The rise of the comparative approach in Russian legal scholarship as a factor in the modernisation of civil legislation, from the Svod Zakonov of 1833 to the Draft Civil Code of 1905

2019 ◽  
Vol 87 (4) ◽  
pp. 629-650
Author(s):  
Dmitry Poldnikov
Keyword(s):  
19Th Century ◽  
Civil Law ◽  
Civil Code ◽  
Comparative Approach ◽  
Legal Scholarship ◽  
Positive Law ◽  
The 19Th Century

SummaryIn the second half of the 19th century Russian positive law underwent a rapid and profound reform. It is best illustrated by the legislation in the domain of civil law, as one compares the pre-reformed casuistic and inconsistent Svod Zakonov (Digest of Laws) of 1833 and the ‘westernised’ Draft Civil Code of 1905. This transition was largely facilitated by the emergence of a fully-fledged comparative legislation in Russia.

scholarly journals A Step Towards Equality? The Admission of Women to Guardianship in the Austrian Civil Law in 1914

2021 ◽  
Vol 1 (2/2020) ◽  
pp. 141-170
Author(s):  
Sarah Stutzenstein
Keyword(s):  
19Th Century ◽  
Women's Movement ◽  
Civil Law ◽  
Female Gender ◽  
Civil Code ◽  
Legal Reforms ◽  
Minor Children ◽  
A Minor ◽  
The 19Th Century ◽  
Bürgerliches Gesetzbuch

According to the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch = ABGB) from 1811, there were almost no possibilities for a woman to obtain guardianship of a child. Instead, the married father possessed paternal authority (patria potestas), which included the sole guardianship of his legitimate children. If the father was unable to exercise paternal authority, the courts had to appoint a guardian for his minor children. Based on the assumption that the female gender lacked the necessary abilities, women were generally excluded from guardianship. Only at the end of the 19th century did the women’s movement start to mobilize against the frequent exclusion of women from the guardianship of their own children. Moreover, the drastic neglection of the young made legal reforms ever more urgent. The legal possibilities open to women for taking over guardianship of a minor were first extended with the legislative amendment to the ABGB in 1914 (1. Teilnovelle 1914). This paper will focus on the causes for the extension of legal possibilities of women concerning guardianship due to the first legislative amendment.

scholarly journals BASIC CONDITIONS AND STAGES OF RAISING CONDITIONAL OBLIGATIONS IN RUSSIAN CIVIL LEGISIATION

2020 ◽  
Vol 36 (4) ◽  
pp. 100-105
Author(s):  
L.S. Shestakova ◽  
Keyword(s):  
19Th Century ◽  
Civil Law ◽  
Civil Code ◽  
Court Decisions ◽  
Modern Period ◽  
Compensation For Damage ◽  
Unjustified Enrichment ◽  
The 19Th Century

The article considers the process of formation of the institute of conditioning in Russian legislation since the 19th century. Certain aspects of making court decisions on compensation for damage due to unjustified enrichment in pre-revolutionary Russia are covered. The author analyzed the legislation of Russia in the prerevolutionary periods, the Soviet and modern period in the field of conditioning obligations, which made it possible to form the main concepts, signs, factors and conditions for their emergence. Before the introduction of a separate chapter in the Civil Code of the RSFSR of 1922, devoted to obligations arising from unjustified enrichment, this issue was not regulated by law, court decisions were made on the basis of law governing similar legal relations. In the development of civil law, the question arose of distinguishing conditional obligations from related civil law institutions. For this purpose, the grounds and conditions for the emergence of obligations due to unreasonable enrichment were determined.

scholarly journals INCLUSION OF GEORGIA INTO THE RUSSIAN EMPIRE AND PRESERVATION OF LOCAL LEGISLATION

ASJ. ◽  
2021 ◽  
Vol 2 (56) ◽  
pp. 60-62
Author(s):  
M. Meskhishvili-Pruidze
Keyword(s):  
19Th Century ◽  
Future Development ◽  
Civil Law ◽  
Russian Empire ◽  
Civil Code ◽  
The Caucasus ◽  
Large Period ◽  
The Russian Empire ◽  
The 19Th Century ◽  
The Relationship

The topic of Georgia's inclusion in the Russian Empire is especially relevant, since the relationship between two historical neighbors today it is tense and it is necessary to especially carefully study the historical vicissitudes in order to realize the prospect of their future development. The article concerns the civil code of Russia and Georgia, the adaptation of the Georgian code of laws and the Code of King Vakhtang with all-Russian legislation. The authors consider a large period and cover the relationship between Russia and Georgia during the reign of Peter the First, Catherine the Second, Paul the First, Alexander the First and Alexander the Second. The authors analyze the process of systematization of the all-Russian legislation of 1826-1832 and the adoption of the Civil Code, which prompted local and central administrations to unify private and general imperial law. The authors investigate the use of Georgian civil law in private law relations in the Caucasus in the 19th century.

scholarly journals Two centuries of the civil law in the renewed Serbia 1804-2004

2005 ◽  
Vol 77 (10) ◽  
pp. 151-185
Author(s):  
Dušan Nikolić
Keyword(s):  
20Th Century ◽  
19Th Century ◽  
Legal System ◽  
Civil Law ◽  
Civil Code ◽  
World War ◽  
Member States ◽  
Legal Provisions ◽  
Kingdom Of Yugoslavia ◽  
The 19Th Century

Ever since the renewal of the Serbian national sovereignty in the first decade of the 19th century until today there have been several attempts to completely regulate the field of the civil law through the unique codification, which would, by the virtue of its normative solutions, comply with the tradition, existing social environment and realistic evolutional possibilities. At the beginning there was a plan to partially take over the French Civil Code but this idea was abandoned due to the different level of social development. The conclusion was that the provisions that were drafted for one of the most progressive European states could not be applied in the culturally undeveloped and poor Serbia and that a unique codification should be made, which would be suitable for the Serbian society of that time. Following that idea, they began to work on the codification in the mid thirties of the 19th century. However, the Civil Code of the Principality of Serbia, which was adopted in 1844, was not unique. It basically represented a short and partially revised version of the Austrian Civil Code. In addition to that, some of its provisions were against the tradition of the Serbian people and against the requirements of the existing legal practice. Therefore, there was a proposal to start drafting the new codification. A Commission was established at the beginning of the 20th century, which carried out the work on the new codification until the First World War. This project was abandoned after the war. However, soon after the unification and establishment of the Kingdom of Serbs, Croats and Slovenians, they started working on the harmonization of the legislation. The draft for the Civil Code of the Kingdom of Yugoslavia was finished in 1934. This legal project was never officially adopted either. After the Second World War the new socialist system was introduced. The legal continuance with the legal system of the former Kingdom of Yugoslavia has been broken and the civil legislation from before the war ceased to apply. In order to avoid the entire legal vacuum the courts were allowed to apply the "old legal provisions" that were in compliance with the new political system. That solution introduced legal uncertainty. Therefore the preparatory work on the new civil code was intensified in the mid fifties of the 20th century. The authorities of that time decided to apply the method of partial codification. The idea was to adopt a systematic law for each branch of the civil law and to later join all the provisions in one legal act. The work on codification came to an end at the beginning of the seventies. But the normative competences were then divided between the federal state and the member states. Since there was no more constitutional base for adoption of the single civil code, they continued with a partial codification. The federation adopted laws that belonged to its competence. On the other hand the member states have never adopted the laws in the field of property law and law on contracts and torts. That is a reason why there are number of legal vacuums in this field, which are very often filled up by application of some old legal provisions that are constituent part of the laws of the Kingdom of Yugoslavia. Today, there are no constitutional obstacles to entirely regulate the substance of the civil law, but there is no clear idea and strategy on how to develop this branch of the legal system. Two hundred years after the First Serbian Uprising, Serbia is again at the beginning.

Sources of the recognition of belligerent status

1977 ◽  
Vol 17 (192) ◽  
pp. 111-127 ◽  
Author(s):  
Charles Zorgbibe
Keyword(s):  
Civil War ◽  
19Th Century ◽  
The State ◽  
Sovereign Power ◽  
Equal Status ◽  
Positive Law ◽  
Unilateral Action ◽  
The Government ◽  
The Right ◽  
The 19Th Century

“Whenever a large organized group believes it has the right to resist the sovereign power and considers itself capable of resorting to arms, war between the two parties should take place in the same manner as between nations…” This statement by de Vattel in the 19th century seemed destined to take its place as a part of positive law, constituting part of what was known as recognition of belligerency, tantamount to the recognition by the established government of an equal status for insurgents and regular belligerents. When a civil war became extensive enough, the State attacked would understand that it was wisest to acknowledge the existence of a state of war with part of the population. This would, at the same time, allow the conflict to be seen in a truer light. The unilateral action of the legal government in recognizing belligerency would be the condition for granting belligerent rights to the parties. It would constitute a demonstration of humanity on the part of the government of the State attacked and would also provide that government with prospects for effective pursuit of the war. By admitting that it was forced to resort to war, it would at least have its hands free to make war seriously.

National Report for Spain

2012 ◽  
Keyword(s):  
19Th Century ◽  
21St Century ◽  
Legal System ◽  
Satisfactory Result ◽  
Legal Framework ◽  
Civil Code ◽  
Procedural Law ◽  
National Report ◽  
The 19Th Century ◽  
The Eu

The current insolvency legislation is the result of a long and cumbersome evolution. It was approved on 7 July 2003 (Ley 22/2003, the Insolvency Act 2003 (‘IA’)) and came into force on 1 September 2004, putting an end to one of the most embarrassing situations that the Spanish legal system has ever had to endure: coming into the 21st century with an insolvency legislation dating back to the beginning of the 19th century. The previous insolvency system was composed of as many as five different legal instruments: the Commercial Codes (Codigo de Comercio) of 1885 and 1829 (only partially in force) and the Law on Suspension of Payments of 1922 (Ley de Suspension de Pagos), which regulated some procedural aspects and all material aspects of commercial insolvency; the Civil Code of 1889, which regulated the insolvency of the general—non-commercial—debtor; and the Civil Procedural Law, dating from 1881 (Ley de Enjuiciamiento civil ). It can then be said that the insolvency of a large business in a developed European economy (the fifth largest in the EU) had to be solved with laws that dated from two centuries before. The reform has been a relief and it has greatly modernised Spain’s economic legal legal framework. However, this process was neither easy nor did it produce a fully satisfactory result.

scholarly journals Tributgesetzgebung und ihre Umsetzung in den Vizekönigreichen Peru und Neuspanien im Vergleich

2017 ◽  
Vol 54 ◽  
pp. 211-257
Author(s):  
Sarah Albiez-Wieck
Keyword(s):  
19Th Century ◽  
New Spain ◽  
Comparative Approach ◽  
Colonial Society ◽  
The 19Th Century

Indigenous and afrodescendant tribute payments constituted the central manifestation of the colonial relationship between the Americas and the Spanish crown. This article outlines the development of colonial tributary legislation and its implementation in the viceroyalties of New Spain and Peru from the 16th to the 19th century. It focuses on tribute categories as decisive factors for the formation of the colonial society. The comparative approach reveals that the major differences between New Spain and Peru lay first in the tribute categories for “migrants” and second in the varying degree of implementation of tribute obligations among the afrodescendant population.

scholarly journals The principle of good faith and fair dealing in English contract law

Pravovedenie ◽  
2020 ◽  
Vol 64 (3) ◽  
pp. 312-325
Author(s):  
Jan Halberda ◽  
Keyword(s):  
Civil Law ◽  
Contract Law ◽  
Civil Code ◽  
Good Faith ◽  
Traditional View ◽  
Comparative Approach ◽  
England And Wales ◽  
Fair Dealing ◽  
Objective Sense ◽  
English Law

Given that continental civil law scholarship applies the concept of good faith in either a subjective (honesty in fact) or objective sense (good faith and fair dealing), the present article focuses on the latter one. The traditional view in England and Wales discards the recognition of a general principle of good faith and fair dealing in English law. English courts have adopted a piecemeal solutions approach (as shown by the judicial decisions issued in Interfoto Picture Library (1987) and Walford v. Miles (1992)). Meanwhile, the principle in question, along with the concept of the freedom of contract, is one of the most important principles of the continental civil law tradition (cf. art. 1104 of the French Civil Code, § 157, § 242 of the German Bürgerliches Gesetzbuch, art. 2 (1) of the Swiss Zivilgesetzbuch, art. 6:2 Burgerlijk Wetboek, art. 5 of the Polish Civil Code, art. 2 (1) Common European Sales Law, art. 1:201 Principles of European Contract Law, art. III1:103 Draft Common Frame of Reference). The current work analyzes recent English case law (in particular Yam Seng (2013)), which seems to acknowledge the principle of good faith and fair dealing while rejecting the traditional view mentioned above. The comparative approach — references to American, and Commonwealth law, as well as to that of particular European states — is taken into account. The author claims that hostility to the concept of good faith in an objective sense in English law is superficial. One may expect that in the near future courts in England and Wales will follow the path taken by courts in the United States (§ 205 of the Restatement (Second) of Contracts (1981)), Australia (Renard Constructions (1992)) and Canada (Bhasin v. Hrynew (2014)), and they will finally recognize good faith as an underlying principle.

scholarly journals CLASSIFICATION OF INVALID TRANSACTIONS IN PRESENT LAW DOCTRINE OF EUROPEAN COUNTRIES

10.23856/4624 ◽  
2021 ◽  
Vol 46 (3) ◽  
pp. 190-194
Author(s):  
Roman Tashian
Keyword(s):  
19Th Century ◽  
Legal System ◽  
Civil Law ◽  
European Countries ◽  
Ancient Rome ◽  
Relevant Today ◽  
The Times ◽  
Traditional Approaches ◽  
The 19Th Century

The aim of this paper is providing the analysis of the classification of invalid transactions into void and voidable, which is recognized in many countries. This classification takes roots from the times of Ancient Rome, and was further developed in the 19th century thanks to the works of pandectists, primarily F.K. von Savigny and B. Windscheid. Today many European states are reforming their civil legislation. This fact allows us to take a fresh look at many institutions of civil law. In addition to the traditional approaches that are characteristic of the countries of the pandecto system, special attention should be paid to the “theorie moderne”, which is widespread in the countries of the Romanesque legal system. In the context of the invalidity of transactions, the article analyzes the provisions of the legislation of the leading European countries – Germany, France, the Netherlands, Italy, Spain, Belgium. Based on the above, it is concluded that this classification of the invalidity of transactions has not lost its meaning and is relevant today.

Hofer, Sibylle, „Freier Mann im freien Staat” Persönlichkeitsschutz in der Schweiz

2019 ◽  
Vol 136 (1) ◽  
pp. 261-303
Author(s):  
Sibylle Hofer
Keyword(s):  
19Th Century ◽  
Public Law ◽  
Civil Code ◽  
Fundamental Difference ◽  
Political Crisis ◽  
Political Rights ◽  
Legal Entity ◽  
Legal Personality ◽  
The Difference ◽  
The 19Th Century

Abstract “Freier Mann im freien Staat”. The Protection of Legal Personality in Switzerland. The Swiss Civil Code (1912) guarantees a comprehensive protection of legal personality. In this respect there exists a fundamental difference to the civil code of Germany (1900). The difference can be traced back to the 19th century when in Switzerland legal personality was not merely understood as an abstract legal entity, but rather as an expression of citizenship. The protection of legal personality therefore included the protection of personal freedom. This freedom was not only understood to protect a person’s capacity to act in his legal sphere, but also to protect his political rights and for this reason democracy. Resulting from this understanding it became self-evident that the protection of legal personality had to be comprehensive. This concept pervades Eugen Huber’s writings and especially his legislative contributions to the creation of the Swiss Civil Code. Thereby he constructed a model which was particularly referred to by prominent public law scholars later in times of political crisis (the 1940s).

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