The Common Law Foundations of the Israeli Draft Civil Code – A Critical Review of a Paradigm-Shifting Endeavor

Resumen El Código Civil de Hidalgo como la mayoría de los Códigos Civiles estatales se basa en el Código Civil de 1928 que tenía aplicación federal y aplicación del fuero común en el Distrito Federal, lo que al trasladarse a la materia local crea confusiones como la indebida regulación de materias federales en el ámbito local, además de lo anterior existe una evidente incongruencia de dicho ordenamiento con la figura de la Fe Pública de la que están investidos los Notarios ya que exige la comparecencia de testigos al otorgamiento de testamentos, todo esto se traduce en la necesidad de una reforma en su capítulo relativo a las sucesiones. Palabras clave: Código civil, sucesiones, necesidad de reforma, fe pública, testamento. Abstract The Civil Code of Hidalgo as the majority of The State Civil codes is based on the Civil Code of 1928 which had federal implementation and application of the common law in the Federal District, creating confusion for the undue regulation of federal matters at the local level, in addition to the above there is a clear inconsistency of said Ordinance with the figure of the legal authority that notaries are vested with since it requires the attendance of witnesses to the granting of wills, this translates into the need for a reform in its chapter on successions. Key words: Civil code, inheritance, legal authority, will, last will.

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Garanțiile negative

Studia Universitatis Babeş-Bolyai Iurisprudentia ◽

10.24193/subbiur.65(2020).4.28 ◽

2021 ◽

Vol 65 (4) ◽

pp. 955-976

Author(s):

Adrian Tamba ◽

Keyword(s):

Common Law ◽

Civil Law ◽

Civil Code ◽

The Common

"My work, called „Negative Pledges”, aims at some interesting legal beings. Mainly, they are used by banks. Yet, negative pledges may very well be placed in the hands of entities that are not banks; this is pointed out by, e.g., First Wyoming Bank, Casper v. Mudge. Negative pledges are encountered both in the Civil Law and the Common Law traditions. Of course, it is my view that the Romanian Civil Code embraces the so-called negative pledges, though it does not use such an expression. At the end of this paper, the abandonment of orthodoxy is highlighted: no explicit conclusions can be noticed."

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DISADVANTAGES OF THE RUSSIAN NOVELS ON COMMORIENTS (ARTICLES 1114, 1116 OF THE CIVIL CODE OF THE RUSSIAN FEDERATION) IN THE COMPARATIVE LEGAL ASPECT

Нотариус ◽

10.18572/1813-1204-2020-8-42-48 ◽

2020 ◽

Vol 8 ◽

pp. 42-48

Author(s):

Vyacheslav B. Panichkin ◽

◽

Elena V. Panichkina ◽

Keyword(s):

Russian Federation ◽

Common Law ◽

Legal Aspect ◽

Civil Code ◽

Critical View ◽

Law System ◽

The Russian Federation ◽

The Common ◽

Russian Law ◽

The Moment

The article contains a critical view on the new laws on the commorientes (heirs in simultaneous death and death in quick succession) of the Civil Code of Russia (Art. 1114, 1116), which replaced the legal category “day of death” by the category “the moment of death”. It must be noted the critics made from the standpoint of a supporter of such changes of law. While analyzing the new laws by method of law comparing with the foreign laws concerning the same tasks in the common law system, the author finds eight significant insufficient of present Russian law that need to be corrected.

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La nueva perspectiva de la tutela del error en el moderno derecho de los contratos

Revista de Derecho de la UNED (RDUNED) ◽

10.5944/rduned.14.2014.13310 ◽

2014 ◽

pp. 863

Author(s):

Rocío Herrera Blanco

Keyword(s):

Comparative Study ◽

Common Law ◽

Civil Law ◽

Contract Law ◽

Civil Code ◽

European Contract ◽

Legal Effect ◽

The Common ◽

The Impact ◽

European Contract Law

Premio de artículos jurídicos «GARCÍA GOYENA» (Curso 2013-2014). Primer accésit Todos los ordenamientos jurídicos europeos prevén normas relativas a la ineficacia de los contratos por vicios del consentimiento, sin embargo, existen entre ellos diferencias bastante significativas, especialmente cuando se comparan el Common Law y los derechos continentales. El presente estudio comparado parte del tratamiento de esta cuestión en la regulación española y se centra en las propuestas que el moderno Derecho de la contratación proporciona en materia de vicios del consentimiento, con particular atención a la figura del error, así como en el Derecho anglosajón, por su eventual influencia en la regulación de estos instrumentos. De manera muy amplia, podríamos decir que el Common Law enfatiza la seguridad de las transacciones, mientras que los sistemas del Civil Law, quizás todavía marcados por las huellas de las llamadas teorías voluntaristas, son más transigentes en permitir la ineficacia de los contratos por defectos del consentimiento. Partiendo de esta premisa, intentaremos evidenciar que las soluciones brindadas por el Derecho anglosajón y los diferentes instrumentos de unificación para la determinación de los efectos jurídicos del error son muy similares. Asimismo, en este trabajo se defiende la tesis de la obsolescencia del Código Civil español en esta materia, y la consecuente necesidad de adaptación del mismo a la actual realidad social, a través de un propósito de homogeneización del Derecho contractual europeo. Para ello, igualmente estudiaremos la Propuesta de modernización del Código civil en materia de obligaciones y contratos, cuya regulación del error, en particular, merece ser objeto de estudio y confrontación de ideas.The legal systems of all european countries provide rules regarding the inefficacy of contracts due to defects of consent, however, there are very significant differences between them, with the deepest differences when Common law and continental systems are contrasted. The present comparative study focuses on the proposals that the modern contract law (PECL, Unidroit Principles, DCFR, CESL) provides with regard to defects of consent and, particularly, to the doctrine of mistake, as well as the Common law for its eventual influence on the regulation of these projects. Very generally, we could say that Common Law emphasizes the security of transactions, while Civil law systems, perhaps still under the impact of the eroded voluntarist theories, are more generous in allowing the inefficacy of contracts due to defects consent. Given these premises, we will try to evidence that the solutions provided by the Common law and the different unifying instruments in order to determinate the legal effect of the defects of consent are very similar. Furthermore, this survey defends the thesis of obsolescence of the spanish Civil Code respecting defects of consent, and the ensuing need for adapting it to the current social reality through a purpose of homogenization of european contract law. Due to this fact, we will also study the Proposal for the modernization of the Civil Code on obligations and contracts, whose regulation of defects of consent, particularly, diserves to be analyzed.

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Contract Formation and Third Party Beneficiaries in Korea

10.1093/oso/9780198808114.003.0014 ◽

2018 ◽

Author(s):

Kwon Youngjoon

Keyword(s):

Common Law ◽

German Law ◽

General Rule ◽

Civil Code ◽

Third Party ◽

Contract Formation ◽

The Common ◽

Formal Requirements

This chapter 14 discusses the rules on contract formation and third party beneficiaries in Korea. These can be found in the Korean Civil Code of 1960 that is closely modelled on the Japanese Civil Code, therefore many of its solutions can be ultimately traced back to German law. For a binding contract to be made, Korean law only requires an agreement which is normally constituted by an offer and a matching acceptance; there is no requirement of consideration, and as a general rule there is freedom of form—only limited statutory exceptions impose formal requirements for specific types of contract. Offers must be sufficient and sufficiently definite, and they must be made with the intention to be legally bound. They become effective once they reach the offeree. After that they are, in principle, irrevocable—a position only slightly softened by a 2014 Ministry of Justice draft amendment. The draft also suggests abolishing the common law-style ‘mailbox rule’ that the Code inherited from the Japanese Civil Code.

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Is Custom a Source of Law in Israel?

Israel Law Review ◽

10.1017/s0021223700004647 ◽

1974 ◽

Vol 9 (2) ◽

pp. 221-233

Author(s):

Ya'akov Meron

Keyword(s):

Common Law ◽

Civil Code ◽

The State ◽

First Year ◽

British Mandate ◽

Statutory Authority ◽

The Common ◽

English Law ◽

First Time

This question, evoked for the first time over thirty years ago and apparently resolved some twenty years ago, is being presently hotly debated as a result of the Bill Repealing Ottoman Laws, which is intended to abrogate, inter alia, the remains of the Mejelle, the Ottoman Civil “Code”, still in force in Israel. Throughout the Courts' examination of the question there was never any doubt that the answer is to be found in the Mejelle. For this reason it is now feared that, with the latter's disappearance, no statutory authority will be left in Israel law recognizing custom as a source of law. Admittedly, in the absence of any provision in the Ottoman law still prevailing in this country, article 46 of the Palestine Order-in-Council, 1922 might once again allow recourse to English Common law. Moreover, under the British Mandate in Palestine, reference was made to the Common law on this subject. Since the establishment of the State, however, less significance is attached to this reference. Recently it has even been stressed that there is no point in trying to adopt the English notion of custom, whose requirements are so rigid (notably as to antiquity) that the existence of a custom is not recognized unless it dates from 1189, the first year of the reign of Richard I. Indeed, this lack of flexibility renders recourse to English law, on this point, totally unworkable and merely underlines the necessity of finding a solution within the local—in this case—Ottoman law.

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PENGUATAN KEDUDUKAN PRANATA HAK SERVITUT DAN HUKUM BERTETANGGA DALAM YURISPRUDENSI

Jurnal Surya Kencana Dua : Dinamika Masalah Hukum dan Keadilan ◽

10.32493/skd.v3i1.y2016.125 ◽

2016 ◽

Vol 3 (1) ◽

Author(s):

Rizal Sofyan Gueci

Keyword(s):

Common Law ◽

Civil Code ◽

Customary Law ◽

Land Consolidation ◽

The World ◽

The Common ◽

The Law ◽

Agrarian Law ◽

Almost All ◽

The Village

The Constitution has laid the foundation of checks and balances amongst the main state organs namely the executive, the legislative and the judicial power. This order as a guideline in the state and society, till the Village level and within groups in the village such as the Neighborhood and citizen groups. Servitut Rights and neighbors law answer challenges of development of human settlements sustainably and resilient. Servitut rights as a property rights regulated in Neighbor law book II Indonsian Civil Code of 1848 or in adat law term called easement (hak melalui tanah orang lain) which known by adat community entity is not older than the easement is recognized by customary law in almost adat law community entity throughout the territory of Indonesia. The servitut right is the easement of yard (erfdiensbaarheid) or burden to rest on the grounds that one for the benefit of the another yard such that the owner of the yard were crushed should let the owner of the yard oppressor to pass through, drain the water (clear) on it, take view out through the window etc. This devotion land does not end with the death or replacement of yard owners concerned (Article 674 of the Indon. Civil Code). There are still remnants of feudalism and colonialism in tribal society, reflecting the concrete cases in the community there is disturbance against the rights of servitut with vigilante, then the rule of law invoked repeatedly and generating permanent jurisprudence. Kedudukannya hak servitut tidak tergoyahkan dengan adanya UUPA 1960 yang mengatakan semua hak atas tanah mempunyai fungsi sosial dan hukum adat dijadikan dasar dari hukum agraria nasional. The position of Servitut rights is impregnable with the Basic Agrarian Law 1960 (BAL) that says all rights on land has social functions and customary law form the basis of the national agrarian law. In Article I point 6 of BAL No. 5 year 1960 proves Indonesia is in a row of civilized countries that accommodates this legal institution. Jurisprudence confirm customary law as a living law as well as the Civil Code 1848 according to Supreme Court Circuler of 1963 treat as unwritten customary law in order to prevent the legal vacuum and reaching the objectives of the law. Jurisprudence has been recognized as one of the legitimate source of law in the Republic of Indonesia. Indonesian Judges have shown its class in the world of justice, who did not want to look different in servitut rights issues which is an universal phenomenon. Almost all civilized countries of the UN members have recognized the existence of this institute servitut rights, both in the Code book as well as in its jurisprudence. Servitut rights institution is rooted in the common law ius commune since Roman Empire, which can not be ignored, despite overall individualistic Roman law, but in particular there are elements of social function. Servitut (lat.) is accommodated into the book of the law in almost all countries in the world, through colonialize, import law, voluntary transplants in the law of one self. Boedi Harsono, as nationalist and socialist thinker and R. Supomo as father of Indonesian customary law and by youth in 1928 is regarded as a national law with the smooth call it "right through another person's land" which is also known by the common law. The permanent Jurisprudence remains threngthen unwritten norm servitut rights or land rights through anothers person’s land showed the class of Indonesian Judges comparabele with justices of developed nations in assessing this servitut rights. Implementation build without displacing has been regulated in Law No. 4 year 1992 art. 22-32 and Act No. 1 year 2011 on Housing and Settlement Region art. 106-113 law institute land consolidation, which is compatible with the institute servitut right and reconfirmed the servitut. Implementation, if one developer alone could make the plot and make the land ready to build cosolidate up to 6,000 ha orderly development of land, so a province or a local government / city are challenged to be able to hold up to 6,000 ha of land consolidation to reduce the backlog and combating land speculators. For the assessment of achievement of the Governor / Regional Office of BPN how long had a special local street, public street or road of servitut rights through land consolidation and how many special streets that have been submitted become public streets.Keywords: Reinforcement, top notch institutions, rights servituut

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Formulasi Pengaturan Tahapan Pra Kontrak dalam Proses Pembentukan Kontrak di Indonesia

Jurnal Yustika: Media Hukum dan Keadilan ◽

10.24123/yustika.v22i02.2406 ◽

2020 ◽

Vol 22 (02) ◽

pp. 84-93

Author(s):

Bebeto Ardyo

Keyword(s):

Common Law ◽

Civil Law ◽

Civil Code ◽

Legal Certainty ◽

Law System ◽

Human Needs ◽

Contract Formation ◽

The Common ◽

The Times ◽

Civil Law System

The increasement of human needs in society goes hand in hand with the development of technology. To meet these needs, there must be interaction between people which sometimes has the potential to cause disputes. That’s why a contract is needed. The existence of a contract guarantees legal certainty regarding protection of the rights of the parties and also the obligations that they must fulfill. There are several stages of contract formation which consist of pre-contract and agreement between the parties. According to the system in the Book III of Indonesia’s Code of Civil Law, consensus is the base for the formation of contract that means once the agreement has reached between the parties then a contract is formed. Indonesia’s Code of Civil Law doesn’t yet regulate pre-contract stages of contract formation, even though these stages are equally important. The regulation of pre-contract stages are usually set in the common law system, but along with the times, the regulation of pre-contract stages should also be regulated in the civil law system. As a comparison, Het Nieuw Burgerlijke Wetboek (New Civil Code of Netherlands) has already regulated that pre-contract stages, although the Netherlands is a country that implements civil law system. The pre-contract stages are very important to be regulated in Indonesia because there are many potential pre-contractual issues. This paper aims to formulate the outline of what needs to be regulated in the pre-contract regulations. Keywords : Interaction, Contract, Formation, Civil Code

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Legal Reasoning and Legal Integration

Maastricht Journal of European and Comparative Law ◽

10.1177/1023263x0301000104 ◽

2003 ◽

Vol 10 (1) ◽

pp. 67-97 ◽

Cited By ~ 1

Author(s):

Jaap Hage

Keyword(s):

Common Law ◽

Civil Law ◽

Legal Reasoning ◽

Civil Code ◽

Case Based Reasoning ◽

Rule Based ◽

Rule Application ◽

The Common ◽

European Civil Code ◽

Case Based

According to Legrand, harmonization of European private law by means of a European Civil Code would not work, because of the different legal cultures (mentalités) within which such a code would have to operate. In the civil law tradition, legal reasoning on the basis of such a code would be deductive in the sense of the application of rules that are posited prior to the cases to which they should be applied. In the common law tradition, the starting point of legal reasoning is in the cases themselves. As a consequence, common law reasoning would abstract less from the peculiarities of individual cases. The main point of this paper is that Legrand's picture of civil law reasoning is based on the subsumption model of rule application, which does not allow adaptation of the law to the needs of concrete cases other than through the limited possibilities of interpretation. It is argued that this picture is wrong. As an alternative, the reason-based model of rule application is proposed, which allows legal decision makers much more leeway to tailor the law to the needs of concrete cases. In a comparison with case-based reasoning it is argued that rule-based reasoning, according to the reason-based model, gives the decision maker the same leeway. The final conclusion is that possible differences in legal culture between the civil law and the common law tradition are not rooted in the distinction between rule-based reasoning and case-based reasoning, and are therefore merely contingent. There is no reason why the introduction of a European Civil Code could not overcome the differences between the two traditions. Whether this would be desirable is a different question.

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Regards sur le nouveau droit de la famille au Canada anglais et au Québec

Les Cahiers de droit ◽

10.7202/042465ar ◽

2005 ◽

Vol 22 (3-4) ◽

pp. 723-784

Author(s):

Denyse Guay-Archambault

Keyword(s):

Common Law ◽

Civil Code ◽

English Canada ◽

Property Law ◽

Private Law ◽

Mother Country ◽

Statutory Law ◽

The Common ◽

The Law ◽

Code Civil

The English origin of the law in the Common law jurisdictions in Canada makes it mandatory to study common law and English statutory law. It is through those that we can follow the development of a family property law in English Canada. Starting from an individualistic view of the spouses' property, we shall witness the emergence of the idea of « family assets » which has been « enshrined » in recent legislation. The law of Québec has evolved differently. Though of Trench origin, it has not kept as near its mother-country as its neighbour's has done with English law. Turthermore, due to its civilian character, its principles of private law are to be found in the Civil Code. This favours a different approach. That is why we will generally confine our study to those rules which are to be found in the Code civil du Bas-Canada and to the newly adopted Code civil du Québec. We will see what has become of the original community of property and compare the present law of Québec with recent legislation in English Canada.

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