A hagyaték átadása – az öröklési bizonyítvány a román Polgári törvénykönyv és az Európai Parlament és Tanács 650/2012/EU-rendelete tükrében

Regulation (EU) No 650/2012 of the European Parliament and of the Council in matters of succession is based on the principles of uniformity and predictability. The succession procedure should be governed by a single statutory provision in each Member State, uniformly with regard to all types of property, in terms of quality of succession, provisions on the opening and place of the succession, ineligibility for inheritance, survivor’s rights. The harmonization that has begun runs counter to the different national laws and regulations of the Member States, which will only be possible to approximate over time, but uniform rules would significantly facilitate and resolve the legal problems that arise in succession proceedings.

R (on the application of Evans) and another v Attorney General [2015] UKSC 21, Supreme Court

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Evans and another) v Attorney General [2015] UKSC 21, Supreme Court. This case concerns whether Parliament can have intended for a statutory provision to allow a member of the executive to overturn the decision of a court without good, clearly articulated reasons (Lord Mance), or contrary to constitutional principle (Lord Neuberger). The document also includes supporting commentary from author Thomas Webb.

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, House of Lords

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, House of Lords. This case note deals with how the House of Lords interpreted an ouster clause, a statutory provision which seeks to prevent judicial supervision of decisions made by subordinate decision-making bodies, and considers the wider constitutional implications of the courts’ approach to ouster clauses. The document also includes supporting commentary from author Thomas Webb.

‘The Biggest Charity You’ve Never Heard of’: Institutional Logics of Charity and the State in Public Fundraising in Scotland’s NHS.

The boundaries between state and charitable activities within the NHS are set out in regulations but are also enacted, blurred, and contested through local practices. This article reports research on NHS Charities– charitable funds set up within NHS organizations to enhance statutory provision – in Scotland. We analysed financial accounts and conducted qualitative interviews with staff in 12 of the 14 NHS Charities in Scotland, where they are generally known as endowments. Our findings suggest that Scotland’s endowments are relatively wealthy in charitable terms, but that this wealth is unevenly distributed when population size and socio-economic deprivation are considered. We also identify two diverging organisational approaches to decisions, including those about appropriate and inappropriate fundraising. We argue that these approaches cohere with contrasting ‘state’ and ‘charitable’ institutional logics, which in turn imply different attitudes to potential inequalities, and to relationships with local publics.

The Functions of Principle as the Basis of Court Decision in Hard Cases

The task of court is to produce just decisions. A court decision may be just if it coheres moral. Principle is praxis of moral. This article is to articulate that principle has significant meanings in court’s decisions. This is because principle is a moral standard that serves to be a reference for Court to settle hard cases equitably. In this writing, case approach is employed. In addition, it also uses comparative approach, in which court decisions of different countries are presented. The purpose of using comparative approach is to find similarities in referring to principle despite different jurisdictions and even different legal systems. From this study, it is found that principle may serve four functions to the court to reach equitable decisions. First, it may be a legal basis for the court to settle a case equitably in the absence of legal rule. In fact, not all human conducts are prescribed by law. It is frequently presumed that what is not prohibited is permitted to do. In this study, it is found that what is not forbidden is not necessarily permissible. The corner stone of determining whether or not it is permissible is principle. In this case, principle served to be legal basis directly applied by the court to avoid producing unjust judgment. Second, the principle has the derogatory function to supersede a statutory provision. In this case, applying such a provision may result in decision contrary to moral. This, certainly, contradicts the idea of the establishment of court of justice. It is justified, therefore, referring to the principle, the court supersedes such a statutory provision to bring about a just decision. Third, the principle serves to be a basis for the court to interpret obscure statutory provision governing the case. It is not unusual that statutory provision is obscure or ambiguous. Such a provision is hard to understand. Settling the case governed by such a provision appropriately, the court should interpret the provision sensibly.

The Myths of Textualism and Their Relevance To the ALI’s Restatement of the Law, Copyright

In 2015, Justice Elena Kagan famously proclaimed, “We’re all textualists now.” To which I ask, “When were we not?” Justice Kagan not only used the word “now,” but also provided her evidence that being a textualist is of recent vintage. She asserted that when she was at the Harvard Law School in 1983, the inquiry concerning a statute was “what should this statute be,” rather than what do “the words on the paper say.” And she attributed this inquiry to a “policy-oriented” approach with judges “pretending to be congressmen.” With respect, I cannot credit this evidence. I started my law school years thirty years earlier at Yale Law School, which reveled in its reputation for being concerned with “policy,” yet I never once heard a professor suggest that the text of a statute should be ignored in favor of a “policy” interpretation. “Policy” was thought relevant when a statutory provision was unclear, or, in nonstatutory cases, when existing case law provided no clear answer. Of course, even in a statutory case, the policy to be implemented was the policy preferred by Congress, not by judges. I take on the task of refuting Justice Kagan because I believe the “now” in her statement is only one of many myths about textualism, myths often perpetuated by some judges, legal scholars, and politicians, especially when they disagree with a court’s decision. Refuting these myths is particularly relevant to the current controversy within the American Law Institute concerning the effort to craft a Restatement of the Law, Copyright.

R (on the application of Evans) and another v Attorney General [2015] UKSC 21, Supreme Court

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Evans) and another v Attorney General [2015] UKSC 21, Supreme Court. This case concerns whether Parliament can have intended for a statutory provision to allow a member of the executive to overturn the decision of a court without good, clearly articulated reasons (Lord Mance), or contrary to constitutional principle (Lord Neuberger). The document also includes supporting commentary from author Thomas Webb.

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, House of Lords

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, House of Lords. This note deals with how the House of Lords interpreted an ouster clause, a statutory provision which seeks to prevent judicial supervision of decisions made by subordinate decision-making bodies, and considers the wider constitutional implications of the courts’ approach to ouster clauses. The document also includes supporting commentary from author Thomas Webb.

Is There a Need for Legislative Recognition of Rehabilitative Maintenance in South Africa? Lessons from Specified States of the United States of America

This paper traces the development of rehabilitative maintenance in South Africa. It illustrates that while there is no statutory provision dealing with rehabilitative maintenance in the country, courts are nonetheless, willing to make maintenance orders for limited periods. This paper shows that the criteria that courts use to grant this type of maintenance is not clear, making it difficult for legal practitioners to predict their clients’ cases. Courts have wide discretion when adjudicating rehabilitative maintenance disputes. They can order specific amount of maintenance to be paid to the maintenance seeking spouse for a particular period without outlining the basis for their decisions. While rehabilitative maintenance is relatively new in South Africa, it is nonetheless, well established and legislated in some of the States within the United States of America. This paper argues that rehabilitative maintenance should be legislated in South Africa in order to provide adequate guidance to the courts. Further, that failure to legislate rehabilitative maintenance would lead to inconsistent approaches being developed by the courts. In particular, it recommends the amendments of the Divorce Act in order to make provision for rehabilitative maintenance.

6 Formal Requirements and Other Possible Bars

This chapter considers more specific statutory and common law rules that may also seem to have the potential to deny, or at least affect, a claim based on proprietary estoppel. It therefore considers the effect of informality, incapacity, ultra vires, and illegality. The chapter focuses in particular on informality, as this is the area of most practical importance. In its interaction with rules as to formality, capacity, vires, or legality, proprietary estoppel is no different from any other legal doctrine: it will not be allowed to operate in such a way as to stultify or undermine the statutory or common law rule. The effect of a particular statutory provision on a proprietary estoppel claim will therefore depend on ‘the nature of the enactment, the purpose of the provision and the social policy behind it’; the same can be said for the impact of a non-statutory rule. The court will also have to consider the conduct of each of A and B and whether it would, overall, be ‘disproportionate’ to deny B’s claim. The precise nature of the claimed estoppel is therefore important.