DOCSLIB.ORG

The Unjustified Enrichment in Polish Code of Obligations of 1933

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Unjustified Enrichment in Polish Code of Obligations of 1933 T h e U n ju s t if ie d E n r ic h m e n t in P o l ish C o d e o f O b l ig a t io n s o f 19 3 3 d r J a n H a l b e r d a This paper is concerned with the law of restitution that was in force in Poland during the inter-war period. After 1918 Poland was divided into five legal regions (section 1.1). The state authorities nominated the Committee of Drafters whose task was to unify the law (1.2). In respect of unjustified enrichment the drafters took into account contemporary laws— Code Napoleon, ABGB, BGB, Obligationenrecht (1.3). After more than one decade the code of obligations (1933) finally went into force in 1934. The code provided for the premises (2.1) and the object of the action founded on unjustified enrichment (2.2). The code lacked however the regulation that might answer the question on this remedy’s nature, namely whether it was a subsidiary or an independent one (2.3). While the drafters took into account Austrian, French, German and Swiss civil codes, it seems that the Polish unjustified enrichment was more alike to German and Swiss laws (3). 1. INTRODUCTION 1. 1. DIVERSITY OF LEGAL SOURCES After World War I Poland recovered its independence. For more than one century the country was partitioned between three empires— German, Russian and Austro- Hungarian. In 1918, when Poland became sovereign, there existed five legal regions. In respect of civil law western Poland was ruled by German law with its Biirgerliches Gesetzbuch (1896). As BGB, in force since 1900, followed a pandectist structure, it included law of obligations in its second book (§§ 241-833). The central part of the country with its capital—Warsaw—was governed by mixture of French and Russian regulations. The law of obligations was set by the provisions of French Code Napoleon (1804). Since its introduction in the Duchy of Warsaw in 1808 this civil code was still in force. The subsequent amendments (1818, 1825) concerned the matrimonial and hypothecary laws. Thus the law of obligations remained untouched. As the code divided law into three segments: persons, property, acquisition of property, its third book concerned obligations. In the country’s eastern regions that today belong to independent Belarus and Ukraine, Russian law was binding. The law of obligations was underdeveloped. It found its regulation in Svod Zakonov (1832-1835). J an H \ lberd a Southern Poland, the region of Galicia, with Kraków and Lwów was governed by Austrian law, and in respect of private law - especially by Allgemeines Biirgerliches Gesetzbuch (1811). ABGB, likewise Code Napoleon, followed a threefold structure based on Roman “Institutiones”. The Austrian code divided itself into three books: persons, property, common provisions. The last one included regulations concerning obligations. The fifth region was the smallest one. In villages of Orava and Spis (located nearby Polish-Slovak border) Hungarian regulations were still in force. These were predominantly customary laws that were repealed in 1922 when binding force of ABGB had been extended hereto.1 Polish lawyers while performing their profession were observing respective laws in each of these regions. After World War I nothing has been changed as there still subsisted several legal regions. Hence, it is not a surprise that Poland was one of the first states that developed the separate statutes concerning the conflict of laws. On the same day in 1926 the parliament (Sejm) enacted the private international law act and private interregional law act. Nevertheless, the multitude of legal orders caused variety of problems that deeply influenced commerce, business and everyday life. These were among the many reasons why Polish stated authorities decided to unify the law. Poland was not the only state that after World War I had to face the issue of diversity of legal orders. The similar dilemma had arisen in several other states that became sovereign after the fall of the Austro-Hungarian Empire. In Czechoslovakia there existed two regions—Austrian ABGB was binding in Bohemia while in Slovakia customary Hungarian laws were still in force. In the new country of Yugoslavia there subsisted even six legal regions, though predominantly influenced by ABGB.2 1.2. DRAFTING OF THE CODE As early as in June 3, 1919, Sejm created the Committee of Drafters (Komisja Kodyfikacyjna). The number of forty four most prominent Polish lawyers, among them Ernest Till, Roman Longchamps de Berier and Fryderyk Zoll junior, became the members of this body. During two decades of its proceedings, the Committee has recast the Polish law. Among the statutes that were issued were the codes of both criminal (1928) and civil procedure (1930), the penal code (1932), the code of obligations (1933), the commercial code (1934). Also the aforementioned conflict of laws acts were prepared by the Committee. The drafters however did not succeed in preparing the ci­ vil code. Still it is worth mentioning that the civil law regulations enacted after World War II have been predominantly based on the drafts that had been developed during 1 Dziadzio, A.: Powszechna historia prawa. Warszawa, 2008, 255= Dziadzio; Płaza, S.: Historia prawa w Polsce na tle porównawczym. Część III. Okres międzywojenny, Kraków, 2001, 33-34= Płaza 2 Płaza 58-70 96 The Unjustified Enrichment in Polish Code of Obligations of 1933 the inter-war period by the Committee (matrimonial laws of 1945-1946, property law of 1946, common provisions of civil law of 1946).3 Drafting of the code of obligations took more than one decade. In 1923 professor Ernest Till from University of Lwów published in print his own draft of the gen­ eral part of law of obligations. In response to his effort two counter-drafts had been prepared by Warsaw attorneys— Ludwik Domański and Henryk Konic. After Ernest Tills death in 1926 professor Roman Longchamps de Berier (also from University of Lwów) took the leadership as the draftsman of the code. Ludwik Domański became the co-draftsman. Thereafter the Committee of Drafters created the subcommittee whose task was to work out the code of obligations. After four years the draft became the statute. Adopted on November 10, 1933, in the form of the Presidents regulation, the code of obligation went into force on July 1, 1934.4 Polish law-drafters in the twenties and the thirties have developed the methodology that is today applied by comparative law scholars. The reason for that was the existence of five legal regions in Poland. Even small legal offices in the countryside were expected to operate in diversity of rules that emerged from different states and cultures. Polish lawyers were accustomed therefore with Austrian, French, German and Russian regu­ lations. This knowledge was common. It was impossible to successfully perform legal duties if one was accustomed to the particular one legal system. During the attempts to make up the code of obligations’ draft, the Committee members took into account the aforementioned regulations that had been observed in Poland: Austrian ABGB, French Code Napoleon and German BGB. Additionally the drafters resorted to Swiss Obligationenrecht of 1911 and to the French-Italian draft of code of obligations of 1927. The scholars intended to benefit from experiences that had been gathered by others who performed codification efforts in the past. They wanted to avoid mistakes that had been committed by law-drafters under different legal systems. Several legal doctrines encompassed by the code of obligations bear the sign of this comparative methodology. The unjustified enrichment may be shown as its example. There existed features that derive from different legal doctrines? 1.3. THE CONTEMPORARY LAW OF UNJUSTIFIED ENRICHMENT If we take into account civil law regulations that were in force in Poland, it is worth noting that only German BGB provided for general provisions on unjustified enrich­ ment (§812). BGB was the newest among the codes observed in Poland. The regula­ tion of “Ungerechtfertigte Bereicherung” found its place in the second book (law of obligations), in §§ 812-822. These sections included also the passages on condictiones. 3 Dziadzio 255-259, 274-281; Płaza 35-45. 4 Płaza 157-159. Rozporządzenie Prezydenta RP z dnia 27 października 1933 r. - Kodeks zobowiązań (Dz.U.R.P. nr 82, poz. 598). 5 Płaza 157-161. 97 J an H a lberd a The comparable regulation existed in Swiss Obligationenrecht (art. 62-67) and French- Italian draft of code of obligations of 1927 (art. 73ff).6 On the contrary, French Code Napoleon provided only for some clauses on un­ due payment (art. 1235, art. 1376-1381). Hence, if solvens had paid money that was not due, he could sue his vis-a-vis— accipiens— for restitution. There was however no general principle that he, who has unjustly received a benefit at the expense of other party, is obliged to restore it. This was not the code but the courts and scholars that had developed the doctrine of unjustified enrichment (“enrichissement sans cause”, “enrichissement injuste”). The significant change took place in 1892 when Cour de Cassation adjudged the Boudiers case. Before that date the courts were reluctant to adjudicate if neither contract nor tort could be found in place. The doctrine of unjusti­ fied enrichment has been built as a result of the construction of independent legal institutions such as undue payment, negotiorum gestio or relations between an owner and a possessor.7 In the Austrian code (ABGB) there existed the general clause on restitution (“Nut- zliches verwendung”, meaning the beneficial occupation). However, the rights of a plaintiff were very limited.
Load more

Recommended publications
  • South East European Law Journal
    ISSN 857-89933 9 778578993000 UDC 32 (4-12) VOLUME 1 ∙ NUMBER 3 ∙ APRIL 2017 South East European Law Journal Volume 1 Number 3 April 2017 Publisher Technical Editor Centre for SEELS Centre for SEELS Bul. Goce Delcev, 9b 1000 Skopje Contact Editor in Chief Centre for SEELS Prof. Dr. Goran Koevski, Faculty of Law Bul. Goce Delcev 9B ”Iustinianus I”, Skopje 1000 Skopje Tel: ++389 2 31 25 177 Web: www.seelawschool.org Editorial Board E-mail: [email protected] Prof. Dr. Nada Dollani, Faculty of Law Tirana Prof. Dr. Petar Bačić, Faculty of Law Split Assist. Prof. Dr. Ivana Simonović, Faculty of Law Niš Assist. Prof. Dr. Tunjica Petrasević, Faculty of Law Osijek Assist. Prof. Dr. Svetislav Kostić, Faculty of Law Belgrade Assist. Prof. Dr. Romana Matanovac Vučković, Faculty of Law Zagreb Prof. Dr. Iza Razija Mešević Kordić, Faculty of Law Sarajevo Prof. Dr. Maja Čolaković, Faculty of Law Mostar Assist. Prof. Dr. Maša Alijević, Faculty of Law Zenica ISSN 857-89933 9 778578993000 Prof. Dr. Edita Čulinović Herc, Faculty of Law UDC 32 (4-12) Rijeka Prof. Dr. Vladimir Savkovic, Faculty of Law Podgorica Volume 1 Number 3 April 2017 Table of Contents INTRODUCTION by Editor in Chief ............ 3 INTELLECTUAL PROPERTY RIGHTS AS FOREIGN DIRECT INVESTMENTS IN THE TRANSITIONING COUNTRIES – THE MACEDONIAN EXAMPLE, Ana Pepeljugoska, Valentin Pepeljugoski………………………...5 PERCEPTION OF THE ICTY IN BOSNIA AND HERZEGOVINA - THE TRIBUNAL BETWEEN LAW AND POLITICS, Enis Omerović and Glorija Alić.................................................... 24 ALBANIAN CERTIFICATION OF SUCCESSION AND ITS APPROXIMATION TO EU REGULATION NO. 650/2012, Enkeleda Olldashi ......................................... 46 THE NEGOTIORUM GESTIO INSTITITUTE ACCORDINT TO ALBANIAN INTERNATIONAL PRIVATE LAW AND ROME II REGULATION, CONFLICT OF LAW RULE, Laura Vorpsi and XhonSkënderi ........................................
    [Show full text]
  • The Mistaken Improver--A Comparative Study, 19 Hastings L.J
    Hastings Law Journal Volume 19 | Issue 4 Article 4 1-1968 The iM staken Improver--A Comparative Study Robert C. Casad Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Robert C. Casad, The Mistaken Improver--A Comparative Study, 19 Hastings L.J. 1039 (1968). Available at: https://repository.uchastings.edu/hastings_law_journal/vol19/iss4/4 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. THE MISTAKEN IMPROVER-A COMPARATIVE STUDY By ROBERT C. CASAD* I. The American Approach THE case of the mistaken improver of another's real estate "has lain on the consciences of lawyers" for at least the 1800 years since the Roman jurist Julian declared the improver had no right of action against the owner." The source of the problem, of course, is the ancient maxim of accession, quicquid plantatur solo, solo cedit, the notion that what- ever is attached to the soil automatically becomes a part of the real property interest of the owner of the soil. American courts, under the rubric of the law of fixtures, have developed a host of special rules and exceptions to avoid the effect of this maxim in cases where its application would produce harsh results or would tend to subvert some important policy objective.2 But in the absence of such special rule or exception or some agreement or statute, when material that becomes attached to land has been supplied by someone other than the landowner, the one supplying it loses his personal property rights in that material, and according to the conventional common law view he cannot remove it and he usually does not gain any compen- sating rights in the real estate nor any personal claim against the 3 owner.
    [Show full text]
  • Extracontractual Obligations
    CHAPTER 48 Extracontractual Obligations OME codifications have stated as a general rule that S all obligations arising without contract are governed by the law of the place where the act creating the obli­ gation is done. 1 This rule is either trite or wrong. Our con­ flicts rule determines whether we recognize a foreign law as the origin of an obligation and the law so recognized decides what elements create the obligation. Nothing better is achieved by general rules placing "quasi contracts" under the law of the place where the obligating act is done.2 Quasi contract is not a useful term. From its range, three topics require a report on the actual state of the doctrine. I. VoLUNTARY AGENCY (NEGOTIORUM GESTIO ) 3 In the old doctrine of civil law derived from Roman and Byzantine sources, altruistic intervention in the interest of another person is considered as a praiseworthy activity, suitable to Christian readiness to help. English courts have 1 Italy: Disp. Pre!. C. C. (I942) art. 25 par. 2. Poland: Int. Priv. Law, art. II part. I; Draft I96I, rat. I8 § I. Rumania: C. C. (I940) art. 42. Treaty of Montevideo on Int. Civ. Law ( I889) art. 38. Contra, e.g., BEVILAQUA, Dir. Int. Priv. 372. 2 Former Belgian Congo: C. C. art. II par. 3· Spanish Morocco: Dahir of I914, art. 21. Tangier: Dahir of I925, art. r6 par. 2. C6digo Bustamante, art. 222. 3 Comparative municipal law, American and Roman laws: HEILMAN, "Rights of the Voluntary Agent Against His Principal in Roman Law and in Anglo-American Law," 4 Tenn.
    [Show full text]
  • The Similarity of Fundamental Doctrines of Law Which Underlies Their Conceptual Formulation in Different Legal Systems
    Hastings Law Journal Volume 18 | Issue 3 Article 2 1-1967 The leftC : The imiS larity of Fundamental Doctrines of Law which Underlies their Conceptual Formulation in Different Legal Systems Ralph A. Newman Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Ralph A. Newman, The Cleft: eTh Similarity of Fundamental Doctrines of Law which Underlies their Conceptual Formulation in Different Legal Systems, 18 Hastings L.J. 481 (1967). Available at: https://repository.uchastings.edu/hastings_law_journal/vol18/iss3/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. The Cleft: The Similarity of Fundamental Doctrines of Law which Underlies their Conceptual Formulation in Different Legal Systems By RALPH A. NEwMAN* The chapter of History that must soonest be rewritten is the chapter of the Assimilation and Harmonizationof World-Law.** CARDOZO, in his famous lectures on The Nature of the Judicial Process, refers to the presence in Anglo-American law of "certain large and fundamental concepts, which comparative jurisprudence shows to be common to other highly developed systems."1 Many of the fundamental concepts, of which Cardozo and others-Vico, 2 an Italian, Ehrlich,3 a German, Wiirzel,4 an Austrian, and Ripert,5 a Frenchman- have spoken, arise out of "standards of right conduct, which find expression in the mores of the community," 6 and which, as Del Vecchio has superbly said 7 measure the degree of the humanity of laws.
    [Show full text]
  • 2.3 Roman Law of Commerce and Finance 3
    UC Berkeley Latin American and Caribbean Law and Economics Association (ALACDE) Annual Papers Title The genius of Roman law from a law and economics perspective Permalink https://escholarship.org/uc/item/09c3b4j9 Author Granado, Juan Javier del Publication Date 2009-05-26 eScholarship.org Powered by the California Digital Library University of California THE GENIUS OF ROMAN LAW FROM A LAW AND ECONOMICS PERSPECTIVE By Juan Javier del Granado 1. What makes Roman law so admirable? 2. Asymmetric information and numerus clausus in Roman private law 2.1 Roman law of property 2.1.1 Clearly defined private domains 2.1.2 Private management of resources 2.2 Roman law of obligations 2.2.1 Private choices to co-operate 2.2.2 Private choices to co-operate without stipulating all eventualities 2.2.3 Private co-operation within extra-contractual relationships 2.2.4 Private co-operation between strangers 2.3 Roman law of commerce and finance 3. Private self-help in Roman law procedure 4. Roman legal scholarship in the restatement of civil law along the lines of law and economics 1. What makes Roman law so admirable? Law and economics aids us in understanding why Roman law is still worthy of admiration and emulation, what constitutes the “genius” of Roman law. For purposes of this paper, “Roman law” means the legal system of the Roman classical period, from about 300 B.C. to about 300 A.D. I will not attempt the tiresome job of being or trying to be a legal historian in this paper. In the manner of German pandect science, let us stipulate that I may arbitrarily choose certain parts of Roman law as being especially noteworthy to the design of an ideal private law system.
    [Show full text]
  • The International Journal of Law, Language & Discourse
    International Journal of Law, Language & Discourse Volume 3.1 2013 CONTENTS Susan Šarčević Multilingual Lawmaking and Legal (Un)Certainty in the European Union 1-29 Sol Azuelos-Atias The purposive method of legal interpretation in practice 30-54 Remus Titiriga The “Jurisprudence of Interests” (Interessenjurisprudenz) from Germany: History, Accomplishments, Evaluation 55-78 Jingyu Zhang and Qinglin Ma Reasonableness and “the Reasonable Person” in the Chinese Context 79-96 www.ijlld.com Volume 3.1 2013 ISSN 1839 8308 International Journal of Law, Language & Discourse CHIEF EDITOR LE CHENG International Journal of Law, Language & Discourse Volume 3.1 June 2013 Chief Editor Le Cheng The International Journal of Law, Language & Discourse is an affiliated journal of Multicultural Association of Law and Language. The International Journal of Law, Language & Discourse is a print of Academic Scholars Publishing House. The International Journal of Law, Language & Discourse is an interdisciplinary and cross-cultural peer-reviewed scholarly journal, integrating academic areas of law, linguistics, discourse analysis, psychology and sociology, presenting articles related to legal issues, review of cases, comments and opinions on legal cases and serving as a practical resource for lawyers, judges, legislators, applied linguists, discourse analysts and those academics who teach the future legal generations. For submission Chief Editor: Le Cheng ([email protected]) Editorial Manager: Jian Li ([email protected]) For subscription Publisher: [email protected] International Journal Law Language Discourse 11 Crozier Ave Daw Park 5041 South Australia Published by the International Journal of Law, Language & Discourse Press Academic Scholars Publishing House Australia, Hong Kong and UK http://www.ijlld.com © International Journal of Law, Language & Discourse (IJLLD) 2013 This book is in copyright.
    [Show full text]
  • Research on the Application of Flipped Classroom Teaching Mode in The
    2019 6th Asia-Pacific Conference on Social Sciences, Humanities (APSSH 2019) Legislation Comparison of Negotiorum Gestio System Nannan Chen The Oriental Institute of Shandong University of Finance and Economics, Shandong, China Keywords: Negotiorum gestio, Prevention from punishment, Administrative fact behavior, Necessity Abstract: As is known to all, the negotiorum gestio system originated from the Roman law and matured in the continental law countries (regions). However, in the Anglo-American legal system, it is a very fresh term. Although there is no concept of negotiorum gestio and related systems, it is not completely without a contract, or the Anglo-American law is nearly admitting that the negotiorum gestio system is more appropriate. Therefore, it is necessary to study the relevant regulations of the countries (regions) on the negotiorum gestio system, and to take the essence and discard the dregs. 1. Introduction As one of the main legal facts about the occurrence of debt, the relevant data shows that the earliest of negotiorum gestio system originated from Roman law, and then went through the development of history for thousands of years. Although this important legal system has experienced the baptism of the past thousand years, which should have been developed, its development is very limited. In the Anglo-American legal system, negotiorum gestio is a very fresh term, and there is no concept or management system. In the traditional civil law countries, it has not grown up based on its long history. For thousands of years, the system has not had a major breakthrough and development, even in a declining trend. For example, there are two simple clauses in our country's law on the negotiorum gestio.
    [Show full text]
  • The Application of the Institution of Negotiorum Gestio to the Confinement of the Mentally Ill Robert W
    Louisiana Law Review Volume 27 | Number 4 June 1967 The Application of the Institution of Negotiorum Gestio to the Confinement of the Mentally Ill Robert W. Collings Repository Citation Robert W. Collings, The Application of the Institution of Negotiorum Gestio to the Confinement of the Mentally Ill, 27 La. L. Rev. (1967) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol27/iss4/8 This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. NOTES THE APPLICATION OF THE INSTITUTION OF NEGOTIORUM GESTIO TO THE CONFINEMENT OF THE MENTALLY ILL On her physician's recommendation, plaintiff was confined in a private mental hospital for more than a year without her commitment or continuing consent. After obtaining her release through habeas corpus proceedings, she sued the hospital for false imprisonment.' The United States District Court for the Eastern District of Louisiana directed a verdict for the de- fendant. The Fifth Circuit Court of Appeals reversed, stating the jury could have found plaintiff's detention was false im- prisonment in Louisiana. Geddes v. Daughters of Charity of St. Vincent De Paul, 348 F.2d 144 (5th Cir. 1965). Since the Louisiana Civil Code makes no mention of false imprisonment, such actions must fall under article 2315; "every act whatever of man that causes damage to another obliges him '' by whose fault it happened to repair it.
    [Show full text]
  • Portugal Sandra Passinhas
    Portugal Sandra Passinhas Introduction According to Portuguese Law, a lease is a contract by virtue of which someone grants the use of a thing for a certain period of time in return for money. The general regime of lease (locatio) can be found in the Portuguese Civil Code of 1966 (hereinafter CC), Book II [Obligations], Title II [ Specific Contracts], Chap. IV [Lease], from Articles 1022 to 1063; and is structured according to the fundamental distinction between moveable and immovable property. The three specific regimes of tenancy are Rural Tenancy Regime provided by Decree Law 385/88, of 25.10; Forester Tenancy Regime provided by Decree Law 394/88, of 8.11; and Urban Tenancy Regime [Regime do Arrendamento Urbano], provided by Decree Law 321-B/90, of 15.10 (hereinafter RAU), amended by the Decrees-Law 278/93, of 10.08, 257/95 of 30.09, 64-A/2000 of 22.04, and 329-B/2000 of 22.12. The RAU is shaped in the following way: Chapter I – Urban Tenancy in General (Articles 1 – 73) Chapter II – Urban Tenancy for Residential Purposes (Articles 74-109) Chapter III – Urban Tenancy for Commercial and Industrial Purposes (Articles 110-120) Chapter IV – Urban Tenancy for Professional Purposes (Articles 121-122) Chapter V – Urban Tenancy for Others Purposes (Article 123) The legal regime underpinning the leasing of housing accommodation is provided for by the general rules on lease (Articles 1022/1063 CC), by the general provisions of RAU (Articles 1-73), and by specific provisions relating to residential contracts (Articles 74-109). The tenancy law regime, having adapted to continuous changes in social demands (e.g.
    [Show full text]
  • Some Critical Remarks on the Roman Law of Obligations 1
    SOME CRITICAL REMARKS ON THE ROMAN LAW OF OBLIGATIONS 1. — Everybody knows that classical Roman lawyers did not develop a systematic theory of what we call ‘contract’ today. Indeed, in modern European continental law, ‘contract’ is a general positive concept, which means the acknowledgement of a transaction between two or several persons, producing legal effects, the wideness of which can be various. From the Code Napoléon (art. 1101) to the German BGB (1st book, 3rd section), from the Swiss legislation (Civil Code, art. 7, referring to Obligations Code) down to the Italian Codice Civile of 1942 (art. 1321), everywhere the concept of contract is identified with a bilateral act. This act gives rise to an obligatory bond or any other legal one, or even to a bond on which may depend the settlement, the modification and the extinction of a juridical or at least of a patrimonial relation. Besides, this is a concept, which obtains also in the field of English law, although every concept elaborated by Anglo-American legal science always seems more closely connected with the ratio decidendi of a single judgement passed, according to the spirit of case-law jurisprudence. Freedom of agreement, then, is a rule both in English and in continental law. Roman law, on the contrary, recognizes only some individual types of contracts, so that contract in a general sense never means, of course, anything but an abstract conception. Moreover, by the name of contractus, classical jurists mean exclusively obligatory contracts, that is * This is the general outline of a lecture Ι have given (with a seminar) as a visiting professor both at the Hebrew University of Jerusalem and at the Law Faculty of Tel Aviv, being a guest of the Israeli Government, on April 19th and 26th 1977.
    [Show full text]
  • Non-Contractual Obligations in the Nordic Countries: a European’S Perspective
    Non-contractual Obligations in the Nordic Countries: a European’s Perspective Christian von Bar 1 Introduction ……….……….……….……….………....……….……. 32 2 Initial Observations ….……….……….……….…….………....……. 33 3 Theses ….……….……….……….…….…..…….……….…………... 34 4 An Independent Group of Countries within the European Tort Law ……………………………………... 35 4.1 A Glance at the rest of Europe ….……………….……….……... 36 4.2 The North ….……….……….……….………………………...... 38 4.3 Pure Economic Loss ….……….………...…….…….……….…. 39 5 Law of Management of Another’s Affairs and Unjustified Enrichment Law ….……….……….………...…………. 41 6 Insurance-based Solutions ……………………………..……………. 44 7 Justice in the Particular Case and Protection of the Weak and Vulnerable ….….….….….….….….….…………... 46 8 Denmark is Different ….……….……….……….…….……….…..... 47 9 Conclusion ….……….……….……….…….……….……...….……... 48 © Stockholm Institute for Scandianvian Law 1957-2010 32 Christian von Bar, Non-contractual Obligations in the Nordic Countries 1 Introduction 1. It is a considerable challenge to address a conference for which the organisers have chosen the general theme of “What is Scandinavian Law?”. As a foreigner one is almost bound to make a fool of oneself for want of sufficient detailed knowledge and as a European one is faced with the question whether one actually wants to address such a theme. After all, suppose every jurisdiction or group of jurisdictions, both great and small, were to organise similar events (“what is French / Polish / Slovakian / Estonian / Common law?”).1 What message would that send? Perhaps you too would ask yourself why the sharp demarcation at a time in which so many of us have at last entered into a collective dialogue on the development of a European private law. 2. The answer is by no means easy to identify, but I believe it must be this.
    [Show full text]
  • Anglo-Saxon Constitutional History
    Roman Law 10/19/2020 page 1 OBLIGATIONS IN GENERAL 1. The notion of obligation is never defined in the classical texts. But Paul, Inst. 2 (D.44.7.3pr) comes pretty close to a definition: The essence of obligations does not consist in that it makes some property (corpus) or servitude ours, but that it binds (obstringat) another person to give, do, or perform something for us. Paul has freed the notion from the actions but does not tell us what’s in his category. He goes on to illustrate the importance of intent: delivery of money alone does not give rise to mutuum there must be intent; it may be a gift. Saying the words of the stipulation is not sufficient; it may be a joke. 2. J.3.13 is justly famous and is his own: “An obligation is a legal bond, with which we are bound by necessity of performing some act according to the laws of our State.” For Justinian obligations are then divided: obligations – 13.1 | · | | civil pretorian That J. should still be making this distinction 400 years after the praetor had ceased to be an effective force in shaping Roman law is quite amazing. That he does not do anything with the distinction is not at all surprising. J. then proceeds to divide obligations into four groups, a division that will inform the rest of his treatment of the topic. obligations – 13.2 | · | | | | contract quasi-contract delict quasi-delict 3. Gaius 3.88 offers no definition but proceeds immediately to “Let us now proceed to obligations.
    [Show full text]