scholarly journals THE SCIENCE OF LAW REGARDING NEW LEGAL CONTRACTUAL COMMERCIAL INSTITUTIONS FROM THE POINT OF VIEW OF THE CONTINENTAL CIVIL LAW SYSTEMS: THE SPANISH AND GERMAN EXAMPLES

2019 ◽  
Vol 35 (4) ◽  
pp. 73-102
Author(s):  
Juan Palao-Uceda
Keyword(s):  
Civil Law ◽  
Point Of View ◽  
Roman Law ◽  
Legal Tradition ◽  
Basic Concepts ◽  
Over Time

This article tries to return to the essence of civil law which, with a little more than ten key contractual institutions, allows all disputes created from newly founded institutions to be examined and interpreted. If law is science it must be ableto be reduced to a set of basic concepts that have been coined and concluded from daily contractual practice and, almost in their entirety, have been in force over time. Hence the study of Roman law and Roman legal tradition remain a constantreference to our continental law. However, this does not prevent them from being open to gradual enrichment.

scholarly journals O AKTUALNOSTI CASUUM COMMORIENTIUM U RIMSKOM I SUVREMENOM EUROPSKOM PRIVATNOM PRAVU

2021 ◽  
Vol 37 (3-4) ◽  
pp. 171-200
Author(s):  
Mirza Hebib
Keyword(s):  
Civil Law ◽  
Roman Law ◽  
Temporal Distance ◽  
Private Law ◽  
Legal Tradition ◽  
Inheritance Law ◽  
Legal Position ◽  
Basic Concepts ◽  
Over Time

In the Roman legal tradition, but also in modern civil law systems, the term commorientes (lat. commorientes) refers to persons who died in the same accident or other danger, standing in a legal position relevant to inheritance law. In connection with the resolution of such situations in the theory of private law, various legal presumptions have been developed since the period of classical Roman law. All these presumptions can be systematized within two basic concepts - the first based on the presumption of survival of subjects and the second based on the presumption of the simultaneous death of subjects. Comparatively, in the development of European private law, there has been a reception of both concepts, with the proviso that over time the concept of simultaneity will almost completely suppress the concept of survival. The paper analyzes the reasons for this. In establishing a link between Roman roots and European private law, special attention is given to the possibility of applying presumptions in cases where there is a certain spatial or temporal distance between the deaths of persons or if a different cause has led to fatal consequences. Ultimately, the paper clearly points to the importance of Roman rules, which can sometimes be fundamental in understanding the institutes of contemporary private law.

scholarly journals Arbitraža po uzoru na rimsko pravo u graničnom sporu između Lovrana i Mošćenica (1646.)

2020 ◽  
Vol 40 (3) ◽  
pp. 987-1006
Author(s):  
Ivan Milotić
Keyword(s):  
Point Of View ◽  
Roman Law ◽  
Legal Tradition ◽  
Legal Documents ◽  
Legal Traditions ◽  
Canonical Process ◽  
Ius Commune ◽  
Latin Language ◽  
Legal Concepts ◽  
Key Terms

The boundary dispute between Lovran and Mošćenice of 1646 quite recently received some attention in the literature and was simultaneously adequately elaborated form palaeographic and philological point of view. Despite the fact that it is substantially a legal act, its legal content did not receive adequate attention of the scholars, which may primarily be said with reference to its institutes, terms and expressions whose precision, accuracy and legal technical at first sight most evidently depart from the local feudal legal customs and legal traditions. Moreover, nevertheless that these terms and expressions were written down in Italian language of the time, they evidently represent Italianized version of terms, expression and legal concepts that originally belong to Latin language. Additionally, their mentions in the document at hand have no resemblance to the usual medieval descriptions of the legal phenomena which have a little in common with normative language or to administrativefunctional style of that time which distinctively shaped the legal documents. Because all these indications suggest that the key terms, expressions and institutes pertinent to the boundary dispute between Lovran and Mošćenice (and its resolution) might be borrowed from the Roman legal tradition (which outreached this territory by means of ius commune) and the Romano-canonical process, this paper examines origin, roles and functions which were achieved in practice by their use in this particular legal matter. The paper will specifically explore the procedural mechanism which was employed to reach settlement of the boundary dispute between Lovran and Mošćenice and will additionally provide a deeper insight into the possibility that in this particular case arbitration conceptually based on the Roman law was employed as the means of dispute resolution.

scholarly journals Guilt as One of the Grounds for the Prohibition (Suspension) Activities on the Russian Civil Law

2021 ◽  
Vol 2 ◽  
pp. 55-62
Author(s):  
E.M. Senotrusova ◽  
◽  
Keyword(s):  
Russian Federation ◽  
Special Functions ◽  
Objective Assessment ◽  
Civil Law ◽  
Civil Code ◽  
Individual Characteristics ◽  
Point Of View ◽  
Roman Law ◽  
Private Law ◽  
The Russian Federation

The article considers the essence of the category of guilt as one of the grounds for prohibiting (suspending) activities under Russian civil law. The article analyzes the shortcomings ofthe legal definition of guilt stipulated in article 401 of the civil code of the Russian Federation due to the mixing of objectivist and subjectivist concepts. Based on the analysis of the judicial practice of the application of Article 1065 of the Civil Code of the Russian Federation, a conclusion was made about the unsatisfactory state of law enforcement in establishing guilt in a person’s behavior. Monuments of Roman law are studied for the purpose of revealing the category of guilt. A brief overview of approaches to the concept of guilt in the civil legislation of a number of foreign countries and in the Model rules of European Private Law is given. The positions of the Supreme Court of Austria and the countries of the Anglo-Saxon legal family are given on this issue. The article briefly covers the integral theory developed By E. A. Kramer for the objective assessment of individuals ‘ discretion in conducting any activity that may entail adverse consequences for third parties. In connection with the special functions and purpose of the Institute of responsibility in private law and institute for the prevention of harm, the conclusion is defended that it is unacceptable to directly borrow the category of guilt from criminal law to civil law. The article substantiates the need to apply the objectivist concept of guilt in civil law as a deviation from the standard of behavior of an ordinary reasonable participant in the turnover, taking into account individual characteristics of a person. Taking into account the provisions of the current civil legislation on liability, a conclusion was made about the possibility of applying a simplified scheme of forms and types of guilt, including when deciding on the establishment of an injunction. The question of the ratio of guilt, considered from the point of view of the objectivist approach, and wrongfulness is touched upon.

scholarly journals Civil Liability Resulting from Sport Referees Misjudgment

2017 ◽  
Vol 6 (3) ◽  
pp. 54-59
Author(s):  
Seyed hassan Hosseinimoghaddam
Keyword(s):  
Civil Law ◽  
Civil Liability ◽  
Point Of View ◽  
Maximum Reaction ◽  
Changes Over Time ◽  
Legal Consequences ◽  
Over Time

There is no doubt that sport is helping people to have health and happiness.  However,   this has undergone several changes over time since but there was professional the sports mix with championship and all there phenomena.  Nowadays, sport is considered as a profession and many companies and plus can see it as a business.  Moreover, governments mix the scores with politics.  Referees are not guaranteeing discipline in sport fields. The decisions referees make have some consequences including civil responsibilities.  So, the referees are expected to make up for theor loss caused by their decisions. From this point of view the responsibilities of the referrals should be investigated to clarify the limits of their responsibilities and the extent to which they have to make up for the loss. If these limitations are not clarified the maximum reaction the referee may receive would not extend notifications of unfair decisions which may not have any legal consequences for him. The may not be responsible to the loss caused by his decisions regarding the breakdown of club properties or viewers of the match. It should be noted that the referee alone is not responsible for making up the loss and should make up for that as one of the casual elements according to the civil law and Islamic punishment rule acted in 2013.

The Civil Law Legal Tradition

2021 ◽  
pp. 9-26
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Civil Law ◽  
Roman Law ◽  
Jury Trial ◽  
Constitutional Court ◽  
Legal Tradition ◽  
Constitutional Courts ◽  
Supreme Courts ◽  
Council Of State

This chapter traces the origins and development of the civil law legal tradition, which assigns to judges only a mechanical, highly constrained form of decision-making. The civil law legal tradition is characterized globally by a historical reliance on Roman law; a modern rationalist code and no body of judge-made case law under the code; textualism and formalism; and the absence of jury trial and an inquisitorial approach to civil and criminal procedure. The civil law tradition allows judicial review, which has been seen as being inherently political, to be exercised soley by a separate institution, called a Constitutional Court, which alone interprets and enforces the Constitution and which is de facto the most important court in the country, even though de jure there are coequal courts of cassation and councils of state. Traditionally, judges received little social deference and were low on the hierarchy of status in civil law countries, whereas scholars and codifiers came first. The civil law legal tradition conceives of the separation of powers in a very wooden, ahistorical way that precludes judges from ever making policy by deciding administrative law and constitutional law cases. It was therefore necessary to create powerful constitutional courts as a specially chosen fourth branch of government in order for judicial review to work in civil law countries. The chapter conclude by looking at the court systems in civil law countries, which typically have three supreme courts: 1) a constitutional court; 2) a court of cassation; and 3) a council of state.

scholarly journals O użyteczności badań nad prawem rzymskim – refleksje na kanwie rozprawy Joanny Kruszyńskiej-Koli pt. Ratio przedawnienia

2021 ◽  
Vol 14 (3) ◽  
pp. 355-368
Author(s):  
Marek Sobczyk
Keyword(s):  
Civil Law ◽  
Point Of View ◽  
Roman Law ◽  
Personal Opinion ◽  
Depth Analysis ◽  
History Of ◽  
Excellent Method ◽  
History Of Law ◽  
Historical Methodology

On the Usefulness of Research into Roman Law – Some Reflections on the Joanna Kruszyńska – Kola’s Dissertation Ratio przedawnienia [The ratio of prescription] In this paper I present my personal opinion on the role of present-day research into the history of law, especially into Roman law, referring to the wider issue of the usefulness of Roman law in the future development of private law. I emphasize the clear deficit of communication between historians and proponents of modern law doctrine. This shortcoming is manifested in the lack of interest that lawyers tend to display in achievements in the field of legal history, and is proved more concretely by the fact that the references to the history in monographs on civil law are often only superficial and fragmentary. Unfortunately, legal historians rarely try to initiate any real dialogue with the practitioners of civil law doctrine. This approach offers a profound and compelling study, which both takes the present point of view into consideration and tackles many of the questions that are important and interesting today. I intend to indicate at least some basic issues that should be taken into consideration by legal historians who want to pique other lawyers’ interest in their works. In my opinion, the most important aspects are the choice of an attractive topic, that is not confined only to history; proper identification of the detailed issues, including such issues as are crucial and interesting today; and in-depth analysis of both current law and the discourse held in modern doctrine. It is significant to combine the appropriate historical methodology with the need for an attractive and communicative presentation of the research and its results. In her dissertation on the ratio of prescription Joanna Kruszyńska-Kola proposes an excellent method for improving communication with proponents of modern law doctrine. I am convinced that her work brings substance to the vision of research into the history of law which is described in my paper, for that reason I demonstrate how the author managed to achieve the purpose that legal historians should be pursuing.

scholarly journals Comments on the Influence of Canon Law on the Common Law Legal Tradition

2019 ◽  
Vol 20 (1) ◽  
pp. 5-30
Author(s):  
Javier Martínez-Torrón ◽  
Lorraine Hernández
Keyword(s):  
Canon Law ◽  
Common Law ◽  
Civil Law ◽  
Good Faith ◽  
Roman Law ◽  
Considerable Influence ◽  
Legal Tradition ◽  
Evolutionary Path ◽  
Conventional View ◽  
The Common

In this paper, the author questions the conventional view that the civil law and common law traditions are radically different in their reception of Roman Law. He argues that Roman Law concepts, mediated by canon law, exerted a considerable influence over the common law. He identifies a number of channels through which this influence has shaped common law concepts. Thus, canonical equitas probably served as a model for the equitable rules bases on good faith. Although common law evolved in a distinctive way, because of procedural considerations, its evolutionary path had already been followed by that of canon law.

scholarly journals Rhodian law as a prototype of the claim for damage

2019 ◽  
pp. 203-215
Author(s):  
Beata J. Kowalczyk
Keyword(s):  
Comparative Analysis ◽  
Legal System ◽  
Civil Law ◽  
Third Parties ◽  
Point Of View ◽  
Roman Law ◽  
Classical Period ◽  
Preventive Behavior ◽  
Legal Systems ◽  
General Average

The doctrine of Rhodian law of jettison has a long history in Roman law and has been inherited by numerous legal systems of today. during the pre-classical period of Roman law, Rhodian law was incorporated in the Roman legal system, and probably it was implied in all contracts of carrying goods by sea. Rhodian law was also a prototype of a claim for damage suffered in another person’s interests in Polish civil law. The Author presents the origin of general average, the reasons of the introduction of this regulation, as well as its function in roman law and Polish civil law. The article explores the premises of the regulation and provides its comparative analysis. Art. 438 of the Polish Civil Code of 1964 is rarely used in practice due to many competing actions that can be taken by suffered persons. From the point of view of the purpose of this regulation, the most important is to encourage third parties to intervene in the interests of others, which is desirable preventive behavior that can be recognized as a quasi- preventive remedy and is necessary in today’s society.

scholarly journals PRAWO RZYMSKIE W ŚWIECIE WSPóŁCZESNYM WEDŁUG HENRYKA KUPISZEWSKIEGO

2016 ◽  
Vol 15 (2) ◽  
pp. 123
Author(s):  
Janusz Sondel
Keyword(s):  
Middle Ages ◽  
Civil Law ◽  
Point Of View ◽  
Roman Law ◽  
Ethical Values ◽  
Special Significance ◽  
Historical Aspect ◽  
Contemporary World ◽  
Two Factors ◽  
Roman Culture

Roman Law In The Contemporary World According To Henryk Kupiszewski Summary The 1988 publication of Henryk Kupiszewski’s book on Roman law and the contemporary world (Prawo rzymskie a współczesność) was a milestone in Polish scholarship. It was written in reaction to the attempts which had been continually undertaken under the People’s Republic of Poland to remove Roman law from the teaching syllabus. The book triggered vociferous protest against the attempt to turn the faculties of law at Polish universities into vocational colleges, at the same time stimulating research on Roman law, not only in its historical aspect but also from the point of view of its value for the present times. An image emerged of Kupiszewski as an outstanding scholar of the humanities, for whom the ethical values in Roman law were just as important as the institutions it created which were subsequently adopted by the legislative systems of latter-day civilised states. Professor Kupiszewski, an advocate of the theory of continuity in the Roman culture and civilisation following the Germanic invasion, drew attention to two factors which turned out to be particularly relevant for the continuation of Roman law – education and the notarial service. He held that especially the latter was of seminal importance, since the formulas notaries reproduced time and again in documents carried the precepts of Roman law well into the Middle Ages. He attributed a special significance to the inspiration Roman law engendered, which he saw as its principal contemporary value. And one can hardly disagree if one recalls a remark he made, that “Justinian’s compilation is a rich store full of things that are required nowadays” is still being confirmed in the work of today’s specialists in civil law.

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