The Common Law and the Canon of Lekë Dukagjini

Author(s): Berat Aqifi,Ardian Emini,Xhemshit Shala / Language(s): English Issue: 1/2019

This paper contains a summary, chronology and analysis of a specific process that Albania has in general, as it is the specificity of blood feud, which is one of the typical and very current problems of the Albanian people. The implication of the second parties and the third parties on these developments in reconciliation of the lynx and the effect of the Canon of Lekë Dukagjini and other socio cultural implications for overcoming the inter human conflicts that find support at customary law, at the same time it is considered as an act to settle down the disputes, a legal and institutional component for the replacement of the courts. Special emphasis is placed on the Canon that Albanian law is an Albanian institution, institutional history, but also a “formulated idea”. It is the mind and spirit of the Albanians, conceived for centuries in the oral tradition, preserved, protected with fanaticism and transmitted as a message, to be understood, disaggregated and absorbed in the way it was formulated and transmitted, without being changed in form and content. The Canons are the product of an ancestral society, when Canon law was the only right to regulate life. Life becomes fierce not only in the sense of confronting nature, but also of people with each other, which is characterized by a constant competition, which one alone can not withstand. One of the challenges that Albanian society and state faces in this decade is the phenomenon of blood feud and revenge, a habit inherited from the ancient past, incompatible with the principles of civilized society and the rule of law.

Le Testament d’Abraham et sa présence dans un convoi juridique et antihérétique (BAR Mss. sl. 636) I. Le texte, son origine et ses versions.

Author(s): Ivan Bilyarski / Language(s): French Issue: 3-4/2018

The article is devoted to an Old Testament apocrypha – the Testament of Abraham – and its presence, its importance and its functions in the convoy of a predominantly legal and polemical antiheretical collection compiled in the Principality of Moldova in the 16th century (BAR, Ms. Sl. 636). The first part of the article presents a deuterocanonical text, its variants, its history and the language in which it was created, and the environment in which it arose. Particular attention is paid to the translations of THE TESTAMENT OF ABRAHAM. Of course, the emphasis is on the Slavonic-language tradition of the text as well as on its convoy in the manuscripts through which we know it. Finally, the original Slavic text is published, with an interpretation of the individual chapters in relation to the Greek prototype of the work.

Le Testament d’Abraham et sa présence dans un convoy juridique et antihérétique (BAR Mss. sl. 636)

Author(s): Ivan Biliarsky / Language(s): French Issue: 1-2/2019

The article is devoted to an Old Testament apocryphon – the Testament of Abraham – and its presence, its importance and its functions in the convoy of predominantly juridical and polemical anti-heretical collection compiled in the Principality of Moldova in the 16th century. The second part of the article proposes an interpretation of the text and its importance mainly in the legal context of the copy (BAR, Ms. sl. 636). What can be the meaning and function of a deuterocanonical text in a predominantly juridical collection? The study of the manuscript itself leads us to the conclusion that the separate elements (legal, polemical, historical, dogmatic, apocryphal) that make up the collection are subject to its general purpose. As for the apocrypha, they can be said to present some biblical point of view. In particular, the Testament of Abraham illustrates the idea of justice and the relationship between human and Divine justice. Human justice serves earthly purposes, and always, even the most just one, implies the idea of punishment, while Divine justice is based on mercy and seeks the salvation of the human soul.

REFLECTIONS ON THE RELATIONSHIP BETWEEN IUS PUBLICUM AND IUS PRIVATUM IN ROMAN LAW

Author(s): Gábor Hamza / Language(s): English Issue: 2/2019

The author emphasizes the contemporary significance of Roman law traditions. He points out that the idea of classification (divisio) of the Roman legal system originated in ancient Greek philosophical thinking. He also emphasizes that the classification or partition of ius civile is in no way related to the present-day classification of the legal order (system) into various ‘branches’ of law, particularly in civil law jurisdictions. Referring to a number of examples, the author proves that Roman law did not recognize a separation between public and private law as it is recognized today in many jurisdictions. He points out, in compliance with the thoughts of Azo, the ‘danger’ of this separation. The division is hardly able to provide any contribution to an adequate interpretation and development of law, since it evokes the possibility of the disintegration of the legal system.

RES PUBLICA - RES PRIVATA ET LEURS TRANSFORMATIONS – L’EXEMPLE DE L’EMPHYTEOSE EN DROIT ROMAIN

Author(s): Malina Novkirishka- Stoyanova / Language(s): French Issue: 2/2019

In the modern legislation and in the jurisprudence, we don’t find an insurmountable limit between public and private property, which gives the possibility of the various transformations for the public interest compatible with the private interest. During the centuries there are two opposite directions in this sense: expropriation and confiscation of private property and privatization or private use of public goods. The origins of modern practices and institutions in these two sectors are found in Roman law, which establishes the basic principles and presents a vast series of cases and rules that can also be useful for contemporary jurisprudence. From this perspective, the example of Roman emphytosis is presented as a regulation of concessions and agricultural leases adapted to the public interest as well as to the private interest.

The Confiscation and Repossession of Monastic Properties in Mount Athos and Patmos Monasteries, 1568-1570

Author(s): Eugenia Kermeli / Language(s): English Issue: 3-4/2000

ГРЕШКАТА В РИМСКОТО ПРАВО СПОРЕД ФИЛИП ЛОТМАР И ИЗГУБЕНОТО МУ НАСЛЕДСТВО В ШВЕЙЦАРСКОТО ПРАВО

Author(s): Iole Fargnoli / Language(s): Bulgarian Issue: 2/2020

With comprehensive research on the error in all areas of law, Philipp Lotmar (1850-1922) aimed at solving the eternal question of the definition and effects of errors on the basis of the Roman sources, in particular to what extent the contract is binding in the event of a error – until today one of the core questions of private law. His work could have influenced the revision of the law of errors until 1911 in Switzerland in some aspects, if the publication of his work had taken place in time. He offered other solutions to the issue of dissent and error about the future. Lotmar would certainly have welcomed the most famous provision of Swiss law on errors, Art. 24 para. 4 CO, through which the external error can also become considerable.

HISTORICAL – JURIDICAL KEYS ON THE ORIGIN OF THE CONCEPT OF ABUSE OF RIGHT

Author(s): Carmen Salcedo / Language(s): Bulgarian Issue: 2/2020

The non-existence in Roman Law of jurisprudential theories, specific terminology or legal provisions prohibiting the abuse of rihgt does not prevent us from affirming that surely, based on the general interest of peaceful coexistence and by application of principles of justice, good faith and equity, there were specific actions prohibited in defense of the concurrent rights of others that would lay the foundations on which the current doctrinal and normative conceptions regarding the theorizing and regulation of the abuse of rihgt are based.

TESTAMENTARY FREEDOM AND THE 'GUALDENSE' OR SOCINI MEASURE OF CAUTION. BACKGROUND AND HISTORICAL DEVELOPMENT

Author(s): Maria del Pilar Perez Alvarez / Language(s): English Issue: 2/2020

Our study focuses on the measure known as the Socini caution, its background in Roman Law and its subsequent formulation and development until its codification, some records of its reception remaining in current Spanish Common Law. The Socini measure of caution consists in the testamentary provision granting the inheritor of the legitime, or 'forced heir', the choice between accepting the testator's disposition, leaving more than the lawful share of an inheritance but subjecting it to an encumbrance, or receiving only the strict 'portio legitima' and renouncing the excess. This precise concept of the caution is examined herein. This figure is on the borderline between testamentary freedom and respect for the 'portio legitima', or what is known as ‘the qualitative intangibility of the legitime’, which is tantamount to a restriction on testamentary freedom. Therefore, before analysing these testamentary cautions I shall briefly refer to the historical background and development of the legitime and its legal nature, in order to set the context for this study.

ИЗРАЗИТЕ „RES PERIT DEBITORI“, „RES PERIT CREDITORI“ И „RES PERIT DOMINO“

Author(s): Patrick Wery / Language(s): Bulgarian Issue: 2/2020

Many Latin expressions and maxims are used in the legal literature dedicated to the Law of Obligations. But these expressions could not be always perceived literally and without any reserves. Some of these sentences are given a meaning far different from their literal interpretation. Others are redundant and do not add anything to what the legislation already provides. In its judgment of 5 May 1981 the Belgian Court of Cassation declared that 'the Latin maxim does not in itself constitute a general principle of law'. The article examines the Latin maxims "Res perit debitori", "Res perit creditori" and "Res perit domino", which the doctrine uses as principles to explain the theory of risk, which makes a difference between the contracts that transfer property on the one hand and those which do not fullfill such a transfer, as well as between the consequences of force majeure for the obligations of the debtor and between the contract itself.

ВАРИАЦИИ ВЪРХУ "PACTA SUNT SERVАNDA". ОКОЛО И ИЗВЪН ФРЕНСКИЯ ГРАЖДАНСКИ КОДЕКС

Author(s): Pierre Jadoul / Language(s): Bulgarian Issue: 2/2020

Over the time, the experts spared no praise and competed for compliments to describe the French Civil Code entered into force on March 21st 1804. Nevertheless, on the bicentennial anniversary of this code the famous French lawyer Robert Badinter noted: „The most remarkable about the Civil Code today is its longevity rather than its content.” The article provides a brief overview of the process of creating of the French Civil Code, the preparatory actions and discussions, as well as their modern re-evaluation, mainly in connection with the general theory of the obligations and the principle of "Pacta sunt servаnda".

DOLUS O CULPAE CAPAX. LA CAPACITÀ DI DELINQUERE DELL’IMPUBERE TRA CONTINUITÀ E DISCONTINUITÀ

Author(s): Mariateresa Carbone / Language(s): Italian Issue: 2/2020

The impubes’s delict laibility, in the classic period, is subordinated to being doli or culpae capax; two decemviral provisions, instead, established a less severe sanction respect to pubes in case of impubes’s criminal behavior regardless from assessment about his actual ability to commit crime. Some textual clues allow us to speculate the historical happening that determined this evolution whose goal stands as a fondament of our current regulations, where is expected also an age range characterized from absolute presuption not-imputability and a next one (that a recent proposal of law would tend to turn down, bringing it closer to the ages of pubertati proximi) where the imputability depends on the ability understanding and wanting of the subject.

FROM FAS TO IUS AND THEIR ROLE IN TRADITIO IURIS ROMANI

Author(s): Cristina Pop / Language(s): English Issue: 2/2020

Among the numerous law systems known in history, the only one capable to develop a well-defined legal terminology, distinct in relation to the average, ordinary language, was the Roman law one. Even though in the ancient comprehension of the Quirites the laws would take a religious garb from both the point of view of their linguistic expression and from the point of view of their meaning, it was for the first time in history that the Romans created a unity of notions, able to transpose in a juridical language society's major interests. It was a fact also due to the general evolution from the antique fas to the exhaustive ius.

КОРПОРАТИВНА ОТГОВОРНОСТ. ПОЛСКОТО ЧАСТНО ПРАВО И ЗАПАДНАТА ПРАВНА ТРАДИЦИЯ

Author(s): Grzegorz Blicharz / Language(s): Bulgarian Issue: 2/2020

The Polish legislator has extended the strict liability of entrepreneurs to in-clude cases of damages and injuries caused by conducting special business activity. It was justified by the principle cuius commodum eius periculum, cuius commodum eius damnum which was also invoked in the jurisprudence of the Polish Supreme Court. This principle, together with the similar principle of ubi emolumentum ibi onus, shows that strict liability is grounded in the principle of economic utility. Historical research, however, has shown that neither of these two justifications originates in Roman law. Although the prin-ciples are taken from Roman legal sources, they were used by Roman jurists in different contexts: in contractual obligations and in the law of succession, where they have their roots. The ancients also applied strict liability to certain types of entrepreneurs, yet with a different ratio: to limit the abuse of customer trust. The development of law shows that after centuries of the prevailing idea of fault liability, legislators are nowadays returning to strict liability in the case of entrepreneurs with a different kind of justification, recalling the fact that all types of liability were already present in Roman law.

RECEPTION OF ROMAN LAW IN THE FIELD OF REGULAE IURIS

Author(s): María Etelvina De las Casas León / Language(s): English Issue: 2/2020

The Roman tradition begins with the studies of Bologna and continues until the present day. We understand that the reception of Roman Law in Europe is based on the Bologna School. In this work we will make a brief approach to the regulae iuris, many of them converted into general principles of law, through the reception of the same in our legal systems. These maxims contain a historical background that makes them guides and values that inform our legal systems: legal bases, criteria of interpretation or sources of law. No code completely broke with the Roman tradition.

ПРИВИЛЕГИИ ЗА ВЕТЕРАНИТЕ ОТ ВОЙСКАТА В ИМПЕРАТОРСКАТА КОНСТИТУЦИЯ НА ЛИЦИНИЙ ОТ 10 ЮНИ 311 Г. И СЪВРЕМЕННОТО АДМИНИСТРАТИВНО ПРАВО

Author(s): Raina Nikolova / Language(s): Bulgarian Issue: 2/2020

The article reveals part of the content of Licinius' imperial constitution of June 10, 311. It discusses the administrative status of professional soldiers as a special category of civil servants. It also analyses the administrative status of war veterans in accordance with the current Bulgarian legislation and the Roman traditions, enshrined in it.

РИМСКАТА ПРАВНА МИСЪЛ И ЕВРОПЕЙСКИТЕ ТРАДИЦИИ В „ПРИНЦИПИ НА РИМСКОТО ПРАВО“ НА ФРИЦ ШУЛЦ

Author(s): Fara Nasti / Language(s): Bulgarian Issue: 2/2020

In 1934, in Munich, Duncker und Humblot published the „Prinzipien des römischen Rechts. Vorlesungen“ by Fritz Schulz. A work of great importance in which Schulz collected the eleven lectures given in Berlin: the only ones he gave there before his exile. It must be considered in the context of legal historiography from 1920–1960 in the context of its scientific production. The content and ideas in „Prinzipien“ must not be forgotten. The book was written in difficult times in Germany before World War II and has strong political significance. This explains some of the author's choices in his attempt to consolidate the universal value of law based on the Roman legal tradition.

ПРОВЕРКА ЗА ПЛАГИАТСТВО ПО ЗАКОНА ЗА РАЗВИТИЕ НА АКАДЕМИЧНИЯ СЪСТАВ ИЛИ ДОКАЗВАНЕ НА ПРЕСТЪПЛЕНИЕТО „ПЛАГИАТСТВО” ПО НАКАЗАТЕЛНИЯ КОДЕКС – ДОПУСТИМА ЛИ Е АЛТЕРНАТИВА ПО БЪЛГАРСКОТО ЗАКОНОДАТЕЛСТВО?

Author(s): Veselina Maneva / Language(s): Bulgarian Issue: 2/2020

The legal framework of plagiarism as a crime, finds its systematic place in Roman law. In the objective Bulgarian law, it is regulated by the first Penal Code in 1896. The current legal framework creates ambiguity regarding the application of the administrative provisions of the Academic Staff Development Act and the Penal Code. The article analyzes the provisions of the two normative acts, as well as the canceled Law on Scientific Degrees and Scientific Titles. The relevant procedures, the competence of the bodies and the consequences of the issued acts are considered. The conclusions justifiably raise the question: is this alternative acceptable?

THE COMMON GOODS ADDRESSED TO THE COMMUNITY USE WITHIN THE FRAMEWORK OF THE COMMUNITY ADMINISTRATION OF THE LATIN-SABINE ROMAN REGNUM (753 BC – 617 BC)

Author(s): Diego Diez Palacios / Language(s): English Issue: 2/2020

The reality of what modern states know as public property is present in the historical, urban and state period of the latin-sabine regnum. In it, the material arrangement of these realities will possess certain elements that are configured as a fundamental end that enhances the birth of a new, in part, legal way of acting on the also novel figure where the relationship between community and common thing manifests determining features that they become the antecedent of the sanctioned legal regime of the res publicae who will have to wait until the 4th century BC to see the light showing itself in the legal systems of numerous European and Latin American countries as the foundation of their public goods for public use.

Assessment of the transparency of the functioning of the Church Fund in Poland in terms of granting it

Author(s): Łukasz Bernaciński / Language(s): English Issue: 34 (2)/2021

This paper attempts to assess the transparency of the Church Fund’s operations in the area of awarding grants for the maintenance and renovation of historic sacred buildings and for supporting socially useful ecclesiastical activities. For this purpose, the author has outlined the procedure for awarding grants from the Church Fund by the Minister of the Interior and Administration. The author has also presented the practice of secretly increasing the budget of the Church Fund during the financial year, as observed in recent years, and the problem of not publishing decisions on awarding grants insofar as they concerned the distribution of funds from the said increase in the Fund’s budget. Basic measures have been proposed to potentially contribute to increasing the transparency of the granting procedure and to build citizens’ trust in the State. The area related to the financing of the Church Fund should be considered as non-transparent. On the other hand, the transparency of the grant award procedure is given credit for it is transparent, albeit apparently quite complicated, and is communicated to applicants in a comprehensible manner. When presenting the said procedure and assessing the functioning of the Church Fund in this respect, the author analyses and interprets the current provisions of the constitutional, statutory and sub-statutory rank laws in force applicable to the subject matter. Incidentally, elements of the historical overview of applicable laws are also used.