violation of this principle by imposing an extraordinary criminal legislation, aimed at sanctioning past behaviors of adversaries. But, although with undeniable limits of effectiveness in the dynamic relationship with the retroactivity, the author acknowledges that at the end of the first century BC non-retroactivity appeared as the dominant principle, consolidated both in the field of the civil law as well as substantive criminal law.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

The Kaččā and the Pakkā: Disenchanting the Film Event in Pakistan

2020 ◽  
Vol 62 (2) ◽  
pp. 262-295
Author(s):  
Timothy P. A. Cooper
Keyword(s):  
British Empire ◽  
Affective Responses ◽  
British India ◽  
Film Exhibition ◽  
The Creation ◽  
First Contact ◽  
Made In

AbstractFor many city dwellers in Pakistan the distant memory of outdoor cinemas in their ancestral villages rekindles the thrill of first contact with film exhibition. This paper considers attempts made in colonial British India and postcolonial Pakistan to understand, wield, and benefit from the staging of such memorable and affective filmic events. In its cultivation of “cinema-minded” subjects, the British Empire commissioned studies of audiences and their reactions to film exhibition in hopes of managing the unruly morality and materiality of the cinematic apparatus. After Partition and the creation of the Dominion of Pakistan, similar studies continued, evincing a residual strategy of elicited contact. The elicitation of film contact aimed at the exertion and commandment of the event of film exhibition for the purposes of knowing their constituent subjects at a moment of malleability. Yet the Empire's struggle with the perceived problems of “Muslim tastes” and audience members’ ambivalence over rural screenings in post-Partition Pakistan calls for a reconsideration of the efficacy of these tactics. I argue that what complicated these encounters are affective responses that questioned the address, permissibility, and efficacy of film exhibition. In these tactics of elucidation, disenchantment, and denial, ruptures are refused and the new is dismissed as inoperable, incompatible, or impermissible.

University Education and English Ecclesiastical Lawyers 1400–1650

2011 ◽  
Vol 13 (2) ◽  
pp. 132-145 ◽  
Author(s):  
Richard Helmholz
Keyword(s):  
Thirteenth Century ◽  
Legal Education ◽  
University Education ◽  
Legal Practice ◽  
Negative Opinion ◽  
Ius Commune ◽  
The Law ◽  
The Church ◽  
Academic Study

Most recent historians have expressed a negative opinion of the quality of legal education at the English universities between 1400 and 1650. The academic study of law at Oxford and Cambridge, they have stated, was easy, antiquated and impractical. The curriculum had not changed from the form it assumed in the thirteenth century, and it did little to prepare students for their careers. This article challenges that opinion by examining the inner nature of the ius commune, the law that was applied in the courts of the church, and also by examining some of the works of practice compiled by English civilians during the period. Those works show that the negative opinion rests in part upon a misunderstanding of the nature of legal practice during earlier centuries. In fact, concentration on the texts of the Roman and canon laws, as old-fashioned as it seems to us, was well suited for the tasks advocates and judges would face once they left the academy. It also provided the stimulus needed for advance in the law of the church itself; their legal education made available to potential advocates and judges skills that would permit a sophisticated application of the ius commune, one better suited to their times. The article provides evidence of how this happened.1

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