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.

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.

scholarly journals Nienależne świadczenie w polskim Kodeksie zobowiązań z 1933 r. na tle porównawczym

2016 ◽  
Vol 9 (1) ◽  
pp. 67-95
Author(s):  
Jan Halberda ◽  
Keyword(s):  
Civil Code ◽  
Roman Law ◽  
Legal Provisions ◽  
Polish Code ◽  
Code Civil

Undue Payment in the Polish Code of Obligations of 1933 as Compared with Other Regulations of That Time The present paper discusses the concept of undue payment as found in the Polish Code of Obligations of 1933. The research is comparative in nature since it also explores the institution in question in other contemporary codes (Code Civil, ABGB, BGB and Obligationrecht), Roman law, and the Polish Civil Code of 1964 (1). The discussion is concerned with the framework of legal provisions on undue payment in the aforementioned sources (2). Furthermore, while applying a framework of the Roman condictiones the paper analyses the grounds of the action (3). It presents circumstances which allowed a payor to seek recovery of his payment (4–6) and those which precluded the claim (7). Then the paper gives an illustration of the scope of a payee’s liability (8). In his fi nal remarks, the author attempts to assess undue payment as regulated in the Code of Obligations (9).

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.

scholarly journals Legal Consequences of the Prohibition on Widows’ Remarriage in Roman Law

2018 ◽  
Vol 18 (3) ◽  
pp. 151-177
Author(s):  
Piotr Niczyporuk ◽  
Piotr Kołodko
Keyword(s):  
Civil Law ◽  
Archaic Period ◽  
Roman Law ◽  
Classical Period ◽  
Legal Provisions ◽  
Religious Law ◽  
The Law ◽  
The Right ◽  
Legal Consequences

In the archaic period violations of the prohibition relating to mourning was regarded as a nefas and hence subject to penalisation under religious law. A widow guilty of an infringement was required to make an expiatory sacrifce known as a piaculum, viz. a bovis feta. This religious and customary practice underwent a series of transformations and eventually became a law (ius). In the pre-classical period the prohibition on the remarriage of widows in the period of mourning was perceived primarily as subject to penalties laid down by civil law. This was due to the question of the paternity of any offspring such a widow might bear in the tempus lugendi. The edictum perpetuum names the persons who were liable to infamy if they committed a breach of the prohibition on the remarriage of a widow within the period of mourning for her deceased husband. Such persons could neither engage in postulare pro aliis nor act as a procurator or cognitor. One of the consequences of a sentence of praetorian infamy was the convicted person’s forfeiture of the right to appoint his or her plenipotentiaries for legal proceedings.The classical period brought fundamental changes in the law on remarriage. Nonetheless, even though Augustus encouraged citizens to remarry, yet his legal provisions left widows a certain period of time following the loss of their husband in which they could refrain from remarrying. The reason behind this legal arrangement was not so much mourning as such; it was rather a question of Augustus wanting to show his respect for univirae (women who had been married only once). Augustus kept in force the provisions that gave a bad reputation to people who violated the prohibition of widows’ remarriage. The significance and effectiveness of these regulations made them a subject for jurists’ commentary, on account of the need to avoid situations where the paternity of children born to widows was uncertain. The prohibition on the remarriage of widows also shows that the creators of these regulations wanted marriage to be contracted primarily for the purpose of procreation, which would ensure the continuation of Roman families, especially as regards the perpetuation of their sacra, nomina, and pecunia.

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 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 Tradición romanística y perspectivas de reforma en sede de cláusula penal

2012 ◽  
Author(s):  
Alejandro Valiño Arcos
Keyword(s):  
Civil Law ◽  
General Rule ◽  
Civil Code ◽  
European Contract ◽  
Breach Of Contract ◽  
Specific Performance ◽  
El Sistema ◽  
The Common ◽  
Civil Codes ◽  
Preliminary Draft

El autor analiza el tratamiento legal de la cláusula penal en el Derecho civil español, con especial atención a la regulación que ofrece el Código civil en los artículos 1152 a 1154, las diferentes funciones que la cláusula penal cumple y el distinto régimen presente en la Lex 518 del Fuero Nuevo de Navarra, lo cual evidencia el dualismo habido en el sistema jurídico español entre el Derecho civil común (representado por el Código civil) y el derecho foral o especial (representado por distintas compilaciones de ámbito regional). La regulación del Código civil español configura la pena contractual en primer término como sustitutiva de la indemnización de daños y perjuicios prevista en el artículo 1101 del Código civil para el caso de incumplimiento contractual o para los supuestos de cumplimiento deficiente o tardío por parte del deudor. De este modo, se dispensa al acreedor de tener que recurrir a una valoración del daño efectivamente causado, de modo que la cláusula penal viene a ser una estimación anticipada del daño que sustrae al acreedor de la prueba de su existencia. Esta regulación, que se ha mantenido invariable desde la promulgación del Código civil, ha sido objeto de especial atención por parte del Anteproyecto de Modernización del Derecho de Obligaciones elaborado por la Comisión de Codificación del Ministerio de Justicia en 2009, siguiendo las orientaciones presentes en otros Códigos civiles europeos así como las aportaciones de prestigiosos académicos, que son expresión del esfuerzo en pro de la armonización del Derecho contractual europeo.The author analyses the legal treatment of the penalty clause into Spanish Civil Law, with special attention to the regulation offered by the Civil Code in their articles 1152 to 1155, the differents functions which the penalty clause achieves and the differentiated regulation into Fuero Nuevo of Navarra in the Lex 518. All of this can be seen as a reflection of the dualism in Spanish Legal System between the Common Civil Law (represented by the Spanish Civil Code) and the Foral or Special Law (represented by differents regionals compilations). The regulation of the Spanish civil code sets as general rule the contractual penalty as substitute of the regime of compensation into the article 1101 of spanish Civil Code in case of breach of contract or in case of defective or untimely performance by the debtor. This provision allows to the creditor to avoid a real damage assessment, so that the penalty clause lets a advanced estimate of damages without needing to prove them. But also admits the regulation of the penalty clause into the spanish Civil Code other functions, for instance the cumulative penalty (with the legal and previously valued compensation of damages or with the specific performance). This regulation, unchanged since the enactment of the spanish Civil Code, has been object of special attention by the preliminary draft to modernisation of the law of obligations drawn up by the Commission of Codification of the Ministry of Justice in 2009, picking up some of the guidelines present in other European Civil Codes as well as in the contributions of prestigiouses scholars, which are expression of the effort aimed at the harmonisation of European Contract Law.

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.

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