scholarly journals ZAKAZ WYROKOWANIA PONAD ŻĄDANIE STRONY (‘NE EAT IUDEX ULTRA PETITA PARTIUM’) – RZYMSKIE TRADYCJE I WSPÓŁCZESNE REGULACJE POLSKIEGO PROCESOWEGO PRAWA CYWILNEGO

2016 ◽  
Vol 12 (4) ◽  
pp. 41
Author(s):  
Joanna Misztal-Konecka
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Roman Law ◽  
Political Transformation ◽  
Original Formulation ◽  
Current Formulation ◽  
The Social ◽  
The Subject ◽  
Polish Code ◽  
Rule Out

‘NE EAT IUDEX ULTRA PETITA PARTIUM’: THE PROHIBITION ON JUDGEMENTS OVER AND ABOVE THE CLAIM A PARTY HAS LODGED. ROMAN TRADITIONS AND CONTEMPORARY REGULATIONS IN POLISH CIVIL LAW PROCEEDINGS Summary One of the testimonials to the vast influence of Roman law on contemporary civil law, including proceedings, are the Latin legal maxims which have been used for centuries not only by theorists of the law but also by its practitioners. Following the social and political transformation, one of the maxims very often resorted to in Poland is ne eat iudex ultra petita partium. Its importance is confirmed by the fact that it is among the 86 inscriptions decorating the columns in the building of the Polish Supreme Court. This legal maxim is an excerpt from the Roman jurist Iavolenus (D. 10,3,18), who used this expression to rule out the possibility of one of the beneficiaries in an inheritance case obtaining an easement on the testator’s estate for use on his own property which was not part of the estate devised. Clearly the original formulation applied to a different issue than the sense in which it is used nowadays: as a reference to the limitation on a judge’s powers to the subject of the proceedings he is hearing. In the light of the current formulation of Art. 321 of the Polish Code of Civil Procedure a court cannot or rule over and above the claim, or issue a verdict not relating to the claim. This prohibition means that the court cannot issue a verdict other than (aliud) or over and above (super) what the plaintiff or claimant petitioned for. Neither can it rule on any other grounds than those petitioned for by the plaintiff or claimant. The prohibition on judgements over and above the petition applies both to the object of the petition or claim (petitum) as well as to the grounds thereof (causa petendi).

scholarly journals Czy przebaczenie niweczy skutki uprzedniego wydziedziczenia?

2017 ◽  
Vol 21 ◽  
pp. 143-153
Author(s):  
Anna Moskal
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Dominant Position ◽  
Legal Nature ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Subject ◽  
Made In

Does forgiveness nullify the effects of previous disinheritance? The legal nature of forgiveness is the subject of passionate debates among the representatives of civil law doctrine. According to the dominant position in the literature, forgiveness is an act of affection or its manifested expression of forgiveness of the perpetrator of experienced injustice and related to this grudge. This institution has been applied three times in the Civil Code — once with the donation agreement, twice in regulations of inheritance law. Article 1010 § 1 provides that a testator cannot disinherit eligible for legal portion if he forgave him. The wording of the above article indicates that accomplishment of disinheritance in case if testator eligible for legal portion has previously forgiven. The legislator did not, however, determine the effects of forgiveness in relation to previous disinheritance. In the act of 1971, the Supreme Court accepted that such forgiveness would automatically nullify the effects of disinheritance, and could be made in any form. In recent years, lower courts have begun to question the Supreme Court's position, and judges increasingly refer to the critical statements of numerous doctrines. As it was rightly stated, admitting the possibility of invoking the forgiveness made after disinheritance poses a serious threat to the realization of the testator’s will, who, by forgiving, does not necessarily want to revoke the effects of his previous disinheritance. The postulate of de lege ferenda is, according to the author of the article, giving of freedom of judging the effects of forgiveness to the courts and each examination of the forgiving testator’s will on the possible abatement of the consequences of previous disinheritance.]]>

Das römische Recht vom Error

2019 ◽  
Author(s):  
Philipp Lotmar
Keyword(s):  
Civil Law ◽  
Labor Law ◽  
Scientific Work ◽  
Contract Law ◽  
Roman Law ◽  
Private Law ◽  
The Public ◽  
Left Behind ◽  
Material Basis ◽  
The Subject

For decades, Philipp Lotmar has repeatedly and insistently focussed on the subject of error. In a monumental work, Lotmar set out to examine the countless relevant Roman sources in every area of law inside as well as outside the Corpus Juris Civilis, thus providing the material basis for his criticism of Karl Friedrich von Savigny's leading doctrine of errors in contract law. However, Lotmar could not complete the work he considered the crowning achievement of his research in the field of Roman law, nor did he succeed in publishing the first, almost finished volume. The entire first volume and the introduction to the second volume, i.e. those parts of the intended opus which Lotmar left behind in a form already fit for publication, will now be presented to the public. In this way, the scientific work of a formative civil law teacher, who today is perceived primarily as the creator of modern labor law, is thus finally being made available in his proper field of research, i.e. Roman law and general private law dogmatics, almost a hundred years after his death.

The Description of Formative Judaism: The Social Perspective of the Mishnah's System of Civil Law and Government

AJS Review ◽  
1980 ◽  
Vol 5 ◽  
pp. 63-79
Author(s):  
Jacob Neusner
Keyword(s):  
Civil Society ◽  
Civil Law ◽  
Status Quo ◽  
Systematic Account ◽  
The Social ◽  
The Status ◽  
The Subject ◽  
The Stability ◽  
Definition Of ◽  
The Temple

Mishnah's division of Damages presents a complete and systematic account of a theory of Israelite civil law and government. While drawing on diverse materials of earlier ages, beginning, of course, with the diverse Mosaic codes themselves, Mishnah's system came to closure after the Bar Kokhba War. Like its account of the Temple and its cult, Mishnah here speaks of nonexistent institutions and prohibited activities. There being no Israelite government, Mishnah's legislation for a high priest and Temple, a king and an army, speaks of a world which may have been in times past (this is dubious) but did not exist at the time of the Mishnaic discourse on the subject. The division of damages is composed of two subsystems which fit together logically, one on the conduct of civil society—commerce, trade, real estate, the other on the institutions of civil society—courts, administration. The main point of the former subsystem is that the task of society is to maintain perfect stasis, to preserve the status quo, and to secure the stability of all transactions. In the interchange of buying and selling, giving and taking, torts and damages, there must be an essential equality of exchange. No one should come out with more than he had at the outset. There should be no sizable shift in fortune or circumstance. The stable and unchanging economy of society must be preserved. The aim of the law is to restore the antecedent status of a person who has been injured. When we ask whose perspective is represented in a system of such a character and such emphases, we turn to examine the recurrent subject-matter of the division's cases. The subject of all predicates, in fact, is the householder, the small landholder. The definition of the problems for Mishnah's attention accords with the matters of concrete concern to the proprietary class: responsible, undercapitalized, overextended, committed to a barter economy (in a world of specie and currency), above all, aching for a stable and reliable world in which to do its work.

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 Romiešu sabiedrības līgums (societa) un romiešu tiesiskie principi mūsdienu Latvijas tiesībās

2015 ◽  
Vol 3 (3) ◽  
pp. 91-98
Author(s):  
Allars Apsītis
Keyword(s):  
Subject Matter ◽  
Civil Law ◽  
Legal Regulation ◽  
Roman Law ◽  
Legal Principles ◽  
Moral Principles ◽  
The Subject ◽  
The Republic ◽  
Partnership Agreement

Rakstā atspoguļoti autora veiktās romiešu tiesību pirmavotu, galvenokārt romiešu sabiedrības līguma (societa – lat. val.), tiesiskā regulējuma izpētes rezultāti par minētā regulējuma un modernās Latvijas likumdošanas aktu idejiskajām kopsakarībām. Tajā uzsvērta romiešu legālo principu ietekme uz tādu darījumu, kuru priekšmets ir neatļauta un nepieklājīga darbība ar reliģijai, likumiem vai labiem tikumiem pretēju mērķi, spēkā neesamības tiesiskajā reglamentācijā, kā arī uz Latvijas Republikas Civillikumā ietverto “maldības”, “viltus”, “nosacījumu”, “termiņu” un “tiesiska darījuma formas” koncepciju romiskajiem pamatiem. Latvijas pētnieki minēto tematiku šādā skatupunktā īpaši nav aplūkojuši, ar publikācijām latviešu valodā autoram saskarties nav nācies, tāpēc šis pētījums varētu dot ieguldījumu nacionālās tiesību zinātnes attīstībā. The article deals with the results of the author’s research performed on the original sources of the legal regulation of Roman Law, mainly, Roman partnership agreement (societa – Latin) in relation to the principles of interconnections between the above mentioned regulation and the legislative acts of modern Latvia. The influence of Roman legal principles in relation to the regulation of an impermissible or indecent action has been pointed out, the purpose of which is contrary to religion, laws or moral principles – it may not be the subject-matter of a lawful transaction; such a transaction is void; there have also been emphasised such concepts as “mistake”, “fraud”, “conditions”, “terms” and “form of lawful transaction”, which are based on the Roman Law and included into the Civil Law of the Republic of Latvia. Latvian researchers have not studied the above mentioned problems in relation to these aspects; the author has not found any publication in Latvian concerning these issues. Thus, the research might be a particular contribution to the development of national jurisprudence.

Purific(a)tion. Polish Literature at the Turn of the 20th and the 21st Centuries

Tekstualia ◽  
2020 ◽  
Vol 4 (63) ◽  
pp. 69-92
Author(s):  
Marcin Czardybon
Keyword(s):  
Psychoanalytic Theory ◽  
Social Reality ◽  
The Political ◽  
Political Transformation ◽  
Jean Baudrillard ◽  
Alain Badiou ◽  
Polish Literature ◽  
The Social ◽  
The Subject

The article shows how Polish writers at the turn of the 20th and the 21st centuries problematized the subject of the political transformation and – more broadly – of the country’s social reality after 1989. The category of purifi cation, which is key to the entire argument, refers in the above-outlined context to the tendency to reject and purify the most disappointing manifestations of the social reality of regained independence. This issue is presented within the framework of the Hegelian approach to the problem of freedom, the psychoanalytic theory of melancholy, and the diagnoses formulated by Jean Baudrillard and Alain Badiou.

scholarly journals LA CURIEUSE DESTINÉE DE LA RES ROMAINE : DU CHAMP PROCESSUEL AUX MUTATIONS MODERNES

2017 ◽  
Vol 30 ◽  
pp. 67-83
Author(s):  
Arnaud PATURET
Keyword(s):  
Civil Law ◽  
Roman Law ◽  
Legal Process ◽  
Law System ◽  
The Subject ◽  
Legal Concepts

Roman Law is often considered as an intellectual matrix of contemporary laws and in particular French civil law. However, even if the vocabulary persisted, some legal concepts went throught great changes across history as law was step by step related to a subject’s power. The notion of thing originally meant the trial, the case, the litigious situation managed by the legal process. In this way the thing was directly a res iuris. In contemporary law system, the thing ordinarily specifies some goods on which the subject applies his property power. This view is understandable considering the evolution due to the theorization of subjective law that leads to promote a strong and exclusive separation between persons and things while Roman law could imbricate these legal categories.

scholarly journals Emergence of the category of “accessority” and historical peculiarities of its reception in Russian civil law

2021 ◽  
pp. 1-15
Author(s):  
Igor' Olegovich Nadtochii ◽  
Roman Petrovich Trukhan
Keyword(s):  
Civil Law ◽  
Roman Law ◽  
Soviet Period ◽  
Legal Doctrine ◽  
Legal Relationship ◽  
Long Time ◽  
The Subject ◽  
Russian Law ◽  
Civil Science ◽  
Definition Of

The subject of the article is the examination of evolution of the institution of accessory obligations and its gradual “infiltration” into Russian law. The author reviews the genesis of the category of “accessority” in Roman law, within the framework of which its initial formula “the validity of the accessory legal relationship is predetermined by the validity of the basic legal relationship" gained widespread. Description is given to the peculiarities of evolution of accessority in Russian law. In civil law of pre-revolutionary Russia, accessority was being neglected for a long time. In the Soviet period, the identification of the terms “security obligation” and “accessory obligation” established in civil science. Currently, in Russian law, the concept of “accessority” is identified with the security obligation. The conclusion is made on versatility of the category of “accessority”. In the course of the development of law, the concept of accessory obligations undergone significant changes – from perception of accessority as a certain obligation that ensures the repayment of debt and the transfer of “belonging” to the sold goods towards its identification with security obligations as a whole. With time, the opinion that accessority is attributed to different types of obligations with own features and specifics, has established in the legal doctrine. The relevance of the selected topic is defined by a range of problematic questions, which have not been previously covered in Russian civil science. Thus, the legislation of the Russian Federation does not contain a legal definition of the concept of accessory obligations. The civil law doctrine also does not have a unanimity of opinion on the matter. The authors assume that the established situation, namely in the context of the civil legislation that has been fundamentally reformed in 2012 – 2015, does not contribute to unified understanding of the essence of accessory obligations and optimization of their doctrinal interpretation.

scholarly journals ‘SUPERFICIES’ – RZYMSKIE KORZENIE PRAWA ZABUDOWY

2016 ◽  
Vol 15 (1) ◽  
pp. 5
Author(s):  
Marzena Dyjakowska
Keyword(s):  
Civil Law ◽  
Roman Law ◽  
Legal Situation ◽  
The Subject ◽  
Polish Law ◽  
Draft Bill ◽  
The 1960S ◽  
The Right ◽  
Austrian Law ◽  
Bürgerliches Gesetzbuch

‘Superficies’: The Roman Origins Of The Right To Build Upon A Plot Of LandSummaryThe aim of this paper is to present the Roman origin of the right of superficies (the right to erect a building on a plot of land), which is thesubject of a bill drafted by the Polish Civil Law Codification Committee. This right is to replace the institution of perpetual usufruct, which has been extant in Polish civil law since the 1960s. Superficies has been present in many European systems of law (for example in the Bürgerliches Gesetzbuch German Civil Code of 1896, and the Austrian law of 1919). The author compares the subject and object of the right in question, the legal situation of the superficiarius and the rights of the owner of the land in Roman law and in the Polish draft bill. The main difference between the Roman superficies and the right proposed in the draft bill is the deviation from the principle of accession (superficies solo cedit): under the Polish draft bill the superficiarius will become the owner of the building. Furthermore, the Roman superficies was perpetual; in Poland it will be constructed as temporary (30-100 years). Both rights (in Roman and Polish law) share many other similarities: they are hereditary, and the superficiarius is to pay the owner of the land. The conclusion which may be drawn is that Roman institutions can still inspire the contemporary legislator.

scholarly journals Subject of obligation in relation to provision of statement about circumstances

2020 ◽  
pp. 89-98
Author(s):  
Olesia Emelianova
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Roman Law ◽  
Private Law ◽  
Legal Doctrine ◽  
Foreign Law ◽  
German Legislation ◽  
History Of ◽  
The Subject ◽  
The Russian Federation

This article presents a brief analysis of the current norms of civil law in the Russian Federation, practice of their implementation, sources of the Roman private law, and norms of foreign law for the purpose of determination of the subject of obligation that emerges as a result of provision of statement about circumstances. The question of correspondence of such obligation to the criterion of validity is being addressed. The provisions of legal doctrine with regards to structure, essence and content of obligation, as well as approaches of legal technique and history of Roman law are used for argumentation of the main conclusions of this research. As a result, the author was able to formulate the subject of obligation that emerges on the basis of statement about circumstances. Obligations characterized by such subject are detected in the Roman private law and modern German legislation. The acquired results allow concluding that obligation due to provision of statement about circumstances is not an extraneous element of the system of civil law of the Russian Federation.

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