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.

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 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.

The Civil Code, Civil Liability, and Contract Law

2018 ◽  
Author(s):  
Simon Butt ◽  
Tim Lindsey
Keyword(s):  
Civil Law ◽  
Civil Liability ◽  
Contract Law ◽  
Civil Code ◽  
Vicarious Liability ◽  
Construction Contracts ◽  
Commercial Code ◽  
Dutch Language ◽  
Formal Requirements ◽  
Code Civil

This chapter is about civil law in Indonesia, which is archaic and unsuited to contemporary needs. It begins by discussing the problematic influence of Dutch colonial law in this area—in particular, the Civil Code and Commercial Code, both 19th century Dutch-language texts—before explaining the operation of Article 1365 of the Civil Code, the main source of civil liability (tort) in Indonesia. After covering vicarious liability and agency, the chapter provides a summary of contract law, including the elements of a valid contact, performance, termination, and material and immaterial damages. It also deals with formal requirements, including notarisation and rules that require some contracts to be in Indonesian. It concludes with an account of consumer, e-commerce and construction contracts, to which particular rules apply.

A Comparative Perspective on the Concept of Ownership in Russian Law: From the Svod Zakonov to the 1994 Civil Code

2016 ◽  
Vol 41 (3-4) ◽  
pp. 263-341 ◽  
Author(s):  
Murray Raff ◽  
Anna Taitslin
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Local Variation ◽  
Operative Management ◽  
Land Ownership ◽  
Civil Code ◽  
State Ownership ◽  
Roman Law ◽  
The Right ◽  
Unitary Concept

The modern European unitary conception of ownership emerged from the dissolution of feudalism and achievement of a deeper understanding of Roman law to become an ideal of property law in the European Civil-Law tradition. Prior to its dissolution European feudalism represented hierarchies of legal tenure in land, such as the division of land ownership between dominus directus (direct owner) and dominus utilis (beneficial owner) and overlapping hierarchies of social class descending from monarchy and aristocracy to bonded serfdom. Support for the resolution of divided land ownership and victory for the unitary concept of ownership was found in the Roman law tradition. The dissolution of feudal hierarchies took different historical courses in the legal traditions that we now identify as the French, German, Common-Law and Russian legal systems and with great local variation even within those emergent traditions. The unitary concept of ownership is found today in the French and German Civil Codes and is for practical purposes reflected in the prevalence of the common-law tenure of freehold. In Russia the systemized digest of the laws of the Russian Empire, the Svod Zakonov of 1832, provided no civil-law notion of divided ownership or perpetual rights. In the Soviet era exclusive state ownership of land and the means of production was also viewed as unitary, which raised serious questions about how state agencies and enterprises could engage in transactions with their assets and products. Venediktov’s celebrated doctrine of the right of operative management, codified in the Civil Code of the rsfr of 1964, provided legal recognition of de facto proprietary rights for state enterprises. This introduced a form of divided ownership ‘on the ground’ despite the dogma of unitary state ownership. This reality further manifested itself in widespread division of ownership between land and buildings. The Civil Code of the Russian Federation of 1994 retained and even extended some of these solutions that relied on split or divided ownership. This might have been a pragmatic way forward in the early 1990s, however twenty years later the demands of a modern sophisticated legal system require a policy trajectory back toward a modern European unitary conception of ownership. The Russian Civil Code thus should be extended in this direction.

scholarly journals Compulsory Portion and Family Provision in the Netherlands

2020 ◽  
pp. 319-344
Author(s):  
Wilbert D Kolkman
Keyword(s):  
Complex System ◽  
The Netherlands ◽  
Hybrid System ◽  
Common Law ◽  
Civil Law ◽  
Civil Code ◽  
Historical Overview ◽  
German Model ◽  
French Model

This chapter describes and analyses the Dutch rules on mandatory family protection. It starts with a historical overview, leading to the Civil Code of 1838 with its forced heirship (on the French model). In 2003, the Netherlands moved from this forced heirship (in kind) to a compulsory portion (in value) for descendants (on the German model). For the surviving spouse and the children the new Civil Code introduced ‘other statutory entitlements’ in the form of a right of usufruct and lump sums. The results is a hybrid system of family protection, with both civil law (fixed portion) and common law (discretionary claim) features. The chapter sheds light on a number of problems arising from this complex system, such as the role of gifts. It concludes by arguing that the compulsory portion can be abolished.

scholarly journals Specific Performance in the Civil Law: Mediating Between Inconsistent Principles Inherited from a Roman-Canonical Tradition via the French Astreinte and the Québec Injunction

2019 ◽  
Vol 24 (4) ◽  
pp. 515-554
Author(s):  
George Vlavianos
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Roman Law ◽  
Classical Period ◽  
Court Order ◽  
Lower Canada ◽  
Specific Performance ◽  
Contractual Obligations ◽  
Substantive Law ◽  
Code Civil

Traditionally, inexecution of a contractual obligation in the civil law gives rise to an award in damages. This principle stems from Roman law of the classical period, which held to the maxim Nemo praecise cogi potest ad factum. In the post-classical period, however, the influence of ecclesiastical courts and the Christian notion of fidei laesio imposed itself on the classical pre-eminence of damages. Consequently, contractual obligations were often specifically enforced by secular courts based on the pacta sunt servanda doctrine of the canon law. Yet damages and specific performance, it is argued, are from the outset conceptually irreconcilable remedies. The full import of the nemo praecise principle prohibits all acts compelling the debtor to perform, whether such compulsion be physical or one of conscience. Pacta sunt servanda, on the other hand, maintains that that which has been promised should be performed, by force if necessary. In France, the mechanism of astreinte — a comminatory fine imposed on the debtor upon his failure to comply with a court order — is used to specifically enforce contractual obligations. This is done despite the fact that execution in kind is not expressly sanctioned by the Code civil. In Québec, courts have been slow to acknowledge the suitability of specific performance in the context of contractual obligations. The source of such hesitation is codally rooted, as the Civil Code of Lower Canada, in terms similar to the French Code civil, enunciates the supremacy of damages at article 1065. But this situation will change with the arrival of the new Civil Code of Québec. With this reorientation of the substantive law, Québec courts will be procedurally better equipped to enforce specific performance than their French counterparts. In essence, via the injunction, a court may physically compel a recalcitrant debtor. Despite its common law origins, the author contends that the injunction is not incompatible with the law of obligations in Québec. Any perceived incompatibility in the realm of contract law arises from the initial irreconcilability of damages and specific performance.

scholarly journals Commercial name in the draft of the Civil Code

2012 ◽  
Vol 60 (2) ◽  
pp. 271-278 ◽  
Author(s):  
Jarmila Pokorná ◽  
Eva Večerková
Keyword(s):  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Legal Regulations ◽  
Legal Form ◽  
Natural Person ◽  
Injured Person ◽  
Commercial Code ◽  
Draft Bill ◽  
General Regulation

Name of the firm is by the Commercial Code name of the entrepreneur registered in commercial register. The effective legal regulation distinguishs between the name of natural person (its first name and surname) and the name of company (its name and obligatory addition declaring its legal form). The name is not allowed to be deceptive and mistakable. It can be transfered only together with an enterprise. If the name is unwarrantedly interferented the injured person can require an unwarranted user to forbear his behaviour and to eliminate the defective state. He can also demand delivery of an unwarranted enrichment, adequate satisfaction and damages.Reform of civil law transposes the regulation of name of the firm to Civil Code, but maintains some principles of existing legal regulations: the name is a designation for entrepreneurs registered in commercial register, it is not allowed to be deceptive and mistakable. However the draft bill of the Civil Code brings change in some elements of the regulation: natural person does not need to use obligatory name and surname, right to use the name by its transition on a new user is regulated in more detail and more detailed is also the regulation of using the names of natural persons in names of companies.By way of contrast possibility of transfer of the name is not explicitly solved. It may be used the general regulation about transfer of the thing. Existing interpretative problems become this way deeper.

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 The Construction and Practice of the Right of Residence System from the Perspectives of China

2021 ◽  
pp. 29-34
Author(s):  
Miao Chungang
Keyword(s):  
Social Life ◽  
Comparative Method ◽  
Civil Law ◽  
Civil Code ◽  
Social Needs ◽  
Roman Law ◽  
Value Judgments ◽  
Cultural Traditions ◽  
History Of ◽  
The Right

In the history of civil law, the residence right system, as a representative of human servitude, originated from Roman law and continued to develop in the "French Civil Code" and "German Civil Code". Based on the differences between Chinese and Western social and cultural traditions, Japanese civil law did not accept the human servitude system in the initial legal inheritance, and modern Chinese civil law also abandoned the human servitude system based on similar cultural value judgments. With the major changes in social life, based on the response to real social needs, the "Civil Code of the People's Republic of China" created a system of residency rights. This article uses the comparative method to study the historical evolution of the housing rights system, and explore the legal and cultural roots behind the establishment of the system. At the same time, with the help of typical cases, it analyzes the practice of the right of residence after the promulgation of the Civil Code and discusses the legal perfection of the right of residence system. This article points out the unpaid nature of the right of residence, which can easily hinder the development and effectiveness of the right of residence system. In the future judicial practice, we need to expand the interpretation of the law, expand the scope of the right of residence, and expand the legal function of the right of residence system, so as to make full use of social resources to meet the public's housing needs.

scholarly journals New in the Czech Civil Code – Rules on Family Enterprise

2020 ◽  
Vol 14 (2) ◽  
pp. 137-152
Author(s):  
Karel Marek ◽  
Martin Janků
Keyword(s):  
Family Business ◽  
First Generation ◽  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Commercial Law ◽  
The Czech Republic ◽  
Family Enterprise ◽  
Commercial Code ◽  
The Family

For more than two decades the family business enterprises of the first generation (generation of founders) are more and more dominating in the category of today’s Small and Medium-sized Enterprises in the Czech Republic. The necessary legal background defining the legal relationships and rights of all participating persons was, however, limited to general provisions in the Commercial Code that hasn’t solved many of the problems associated thereto. Only in 2012 the new Czech Civil Code, Act. No 89/2012 Coll., introduced the institute of family enterprise as completely new term in the Czech Civil law. The present paper aims to analyse the key rules of this new legal regulation, focusing on significant aspects of the institute in the context of commercial law and family law, as well as to highlight the potential weaknesses in the regulation itself.

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