Legal Features of the Provisions of Unjust Enrichment in Jordanian Civil Law and Comparative Law

2021 ◽  
pp. 1-14
Author(s):  
Sahib al-Fatlawi ◽  
Derar al-Daboubi
Keyword(s):  
Civil Law ◽  
Comparative Law ◽  
Civil Code ◽  
Roman Law ◽  
French Law ◽  
Independent Source ◽  
Unjust Enrichment ◽  
Legal Provisions ◽  
Islamic Jurisprudence

Abstract Unjust enrichment is considered one source of obligations, which stands in contrast to harmful acts as another source of obligation in the Jordanian Civil Code (JCC). The Unjust Enrichment Rule has developed historically from Roman law, through Islamic jurisprudence, then French law and jurisprudence to modern laws, such as that in Egypt influenced by French law. All these laws have recognised the Unjust Enrichment Rule as an independent source of obligation. Although the JCC was influenced by Islamic jurisprudence, Arab laws, such as the Egyptian Civil Code, and foreign-influenced Arab laws, its features distinguish it from other laws, either in terms of naming the source or the details related to its legal provisions. JCC’s special features need to be highlighted, defined and evaluated for comparison with other laws, i.e., proving beneficial when enacting a new JCC or defining it as unique rather than a copy of other precedent Arab laws.

scholarly journals Fiducia-warranty in the Romanian law - a possible practical transposition from the French law?

2020 ◽  
Vol 12 ◽  
pp. 77-85
Author(s):  
Roxana Chirieac
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Roman Law ◽  
Present Moment ◽  
French Law ◽  
Anglo Saxon ◽  
Current Regulation ◽  
National Legislation

The fiducia is an institution of long standing tradition in the civil law systems, being regulated in these ever since the roman law period. But, by the assuming the Napoleon French Civil Code, the fiducia was taken out of the regulations of our country, until the entry into force of the 2011 Civil Code. Then, our legislator decided to acquire the French regulations and reintroduce in the national regulations the fiducia institution. Unfortunately, the institution did not come to know success – although meant to compete with the Anglo-Saxon trust, at the present moment there are up to 200 fiducia registered in Romania. On the opposite side, almost 20% of Americans owns a type of trust. The circumstances in Romania are similar to those in France, where the current regulation of the fiducia was „conceived”, where scholars as well as practitioners have tried the implementation of different variations of the fiducia in order to make the institution applicable. Thus were created fiducia-warranty (fiducie sûreté), fiducia management (fiducie gestion), and scholars have spoke about fiducia concessionary (fiducie libéralité). The present study aims to analyse the fiducia warranty institution and to suggest a „transposition” of this practice in the Romanian legislation. We do not consider that the fiducia will generate as much enthusiasm as the trust, that is much more flexible in its constitution as well as its exploitation, but we consider that it may develop its application in our national legislation.

A megbízási szerződés szabályozásának történeti vázlata Romániában

2020 ◽  
Vol 3 (1) ◽  
pp. 5-22
Author(s):  
Előd Bartis
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Roman Law ◽  
Historical Overview ◽  
Commercial Code

The study constitutes a brief historical overview of the development of the contract of mandate, as regulated in Romanian law. Firstly, the roots of this contract in antiquity and in Roman law are discussed, and the evolution of its major characteristics are revealed. Subsequently, the author presents the regulations applicable to the contract of mandate under the first modern codifications of Romanian civil law in the Calimach and Caragea codes, the Commercial Code of Wallachia of 1840, the Romanian Civil code of 1864, the Commercial Code of 1887, and the Civil Code of 2009, currently in force. The author presents the major historic evolutions of the Romanian regulation pertinent to the nature of the contract, the parties, their remuneration, the effects of the contract inter partes and towards third persons as well as the changes in regulatory logic from the differentiation of commercial and civil mandate to the unification of the two institutions in the Civil Code of 2009.

scholarly journals Nienależne świadczenie w polskim Kodeksie zobowiązań z 1933 r. na tle porównawczym

2016 ◽  
Vol 9 (1) ◽  
pp. 67-95
Author(s):  
Jan Halberda ◽  
Keyword(s):  
Civil Code ◽  
Roman Law ◽  
Legal Provisions ◽  
Polish Code ◽  
Code Civil

Undue Payment in the Polish Code of Obligations of 1933 as Compared with Other Regulations of That Time The present paper discusses the concept of undue payment as found in the Polish Code of Obligations of 1933. The research is comparative in nature since it also explores the institution in question in other contemporary codes (Code Civil, ABGB, BGB and Obligationrecht), Roman law, and the Polish Civil Code of 1964 (1). The discussion is concerned with the framework of legal provisions on undue payment in the aforementioned sources (2). Furthermore, while applying a framework of the Roman condictiones the paper analyses the grounds of the action (3). It presents circumstances which allowed a payor to seek recovery of his payment (4–6) and those which precluded the claim (7). Then the paper gives an illustration of the scope of a payee’s liability (8). In his fi nal remarks, the author attempts to assess undue payment as regulated in the Code of Obligations (9).

scholarly journals RUSSIAN LAW OF OBLIGATIONS REFORMED: THE CONSEQUENCES FOR THE INSTITUTE OF DAMAGES (LOSSES)

2021 ◽  
pp. 689-698
Author(s):  
Y. E. Monastyrsky ◽  
Keyword(s):  
Russian Federation ◽  
System Analysis ◽  
Civil Law ◽  
Legal Regulation ◽  
Legal Aspects ◽  
Civil Code ◽  
Legal Provisions ◽  
The Russian Federation ◽  
Russian Law ◽  
Practice Methods

Introduction: of all the instruments of protection of subjective property rights, the fundamental role belongs to the institute of indemnification, whose regulatory framework needs to be clarified. The purpose of this paper is comparative description of the important legal aspects of the main type of property liability. In accordance with the purpose, the following objectives were set: to determine the extent to which legal provisions of general regulations on obligations laid down in the Civil Code of the Russian Federation should or can be applied to claims for damages; to formulate the proposals for improving the indemnification court practice. Methods: the methodological framework of the study consists of specific scholarly (special legal, comparative legal) and general scholarly (problem-theory, teleological, and system) methods of analysis. The main trends in the development of the institute of liability and the debatable aspects reflected in the Russian and foreign documents were studied with the use of the problem-theory and system analysis methods. Results: being a summary overview of the available knowledge and comparative regulatory material, this paper allowed us to articulate the ideas aimed at improving the fundamental principles of legal regulation of relations in the sphere of protection of subjective rights, in particular indemnification. Discussion: indemnification is a developing major institute of civil law, invariably attracting the attention of scholars around the world. Lately it has taken on special significance and some of its aspects have become a focus of a separate field of scholarly discussion. Many Russian scholars have written about indemnification in a comparative aspect: О. N. Sadikov, V. V. Baibak and others [2, 15]; this paper focuses on the reform of Russian law of obligations and the new provisions of the Civil Code of the Russian Federation of March 8, 2015 and reveals the consequences of the reform for the institute of damages, discussing this topic in detail as a separate standalone issue. Conclusion: we hope that this paper will contribute to further discussion in the civil law doctrine of the ideas and conclusions presented.

Trusts and the Chinese Civil Code: toward a new era of codification

2020 ◽  
Author(s):  
Jian Qu
Keyword(s):  
Civil Law ◽  
Comparative Law ◽  
Civil Code ◽  
New Era ◽  
Considerable Controversy

Abstract Starting from 28 May 2020, China, which has long been considered a civil law jurisdiction, finally has its own Civil Code. However, among 1260 articles of the Code, trust is mentioned only once. From a perspective of comparative law, the trust’s appearance in the civil code has always been informative for observing its transplantation process. Thus, by investigating the five rounds of civil law codification in China over decades, as well as the considerable controversy regarding trusts and codification, this article attempts to discuss the reasons, implications, and influences of the legislative result of trusts in the Code.

scholarly journals The regulation of private conservation legal tools in Catalonia: an inspiring precedent for the Roman law jurisdictions

2019 ◽  
Vol 10 (1) ◽  
Author(s):  
Hernan Collado Urieta
Keyword(s):  
Nature Conservation ◽  
Civil Law ◽  
Civil Code ◽  
Roman Law ◽  
Private Law ◽  
Great Opportunity ◽  
Previous Decade ◽  
Unique Experience ◽  
Land Stewardship

In the first decade of the XXI century, Catalonia has successfully received Land Stewardship as a strategy for nature conservation. As a result, many efforts have been taken to regulate Land Stewardship agreements in the Catalan civil law given the great opportunity of the Catalan private law codification that has taken place in Catalonia during the present and previous decade. For this purposes, all features of these agreements, such as duration, effects and nature have been thoroughly studied giving place to specific provisions in the Civil Code of Catalonia. This unique experience is studied in this article, extracting the key elements, learning and suggestions leading to some guidelines for a European common roadmap to the regulation of land Stewardship agreements.

scholarly journals Legal Consequences of the Prohibition on Widows’ Remarriage in Roman Law

2018 ◽  
Vol 18 (3) ◽  
pp. 151-177
Author(s):  
Piotr Niczyporuk ◽  
Piotr Kołodko
Keyword(s):  
Civil Law ◽  
Archaic Period ◽  
Roman Law ◽  
Classical Period ◽  
Legal Provisions ◽  
Religious Law ◽  
The Law ◽  
The Right ◽  
Legal Consequences

In the archaic period violations of the prohibition relating to mourning was regarded as a nefas and hence subject to penalisation under religious law. A widow guilty of an infringement was required to make an expiatory sacrifce known as a piaculum, viz. a bovis feta. This religious and customary practice underwent a series of transformations and eventually became a law (ius). In the pre-classical period the prohibition on the remarriage of widows in the period of mourning was perceived primarily as subject to penalties laid down by civil law. This was due to the question of the paternity of any offspring such a widow might bear in the tempus lugendi. The edictum perpetuum names the persons who were liable to infamy if they committed a breach of the prohibition on the remarriage of a widow within the period of mourning for her deceased husband. Such persons could neither engage in postulare pro aliis nor act as a procurator or cognitor. One of the consequences of a sentence of praetorian infamy was the convicted person’s forfeiture of the right to appoint his or her plenipotentiaries for legal proceedings.The classical period brought fundamental changes in the law on remarriage. Nonetheless, even though Augustus encouraged citizens to remarry, yet his legal provisions left widows a certain period of time following the loss of their husband in which they could refrain from remarrying. The reason behind this legal arrangement was not so much mourning as such; it was rather a question of Augustus wanting to show his respect for univirae (women who had been married only once). Augustus kept in force the provisions that gave a bad reputation to people who violated the prohibition of widows’ remarriage. The significance and effectiveness of these regulations made them a subject for jurists’ commentary, on account of the need to avoid situations where the paternity of children born to widows was uncertain. The prohibition on the remarriage of widows also shows that the creators of these regulations wanted marriage to be contracted primarily for the purpose of procreation, which would ensure the continuation of Roman families, especially as regards the perpetuation of their sacra, nomina, and pecunia.

scholarly journals The Abolition of the Concept of “Causa” in French Civil Law

2021 ◽  
Vol 26 (5) ◽  
pp. 91-102
Author(s):  
Irina Cvetkova
Keyword(s):  
Law Enforcement ◽  
Legal System ◽  
General Principle ◽  
Civil Law ◽  
Roman Law ◽  
Individual Interest ◽  
French Law ◽  
Law System ◽  
Binding Force ◽  
Material Interest

Abstract Causa is a subjective motive that determines the content of the obligation or material interest, which encourages the party to the trade to enter into an obligation taking on the associated burdens. In the countries of continental (mainland) Europe that belong to the Romano-Germanic law system, such as Germany, France, and Italy, the goal (objective) of the parties to the trade, causa, is legally significant. In the theory of the Civil law of the Romano-Germanic system, there is a general principle – any obligation arises for some purpose, which is called the basis of obligation. Causa is an individual interest that meets the requirements of the legal system. France was one of the last European countries that did not recognise the contingency theory as a basis for regulating the binding force of a contract. In practice, the courts have faced criticism of the concept of causation from both doctrine and law enforcement practice. In 2016, there was a significant reform of the French law of obligations. Legal science, undeservedly, did not attach due importance to one of the most noticeable innovations within the framework of the mentioned reform – the abolition of the concept of “causa” (reason, basis) of the contract, which until recently was one of the most original features of the French law and originated from Roman law, which was fixed in the Napoleonic Code. In this article, the theoretical provisions for the abolition of the concept of causa in French civil law, within the framework of the reform of the Civil Code, were investigated, and the corresponding conclusions were drawn.

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