Claiming the nullity of a substantive right in the levy of execution. The issue of unfair and unwritten terms

The present study aims at the extended interpretation of the legislative reformulation of the article 713 paragraph (2) Criminal Procedure Code through the Law no. 310/2018 on the amendments the Code of Civil Procedure, with emphasis on the possibility and, in concreto, on the admissibility to claim the nullity of the substantive law (also in respect of unfair or unwritten terms), but also other causes of ineffectiveness of the legal act constituting enforceable title, other than a court judgement. The problem of interpretation was generated by the addition of the phrase „including a common law action” at the end of the legal text which allows to invoke some de facto or de jure reasons relating to the substance of the law, in the levy of execution regarding another writ of execution than a court judgement, as long as the law does not provide another procedural way to annul it. The notion of “procedural action” being chosen and the identification of the action “of general jurisdiction” are going to generate non-unitary practice, so we opted for their explanation, but the present study aims mainly to argue that the legislative amendment does not affect however, the possibility to claim, in the levy of execution, of some causes of ineffectiveness of the legal act representing the enforceable title, such as absolute or relative nullity (total or partial) of general jurisdiction, but also when it is determined by the identification of unfair terms or terms deemed as unwritten, but also the possibility to claim the exception of non-execution of the contract, along with other permitted defences (legal compensation, statute of limitation, force majeure, causes of extinction of the claim, etc.). In particular, in the area of abusive clauses, although the debtor has the right to an action of general jurisdiction, the national judge will not be able to allow the inadmissibly of their claim by way of the levy of execution. The conclusions of the study are of the utmost importance and can contribute to the standardization of the judicial practice and, in terms of abusive clauses, to its harmonization with the jurisprudence of the C.J.E.U. (Court of Justice of the European Union).

CHARAKTER ZAKAZU ALIENACJI NIERUCHOMOŚCI POSAGOWYCH W RZYMSKIM PRAWIE KLASYCZNYM

LEGAL CHARACTER OF THE PROHIBITION AGAINST ALIENATION OF DOWRY IMMOVABLES IN THE CLASSICAL ROMAN LAWSummary The well known lex Iulia de fundo dotali prohibited alienation of a Italian land being part of a dowry without women’s consent. The very meaning of this prohibition attracted very much attention of the Roman law scholars in the 20th century. The problem was as follows: was the disposition in breach of the lex Julia null and void (absolute nullity), or was it only voidable by the woman (respective nullity) after the dissolution of her marriage. The later opinion seems to be dominating in 20th century writings on Roman law, since Pierre Noailles had advocated it in his book L’inaliénabilité dotale et la Novelle 61 (Grenoble, 1919). It was subsequently affirmated by such emminent authors like Fritz Pringsheim or Paul Koschaker and became ‘canonic’ oppinion among Roman law scholars. The problem in itself was alien to Romans knowing no difference between absoluteand respective nullity of a disposition, but it looks like, virtual position of Romanlaw in this respect, was not the most attractive to modern scholars. The present paper re-considers the issue taking slightly different departurepoint to that of Noailles and his followers. In the first instance, the category of leges – as regards sanctio of their prohibitory provisions – to which the lex Iulia de fundo dotali belongs is settled. Than the issue, who is entitled to vindicate the land alienated in breach of the lex Iulia, is analysed as well as possibility of convalidation of the invalid disposition. Finally it is considered, whether the statutory provision affected only real transfer of property or it frustrated already husband’s very ability to make a valid contract of sale. In effect, the argument of the present paper is as follows: alienation fundi dotalis without wife’s consent, was beyond any reasonable doubt null and void. Being still the owner of illegally alienated immovables, the husband was bound to vindicate them. For that very reason, he was not able to transfer free and unimpeded possession of the land to the unfortunate purchaser. Consequently, it was not only alienation of the land in dowry, which was null and void by virtue of the lex Iulia de fundo dotali, but also the very contract of it’s sale. Above findings require, the theory of “relative nullity” (i.e. voidability or rescindibility), as advocated by Noailles, Prinzheim and Koschaker, is to be rejected.

Reopening the Langelier—Mignault Debate on Unauthorized Transactions Involving a Minor's Property

Under section 213 C.C.Q., immovables, enterprises, and important pieces of family property belonging to a minor can only be sold in cases of necessity, and only then with prior authorization from the court or the tutorship council. What is the legal status, therefore, of a contract of sale of a minor's property made by his tutor in violation of this provision? This question inspired a vigorous debate in both France and Quebec throughout the nineteenth century. Mignault "settled'' this debate in 1896 by declaring such a contract to be tainted with relative nullity. Now, over a century later, the law's attitude toward the protection of minors has changed significantly, which makes it appropriate to revisit Mignault's thesis. This paper argues that the sanction of relative nullity is inconsistent with both the text and underlying policy objectives of the section, and that an alternative approach must be adopted.

Hypersurfaces with Null Higher Order Anisotropic Mean Curvature

Given a positive function on which satisfies a convexity condition, for , we define for hypersurfaces in the th anisotropic mean curvature function , a generalization of the usual th mean curvature function. We call a hypersurface anisotropic minimal if , and anisotropic -minimal if . Let be the set of points which are omitted by the hyperplanes tangent to . We will prove that if an oriented hypersurface is anisotropic minimal, and the set is open and nonempty, then is a part of a hyperplane of . We also prove that if an oriented hypersurface is anisotropic -minimal and its th anisotropic mean curvature is nonzero everywhere, and the set is open and nonempty, then has anisotropic relative nullity .