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The Fundamentals of Hungarian Private Law

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UNIVERSITY OF PÉCS FACULTY OF LAW AND POLITICAL SCIENCES Department of Private Law ____________________________________________________________________ THE FUNDAMENTALS OF HUNGARIAN PRIVATE LAW Edited by JÓZSEF BENKE THIS WORK WAS SUPPORTED BY PROJECT NO. EFOP-3.4.3-16-2016-00005 ISBN 978-963-429-484-9 (PDF) PÉCS 2020 2 SUMMARY TABLE OF CONTENTS BENKE, JÓZSEF: THE GENERAL PART OF HUNGARIAN PRIVATE LAW (HISTORICAL AND DOCTRINAL FOUNDATIONS) 1. A CONCISE HISTORY OF HUNGARIAN PRIVATE LAW AND JURISPRUDENCE 2. BASIC DOCTRINES OF HUNGARIAN PRIVATE LAW NOCHTA, TIBOR: FUNDAMENTALS OF THE LAW OF PERSONS 1. GENERAL RULES OF LEGAL PERSONS 2. THE RULES OF PARTICULAR LEGAL PERSONS BENKE, JÓZSEF: FUNDAMENTALS OF LAW OF RIGHTS IN REM 1. GENERAL PART 1.1. The Doctrine of Norms of the ‘Law of Rights In Rem’ 1.2. The Doctrine of In Rem Legal Relationships 2. SPECIAL PART 2.1. The Law of Possession 2.2. The Law of Ownership Rights 2.3. The Law of Limited Rights In Rem 2.4. The Law of Public Registers of Rights In Rem CHAPTERS FROM THE LAW OF OBLIGATIONS I. BENKE, JÓZSEF: Basic Issues of Obligation and Law of Obligations II. MOHAI, MÁTÉ: Settlement of the Obligation III. FABÓ, TIBOR: The Formation of contracts IV. BÉRCESI, ZOLTÁN—HARCI-KOVÁCS, KOLOS: Invalidity of the Contracts V. BENKE, JÓZSEF: Ineffectiveness of Contracts VI. MOHAI, MÁTÉ: Performance of the Contract VII. NOCHTA, TIBOR: Breach of Contract VIII. FABÓ, TIBOR: Confirmation of Contract IX. FABÓ, TIBOR: Contracts Transferring Ownership Rights X. NOCHTA, TIBOR: Contracts for Professional Services XI. FABÓ, TIBOR: Contracts of Carriage XII. BÉRCESI, ZOLTÁN—HARCI-KOVÁCS, KOLOS: Engagement-Type Contracts XIII. BENKE, JÓZSEF: Licensing Contracts XIV. MOHAI, MÁTÉ: Deposit Contracts XV. BENKE, JÓZSEF: Credit and Account Contracts XVI. BÉRCESI, ZOLTÁN: Guarantee Agreements XVII. NOCHTA, TIBOR: Insurance Contracts XVIII. BENKE, JÓZSEF: Contracts for Maintenance and Life-Annuity XIX. FABÓ, TIBOR: Civil Law Partnership XX. FABÓ, TIBOR: Civil Partnership XXI. NOCHTA, TIBOR: The Principles of Tort Law XXII. BENKE, JÓZSEF: The “Other” Facts Establishing Obligation FABÓ, TIBOR: FUNDAMENTALS OF LAW OF SUCCESSION 1. FUNDAMENTAL LEGAL DEFINITIONS 2. SUCCESSION BY TESTAMENTARY DISPOSITION 3. INTESTATE SUCCESSION 4. COMPULSORY SHARE OF INHERITANCE 5. LEGAL EFFECTS OF SUCCESSION BENKE, JÓZSEF: A SELECTED FOREIGN LANGUAGE BIBLIOGRAPHY ON HUNGARIAN PRIVATE LAW 3 BENKE, JÓZSEF THE GENERAL PART OF HUNGARIAN PRIVATE LAW (HISTORICAL AND DOCTRINAL FOUNDATIONS) C o n t e n t s : 1. A CONCISE HISTORY OF HUNGARIAN PRIVATE LAW AND JURISPRUDENCE 1.1. The History of Hungarian Private Law until its Codifications 1.2. The Process of Hungarian Private Law Codification 1.3. A Concise History of Hungarian Private Law Jurisprudence 2. BASIC DOCTRINES OF HUNGARIAN PRIVATE LAW 2.1. The Concept of ‘Private Law’ and ‘Civil Law’ 2.2. The Sources of Private Law 2.3. The Doctrine of Private Law Norms 2.4. The Theory of Private Law Jurisdiction and Norm Application 2.5. The Doctrine of Private Law Relationships 1. A CONCISE HISTORY OF HUNGARIAN PRIVATE LAW AND JURISPRUDENCE 1.1. The History of Hungarian Private Law until its Codifications Although the process of the Hungarian private law codification has a long duration and it was also rich quantitatively and qualitatively as well, the successful outcomes of this long lasting proceeding are represented by our former Civil Code of 1959 (this Hungarian Civil Code abbreviated as HCC or former or 1959 HCC) and our Civil Code in effect of 2013 (abbreviated as new HCC or NHCC or 2013 HCC). Many results of the codification attempts remained, namely, voluntary sources of law, since these were used in the judicial practice, albeit could not come into force legally. The first meaningful and comprehensive effort of Private Law codification in our country, which has a more than 1100 years old statehood, was the so-called Tripartitum opus juris consuetudinarii inclyti regni Hungariae often called simply as Tripartitum. This opus contained the systematised conglomerate mainly of the Hungarian nobility (or aristocratic) feudal customary private law. It was elaborated by István Werbőczy in 1514 under the reign of Vladislaus II of Hungary (1490–1516). The Tripartitum had got the royal assent but it had never been promulgated as law, therefore courts could only have been using it as a de facto source of law. The key significance of the Tripartitum was the fact that this was the main legal source, which had made Hungarian private law independent of the Roman and of the Canon Law for centuries. Some old institutions have survived the centuries and remained in effect also in the NHCC, such as e.g. the idea of the lineal succession (see Book 7 § 67 = Section 7:67). Then, the Corpus Juris Hungarici was the first complex unofficial body of laws, which incorporated all Hungarian laws from 1000 to 1696. The other meaningful legal source was the Planum Tabulare, which was accepted by the Sovereign Maria Theresa and the Full Court of the Curia (Supreme Court) in 1769. It comprehended the private law practice of Hungarian courts of higher instances. The next turning point in our history of private law codification was the Hungarian Revolution of 1848. The Act 15 of 1848 of the revolutionary legislation (‘April Laws’) envisaged a Civil Code, which can transform the feudal private law regime into its new order of the citoyen symbolizing the spirit of Equal(ity of) Rights and that of Free Property. This vision had remained a dream, which had come true only partially and in a very different ‘mood’ in the 20th century, i.e. the era of the communists… The fall of the Revolution (1849) meant also the declension of the Hungarian private law. The former legal regime had been broken down and the newer one had not yet been elaborated. This vacuum was 4 filled up or rather obtruded by the private law system of the oppressor State, so by that of Austria. The ABGB (Allgemeines Bürgerliches Gesetzbuch, i.e. General Civil Code] of the Austrians of 1811 had come into effect by the Emperor’s open command in 1852 and had remained in force until 1861. The Austrian Civil Code has opened the door for the influence of Roman and German Private Law Jurisprudence, i.e. the so-called ‘Pandektenrecht’. The door has remained unclosed until these days. The process of easement between the two countries, which concluded in the Austro-Hungarian Compromise of 1867 started in 1860. The Judge Royal (similar institution to the Lord Chief Justice of England) summoned an assembly of leading judges and jurists in 1861. The Session of the Judge Royal adopted the so-called Provisory Jurisdictional Regulations, a compendium of written customary laws elaborated for the support of the judicial praxis. The lacunas especially in the Hungarian contract law regime and the regime of law of rights in rem remained, however, so extensive, that its stand necessitated the use—now the voluntary use—of the Austrian Civil Code and that of the German Private Law Jurisprudence for such cases, which could not be decided upon the Hungarian laws. 1.2. The Process of Hungarian Private Law Codification Today in Hungary, there is a theoretically and even practically well-established and ‘up-to date’ civil code, which came into force in the Fifteenth of March, 2014. The law is called the Act V of 2013 on the Civil Code (thereinafter: New Hungarian Civil Code, abbreviated as NHCC or New HCC. The former Hungarian Civil Code (abbr. as FHCC or former HCC) was the Act IV of 1959 in effect from the First of May, 1960 until the Fourteenth of March, 2014. However, these two codes are the only laws in the long duration period of Hungarian private law codification process, which could come into effect. The reasons lay in historical and political circumstances not to be detailed here. We shall now turn to the outcomes of the century-long procedure of the Hungarian private law’s codification—in a ‘modern’ sense of codification. Our first thesis is that the codification of the Hungarian private law is preceded by that of the commercial law similarly to many other countries of the European Continent. Our first code in effect in the wider area of private law was, namely, the Act XXXVII of 1875 on the Commercial Code, which was based on its German predecessor, i.e. the Allgemeines Deutsches Handelsgesetzbuch (ADHGB otherwise as the General German Commercial Code of 1861). The Hungarian Commercial Code was then followed by the many unsuccessful codification attempts in the field of ‘pure’ private law. The process of codification had continuously been escorted by the huge efforts of the Justices of the Hungarian Royal Curia (Supreme Court). Their results were meaningful jurisdictionally and in the sense of the jurisprudence as well. The Justices could therefore give a great inspiration for the codification, too. Some private law institutions were born just in this very era (e.g. the liability for hazardous operations). The next turning point in the history of codification is the Bill of Hungary’s Private Law Code (abbreviated in Hungarian as ‘MTJ’) of 1928 drafted by Béla Szászy (1865–1931). The MTJ was preceded by the Drafts of the two official Bills of the Hungarian General Civil Code (1900, 1913) and some newer readings of the 1913 Draft. Albeit it had never come into effect as a law code, the MTJ had played a significant role as a written, codex-like canon for the jurisdiction, which, through the praxis of the courts, took then a part as the main source of the new Hungarian written customary private law. The scholars elaborating the draft of the code greatly respected the achievements of the Swiss and the German private law codification and jurisprudence, although in many questions they consciously rejected to follow them.
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    Session 4: Constitution, Fundamental Rights and Law of Enforcement 4.2. The Conflicts between the Fundamental Rights of the Creditor and the Debtor General Reporter Prof. Á lvaro PEREZ-RAGONE, University of Cologne, Germany and LL.M., Civil Procedure Department, Pontificia Universidad Católica de Valparaíso, Valparaíso, Chile National Reporters (* Speaker) National Report: Argentina - Prof. Eduardo OTEIZA, Derecho Procesal Universidad de la Plata, Argentina National Report: Australia - William VAN_CAENEGEM and Kim WEINERT. Bond University National Report: Brasil- Prof. Luiz Guilherme MARINONI*, Sérgio Cruz ARENHART AND Gustavo OSNA , Procedural Law Universidad Federal de Paraná, Curitiba, Brasil National Report: Chile- Prof. Maite AGUIRREZÁ BAL, University Los Andes and Macarena VARGAS, Profesor University Diego Portales, Chile National Report: China - Fu YULIN*. Peking University Law School, Cao ZHIXUN. Ph.D. Candidate, Peking University Law School and Han JINGRU. Ph.D. Candidate, Peking University Law School, China National Report: Colombia- Prof. Jairo PARRA QUIJANO, Universidad Externado de Colombia, Colombia National Report: Croatia- Alan UZELAC. Chair Civil Procedure Law, Zagreb University, Croatia National Report: England - Prof. Neil ANDREWS, Profesor University of Cambridge, England National Report: France - Prof. Emmanuel JEULAND, University Paris 1, La Soborne, France National Report: Philippines - Prof. Pedro José F. BERNARDO. Partner, Kelvin Chia Partnership Adjunct Professor of Law, Ateneo Law School, Philippines National Report: Finland - Prof. Laura ERVO*. Professor of procedural law, University of Ö rebro, Sweden. Docent (Adjunct Professor) in procedural law at the Finnish Universities of Turku, Helsinki and Eastern Finland National Report: Germany (two national Reports) - Prof. Christoph A. KERN, Private and Procedural Law University of Lausanne and University of Heidelberg and Nikolaj A.