scholarly journals LEGAT W PRAWIE RZYMSKIM

2017 ◽  
Vol 3 (1) ◽  
pp. 69
Author(s):  
Elżbieta Loska
Keyword(s):  
Economic Benefit ◽  
Civil Law ◽  
General Concept ◽  
The Other ◽  
Roman Law ◽  
Legal Nature ◽  
Legal Effect ◽  
Ancient Times ◽  
The Times ◽  
Concept Of Law

A LEGACY IN THE ROMAN LAWSummary A notion of a legacy did not exist in the archaic Roman law as a homogenous concept of law and it developed as late as in the pre-classical Roman law. Even then, however, only particular types of legacies, rather than their general concept, were defined. Nevertheless, one may say that a legacy was a civil law instrument by means of which a testator left a certain economic benefit to a particular person, not making him\her an inheritor.At the beginning there were four basic types of legacy in the Roman law: legatum per vindicationem, legatum per praeceptionem, legatum per damnationem and legatum sinendi modo. The first two types had an effect of a disposition while the two latter ones of an obligation only. In sources there also exist two other types: legatum optionis and legatum partitionis. This last mentioned is similar to a later established concept of a fideicommissum, an informal legacy, which became actionable in the times of the Emperor August.Already in the ancient times one may observe a decrease in the significance of these types of legacy, the effects of which directly related to the ownership of objects (legatum per vindicationem and legatum per praeceptioneni).They were connected with the notion o f an ownership according to ius civile and formal means of transferring the ownership. They lost its significance when - beside the oldest civil law - praetorian law and emperors’ constitutions appeared and when the ownership was standardised. After the issuance of senatusconsultum Neronianum in the 1st century AD it became possible to retain the legal effectiveness of the legacies which until then were considered invalid due to a failure to preserve an appropriate form; an ex /^ con version took place. It resulted most probably in converting invalid legacies into legatum per damnationem.In the subsequent centuries, emperors’ constitutions led to a harmonisation o f the concept of legacy (while the division between the legacy having an effect of a disposition and an obligation was still preserved), and later on to equalisation in the legal effect of formal and informal legacies. The most important regulations were: the constitution of the Emperor Constantinus dated 339 AD, which abolished the requirement of solemnitas verbum and two constitutions of the Emperor Iustinianus - the first - dated 529 AD - introduced an identical legal nature of all legacies, the other - dated 531 AD - completely equalised legacies with fideicommissa. 

Condicio supervacua and related conditions 
in Roman law

2015 ◽  
Vol 83 (1-2) ◽  
pp. 77-106
Author(s):  
Veronika Kleňová ◽  
Zdenko Takáč
Keyword(s):  
The Other ◽  
Legal Norm ◽  
Roman Law ◽  
Legal Situation ◽  
Legal Effect ◽  
Proper Condition ◽  
Legal Opinion

The article deals with the conditions that did not have the legal effect of a ‘proper condition’. The authors distinguish these conditions from a ‘proper condition’ pointing out that the distinguishing feature is an ‘uncertainty’ carried by the condition. Firstly, the authors focus their attention on the condicio supervacua – the term is explicitly used only by Pomponius in the case of legacies. It did not have the effect of a ‘proper condition’, because the uncertainty expressed by the condition already resulted from the legal norm itself. It was an explicitly expressed condicio iuris pursuant to the modern definitions of the term. The authors analyze and compare various cases that seemingly deal with condiciones iuris too. The analysis makes it clear that they were regarded as supervacuae, unless the testator changed the legal situation in some way through their expression. He had to insert some new uncertainty that did not result from the legal norm itself. The other kind of condition that the article deals with is condicio institutionis/substitutionis expressly re-applied to a legatum. This condition is different from condicio supervacua, because in this case the new uncertainty was added by the testator himself. Despite some doubts, the legal opinion which prevailed in Roman law was that such a condition did not have the effect of a ‘proper condition’ in relation to a legacy. The reason is that even if the testator re-applied the condition of institution also to a legacy, he extended only the uncertainty of aditio hereditatis and did not insert any new uncertainty into the legacy itself.


The Influence of Roman Law

2011 ◽  
Author(s):  
Donald R. Kelley
Keyword(s):  
Nineteenth Century ◽  
Twelfth Century ◽  
Civil Law ◽  
Human Condition ◽  
The Other ◽  
Roman Law ◽  
Christian Doctrine ◽  
The Law ◽  
Civil Science

Centuries of Roman jurisprudence were assembled in the great Byzantine collection, the Digest, by Tribonian and the other editors. Roman law became more formal when during the Renaissance of the twelfth century it came to be taught in the first universities, starting with Bologna and the teaching of Irnerius. The main channels of expansion were through the Glossators and post-Glossators, who commented on the main texts and on later legislation by the Holy Roman Emperors, which included “feudal law,” but also by notaries and other proto-lawyers. Christian doctrine also became part of the “Roman” tradition, and canon and civil law were taught together in the universities as “civil science.” According to the ancient Roman jurist Gaius, “all the law which we use pertains either to persons or to things or to actions,” three categories that exhaust the external human condition—personality, reality, and action. In the nineteenth century, the study of Roman law lost its ideological power and became part of philology and history, at least so concludes James Whitman.

scholarly journals KONTRAKT SPÓŁKI JAKO PODSTAWA ODPOWIEDZIALNOŚCI IN SOLIDUM W PRAWIE RZYMSKIM

2017 ◽  
Vol 3 (1) ◽  
pp. 43
Author(s):  
Zuzanna Służewska
Keyword(s):  
Civil Law ◽  
Third Parties ◽  
The Other ◽  
Third Party ◽  
Roman Law ◽  
Joint And Several Liability ◽  
Internal Relation ◽  
Common Opinion ◽  
Formal Procedure ◽  
The Common

THE CONTRACT OF PARTNERSHIP AS A BASE OF IN SOLIDUM LIABILITY IN ROMAN LAWSummary In the modern civil law joint and several liability of partners in a partnership is a rule rather than an exception. According to the common opinion this concept did not originate in the Roman law but was first invented in the medieval times by glossators and commentators. The Roman partnership created only a private relation between partners (who, due to a conclusion of that contract were reciprocally obliged to act together in accordance with a good faith in order to conduct common business and to divide profits and bear losses in proportion to their respective shares) and its conclusion did not affect their liability against third parties. The partners had no right to bind themselves contractually to any third parties, unless they all acted jointly (in this case, however, their joint representation was derived from their expressed declarations and not the existence of a contract o f partnership). Thus, any commitment made by an individual partner, even if made within the scope of a partnership having obtained other partners’ consent, was treated as a personal debt of this partner and the remaining partners were not liable against his contractor. Then, of course, the partner who made a commitment (acting within the partnership’s business) could claim a part of what he had paid to a third party from other partners in proportion to their respective shares in the common enterprise.Such a solution was necessary because of the purely consensual character o f the Roman partnership and the lack of any formal procedure of its conclusion and dissolution. The existence of that contract could not affect the model of the external liability of partners, because it would be too risky for third parties, which had no possibility to make sure if a contract of partnership between some persons had been actually concluded or not. Thus, the role of a contract of partnership in the Roman law was only limited to determine a mutual liability o f partners, to specify their respective rights and obligations and to define the scope of their liability against other partners.There are only a few written sources concerning so called specific kinds of partnership characterized by untypical joint and several responsibility of partners. Moreover these texts are not very clear and are difficult to interpret, so the issue of specific kinds of a partnership is a matter of doubts among Romanists. Some authors even believe that the specific types of partnership did not exist in the Roman law at all.It should be firstly observed that the texts regarding a contract of partnership itself (the texts included in the title pro socio of Justinian’ Digest) did not raise the question of the external liability of partners because they were devoted to internal settlement o f accounts within sociu Thus, taking into account only these texts one cannot ascertain that a conclusion of a contract of partnership could not affect in any way the model of the partners’ liability against third parties.Secondly, the other texts concerning the regulation of conducting an economic activity in the Roman law (actio institoria, actio exercitoria and actio de peculio) present some regularity in an introduction of joint and several liability of debtors.On the one hand that model of the liability was introduced in situations in which protecting safety of trade required that the creditor be able to claim a whole amount o f the debt from one person only.On the other hand this model of liability could be introduced only in these cases in which some internal relation existed between several debtors. On the grounds of such relations the debtor who satisfied in full the creditor’s claim could sue other debtors in order to recover their respective parts in the debt. In the Roman law that internal relation that guaranteed the possibility of a recourse could be either a joint-ownership or a partnership.Having considered that, one may say that the texts concerning specific kinds o f partnership do not prove existence of any special type of societas. These sources regard only the situations when a joint and several liability between several debtors was introduced because it was justified by the circumstances: that is the necessity to protect the safety of trade on one hand and the existence of the contract of partnership that guaranteed a possibility to realize the recourse, on the other.In conclusion one may say that although a closing of a contract of partnership did not create a joint and several liability of partners, in some cases its existence was decisive for introducing this model of liability since it guaranteed to every party a possibility to act against the others to obtain the recourse. Thus, Roman jurisprudence made an important step towards the future introduction o f joint and several liability of partners as a rule of a civil law.

scholarly journals The legal nature of fiduciary duty in civil law of Ukraine

2021 ◽  
Author(s):  
H. O. Urazova
Keyword(s):  
Civil Law ◽  
Legal Protection ◽  
Fiduciary Duty ◽  
Roman Law ◽  
Joint Activities ◽  
Legal Nature ◽  
The Subject ◽  
Main Thing ◽  
The Right ◽  
Proper Behavior

The variety of fiduciary legal relations in the civil law of Ukraine requires the study of their individual elements, in particular, the fiduciary duty. Therefore the purpose of this article is to clarify the legal nature of the fiduciary duty, in order to avoid legal uncertainty, which leads to difficulties in law enforcement and, as a result, ineffective legal protection of violated rights of a person due to non-fulfillment or improper fulfillment of such an obligation in relation to her.Analyzed such concepts as "fides", "fiducia", duty in civil law. It has been established that the first, respectively, in Roman law had several meanings, but the main thing is the trust of the participants in civil relations to each other. The second have to understood as the proper behavior of the subject of civil relations, the content and model of which are determined by the requirements of the rule of law, the will or persons authorized by the transaction or other legal facts.It was found that the fiduciary duty is the proper behavior of the subject of a trust relationship, due to the conclusion of certain agreements (for example, commissions, property management, joint activities, the provision of lawyer services, etc.), or the occurrence of legal facts (election of a body or person of a legal entity, who (who) has the right to act on her behalf, the establishment of guardianship or trusteeship, the death of an individual, etc.).

scholarly journals Theoretical Research on the Principle of Equality in Civil Law from the Perspective of Civil Society

2019 ◽  
Vol 15 (10) ◽  
pp. 141
Author(s):  
Ruyuan Guo
Keyword(s):  
Civil Society ◽  
Social Practice ◽  
Civil Law ◽  
The Other ◽  
Theoretical Research ◽  
Private Law ◽  
Negative Implication ◽  
The Times

The assertion of equality of rights and abilities in the equality principle of civil law is incompatible with social practice. This kind of realistic contradiction forces the study of the essence of the equality principle of civil law to change a new path from “what is the principle of equality of civil law” to “what is not”. Based on this, the “essence” of the equality principle of civil law is to highlight the “principle” attribute of “equality” by excluding regularity assertion, and guarantee the qualification equality of social subjects in the field of private law by expanding rather than limiting the boundaries of interpretation space. The “essential” argument of the equality principle of civil law makes the interpretation of negative and positive implications logically possible. Civil law is based on the principle of equality. The negative implication of the equality principle derives the principle of freedom. The positive implication gives rise to the principle of honesty and credit and the principle of fairness and justice, which are the guarantees of the principle of freedom. Civil law establishes communication with the times through the dynamic and synchronic nature of the binary meaning of the equality principle，and equalizes the governance of civil law through the negative and positive implications of "one goes up and the other goes down".

scholarly journals Settlement and other results of the procedure of judicial conciliation

2020 ◽  
pp. 1-11
Author(s):  
Natal'ya Nikolaevna Makarenko
Keyword(s):  
Civil Law ◽  
Civil Procedure ◽  
The Other ◽  
Comparative Perspective ◽  
Procedural Law ◽  
Legal Nature ◽  
Legal Precedent ◽  
Judicial Procedure

This article is dedicated to the question of the essence of a settlement within the framework of judicial conciliation procedure. The issue is being explored from comparative perspective, where the essence of a settlement within the framework of judicial conciliation procedure is compared to the essence of a similar institution in terms of mediation procedure. The work examines legal precedent and doctrinal opinions of experts on the issues of legal essence of judicial conciliation as ones established by judicial and non-judicial procedure of conciliation. The author highlights the key aspect of the procedure of judicial conciliation in relation to reaching a settlement, including the rights and obligations of the parties to the process from one side, and the court on the other. The conclusion is made that the legal nature of settlement represents a mixture, comprised of elements of material (civil law), as well as procedural (civil procedure) law. A claim is made that within the framework of the judicial conciliation procedure, the legal nature of a settlement contains more procedural law elements than that of mediation procedure, which is explained by the broader authority of the court and correlating reduced authority of the parties than in terms of a mediation procedure.

scholarly journals THE SUPPLY CONTRACT: A SIMPLE SALE OF GOOD?

2020 ◽  
Vol 15 (3-4) ◽  
pp. 43-53
Author(s):  
Georgeta CRETU ◽  
◽  
Camelia SPASICI ◽  
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
The Other ◽  
New Production ◽  
Supply Contract ◽  
Legal Nature

This paper aims to address two objectives: in general, to briefly outline the particularities of the supply contract and, in particular, to distinguish its position among the special civil law contracts. The supply contract is a new production of the Civil Code (art. 1166-1771). In this respect it is important to differentiate the supply contract from the other two civil law contract, namely the sale contract and the subcontracting agreement. By defining the contract we aim at establishing its legal nature, particularly that of an independent (distinct) agreement. This paper is structured as follows: “Introduction”; “The Supply Contract. Definition, Object and Legal Characteristics”; “The Parties’ Obligations According to the Supply Contract”; “Modifications of the Legal Supply Relationships. Subcontracting.”; “Supplying: an Independent (distinct) Contract or a Different Form of Sale?” This legal undertaking ends with a lege ferenda and conclusions.

scholarly journals The Legal Nature of Smart Contracts

Law and World ◽  
2021 ◽  
Vol 7 (5) ◽  
pp. 165-175
Keyword(s):  
Civil Law ◽  
The Other ◽  
Fourth Generation ◽  
Smart Contracts ◽  
Standard Contract ◽  
Smart Contract ◽  
Legal Nature ◽  
The World ◽  
Pros And Cons ◽  
Current Reality

The article discusses about the smart contract, its concept and legal nature, as well as the place of smart contracts in the Technology Law, which means a discussion on the important issues covered by this topic. At the same time, smart contracts are com- pared to the usual standard contract, where their pros and cons are discussed. The importance and necessity of both types of contracts in relation to the current reality will also be discussed. At the same time, the article discusses about the revolutions – from where they begin and how long the world has passed before today's reality, why blockchain is considered as the fourth-generation revolution and how important it is to develop and implement it. The article also discusses about the types of contracts, which means how a standard contract can be divided, in the other words, we talk about consensual and real contracts. The definitions of each of them and their need related to the smart contracts are analyzed in the article. Therefore, we use the relevant chapters and articles of civil law to be able to explain what is meant and to what extent it is possible to follow the same norms in the case of the smart contract.

scholarly journals DWUGŁOS W SPRAWIE POJĘCIA ŚWIADCZENIA W POLSKIM PRAWIE CYWILNYM – CHARAKTER PRAWNY SPEŁNIENIA ŚWIADCZENIA

2016 ◽  
Vol 16 (2) ◽  
pp. 103
Author(s):  
Marek Antas ◽  
Jakub M. Łukasiewicz
Keyword(s):  
Civil Law ◽  
Historical Background ◽  
Roman Law ◽  
Legal Action ◽  
Legal Nature ◽  
Polish Law

A dialogue Concerning the Notion of Service in Polish Civil Law: the Legal Nature of Accomplishment of ServiceSummary This paper is the second part of an article constructed on the basis of a dialogue between J.M. Łukasiewicz and M. Antas. The authors attempt to answer the question whether a service is a factual action or a legal action. Next they present the problem of services against a historical background i.e. in Roman Law, in the German and Roman system, and in Polish law. Finally they discuss the question of the causality of legal actions.

THE CONCEPT AND LEGAL ESSENCE OF THE CONTRACT FOR THE PROVISION OF LEGAL SERVICES: THEORETICAL AND LEGAL, LEGISLATIVE AND LAW ENFORCEMENT ASPECTS

2018 ◽  
pp. 38-47
Author(s):  
Anna Nikolayevna Klimova
Keyword(s):  
Law Enforcement ◽  
Civil Law ◽  
The Other ◽  
Legal Services ◽  
Effective Mechanism ◽  
Legal Nature ◽  
Civil Science ◽  
Basic Approaches ◽  
The One ◽  
The Relationship

The relevance of the topic is due to the relevance of the contract on the provision of legal services in the modern civil turnover, on the one hand, and the lack of common approaches to understanding the legal essence of the said contract in the doctrine of civil law – on the other. The study deals with the problem of defining the concept of a contract for the provision of legal services. Analyzed number of definitions proposed by modern representatives of civil science. It is concluded that the legal nature of the contract for the provision of legal services is ambiguous. It considers the basic approaches to its understanding and qualifications as the agreement of chargeable rendering of services agency contract, mixed contract, etc. In a particular situation, the choice of contractual design, as a rule, is due to a set of services, actual and legal actions, dictated by the goal that the parties to the relationship seek to achieve. The versatile design of the agreement of paid rendering of services and the effective mechanism of protection of the rights of the applicant, as the weaknesses of the commitments were the main reasons are the most widespread of the agreement in practice. However, it is concluded that the restriction of contractual forms of legal services only by the specified design is unacceptable, since it can lead to a wrong understanding of the legal nature of the relations in question and difficulties in practice associated with the conclusion and execution of contracts.

Sign in / Sign up

Export Citation Format

Share Document