Discuții preliminare despre regimul juridic al contractelor complexe

Author(s): Dorin Cimil / Language(s): Romanian Issue: 1/2016

The legal regime of complex contracts is applicable to other types of contractual statements until the moment of their legal consecration. The distinction between the legal framework of complex and mixed civil contracts is thus clear: the first ones contain different elements of contract, for which special rules or regulations concerning the contract which is the most analogous one can apply, while mixed contracts, which are also composed of different contractual elements, the law fixes a preset judicial framework and does not allow for special rules to govern their content.

Procedura concilierii directe după intrarea în vigoare a noului Cod de procedură civilă: între desuetudine şi necesitatea unei reglementări exprese

Author(s): Tiberiu-Vlad Patancius / Language(s): Romanian Issue: 1/2016

This material presents a thorough analysis of conciliation, by contending the actual necessity of its express and detailed regulation. To achieve this goal, we didn't review all the criticism deployed in the related specialty literature in our country, regarding the regulation of this institution under the Code of Civil Procedure, but we also sought, besides the history of its enactment in the national law's system, practical aspects of the requirement and benefits of the procedure's follow up and we drew up a comparative study of the regulation norms of this institution from other law systems.

ПРАВНИ ПОЛОЖАЈ ПРЕТХОДНОГ НАСЛЕДНИКА

Author(s): Dejan B. Đurđević / Language(s): Serbian Issue: 1/2011

Under Serbian law, preceding and subsequent inheritor occur when testator appoints a successor under condition or with time limit. Terse rules of the Serbian Law on Inheritance qualify a preceding inheritor as an usufructuary. This opens up at least two questions. Firstly, what is the nature of the preceding inheritor’s legal position? Does he have a usufruct of the estate, or a sort of time-limited property rights? Secondly, does he have a right to dispose of the estate? The author starts off with comparative analysis of a number of legislative, doctrinal and judicial outlooks on these issues, and concludes that preceding inheritor may only hold a position of proprietor, limited in time and content. He may not be qualified as an usufructuary. On the occasion of the testator’s death, the preceding inheritor succeeds to his estate. His property rights are time-limited and restricted in substance.

НЕДОУМИЦЕ У ВЕЗИ СА ЗАВЕШТАЊЕМ САЧИЊЕНИМ ПУТЕМ ВИДЕО ЗАПИСА

Author(s): Balša Kašćelan / Language(s): Serbian Issue: 1/2011

There is a lot of controversy considering the value of videotaped will, as one of the possible new forms of the last will. There is no doubt that it may always be useful to keep a video record as a proof of the will formation. On the other hand, it is possible to introduce the videotaped will as a separate form of a will. Regarding the latter, the author deems that it is too early to pass a new piece of legislation introducing videotaped will as a separate form of a will into Serbian law. However, the author is very much in favor of a wider use of videotaping of the will drafting procedure, but only as a supplement to the existing types of wills. This kind of proof of a will could contribute to the level of legal certainty, especially when it comes to allographic testaments. The legislator is free то decide whether there is a need for the use of video links and video recordings in drafting procedure or not. More importantly, the life and the case law may favor the use of video materials as a subsidiary mean of evidence on a wider scale. Such practice is nearly completely missing in Serbia at this moment.

ТРАДИЦИОНО СВОЈСТВО ТЗВ. СТВАРНОПРАВНИХ ХАРТИЈА ОД ВРЕДНОСТИ

Author(s): Mirjana Radović / Language(s): Serbian Issue: 1/2011

This paper studies the possibility to deliver goods by transferring documents of title that refer to those goods. The first part of the article analyses whether documents of title (such as bill of lading, warehouse receipt) can be categorized as negotiable instruments that embody personal property rights, since this is how they are being treated in the Serbian legal science. In this respect the author concludes that documents of title actually embody personal rights against the issuer, although their transfer can lead to disposition of personal property rights regarding goods thereby represented. The second part of the article deals with the notion and main characteristics of documents of title.

СТАРАТЕЉСТВО ЗА ПОСЕБНЕ СЛУЧАЈЕВЕ

Author(s): Uroš Novaković / Language(s): Serbian Issue: 2/2010

All forms of guardianship for special cases under Family Code of Serbia represent instances of temporary guardianship, aimed at provisional protection of the rights and interests of certain types of persons. In some cases, the authorities are obliged to appoint a temporary guardian for the ward. In other cases, the ward is entitled to appoint a temporary guardian for himself (voluntary guardianship). The main focus of thе article are mandatory forms of temporary guardianship. The author addresses the issue from both national and comparative angles, and examines the variety of temporary guardianships: collision guardianship as the central form of mandatory temporary guardianship, and the less frequent types, such as guardianship of property of unknown proprietors and guardianship over an absentee. The article also attends to the least frequent kinds of guardianship, such as voluntary guardianship and guardianship over a foreign citizen. The author looks at the ways in which temporary guardianship may cease to exist, and questions the purpose of voluntary guardianship. Finally, he calls attention to the importance of cooperation amongst the courts, administrative bodies and other state authorities, in the matters of guardianship for both regular and special cases.

КОРЕНИ ДЕЛИКАТА INIURIA И CONVICIUM

Author(s): Ognjen Vujović / Language(s): Serbian Issue: 2/2010

The early delict of iniuria represented a wrongful act, wrongfulness. It was the act which put in danger private interests of pater familias, who was the pillar of social establishment. The role of pater familias in Roman society started to gradually deteriorate. Nevertheless, the requirement of the endangered goods being in the sphere of pater familias’ private interests, remained crucial for determining the scope of the delict. On the other hand, black magic was considered a great threat to the society. It was differentiated from the delict of iniuria very early. The Law on XII Tables contains special provisions sanctioning the use of magic as a separate delict. Roman concepts of occentare, excantare and incantare were narrowly connected to the malicious fortune-telling and curses. Each of them represented a kind of verbal delict (insult), and had its place in the history of another delict, convicium. When Roman law started to loose its close relation to religion, the delict of insult was liberated from elements of magic, and moved to the sphere of protection of private interests of the individual.

УЛОГА НОТАРА У ГРАЂАНСКОМ ПРАВУ СЛОВЕНИЈЕ

Author(s): Vesna Rijavec / Language(s): Serbian Issue: 1/2010

The author offers a comprehensive overview of the role of Civil law notary, or Latin notary, in the Republic of Slovenia. The Civil-law notary is a legal adviser and a person of public confidence; a lawyer of private civil law, who is vested as public officer with the authentication power of the State, to draft, take, and record legal instruments for private parties and provide legal advice. The author examines the main two types of documents prepared by the notaries: certificates of facts and notarial deeds. In addition to being able to provide legal advice and prepare instruments with legal effect, the Latin notary may keep the archives and deposits of money and documents for the purposes of handing them to a third party, and represent a client in civil and administrative proceedings pertaining to the instruments he had prepared. Although it was introduced before fifteen years only, the author concludes that the Civil-law notary appears as a very useful institution in Slovenian legal system, and announces its further growth, particularly in inheritance law.

ПРОМЕНА ДУЖНИКА

Author(s): Marija Karanikić Mirić / Language(s): Serbian Issue: 1/2010

Substitution of a party to the obligation – either a debtor or a creditor – means that another person steps into the position of such party, but in a way that the obligation does not change its identity. In Serbian law, in legal relations inter vivos, the creditor may be changed by means of (1) transfer of a contract as a whole; (2) assignment of a claim (cession); and (3) personal subrogation (payment with subrogation), which may be either statutory or based on a contract. The change of the debtor may happen within a wider scheme of (1) transfer of a contract as a whole; and as (2) substitution of a debtor, based on a contract. A contract for substitution of the debtor which is concluded by the creditor and a third party represents an external substitution (la reprise de dette externe). On the other side, if such legal consequence derives from a contract concluded by the debtor and a third party, it should be called an internal substitution (la reprise de dette interne). Substitution of the debtor which completely terminates the obligation of an initial debtor and gives rise to the obligation of the third party, represents a translative (or perfect, or privative) substitution.

УВОЂЕЊЕ УГОВОРА О НАСЛЕЂИВАЊУ У СРПСКО ПРАВО

Author(s): Dejan B. Đurđević / Language(s): Serbian Issue: 2/2009

Inheritance contracts are prohibited under Serbian law, due to their alleged uselessness, rigidity, devious nature and propensity to make the probate proceedings overly complicated. However, it has been recently proposed by the Serbian Civil Code Drafting Commission to reconsider such prohibition. The main objective of this article is to examine the arguments for and against introduction of the inheritance contracts into Serbian law. The author starts off with the comparative analysis of German rules on inheritance contracts (Erbvertrag), seeing that German law sets out the most delicate provisions on this type of agreement as to future succession. The author examines situations in which it is justified to hold the testator obliged by his contractual dispositions in prospect of death (mortis causa), and disagrees with the claim that inheritance contracts are useless. Utility of the inheritance contracts was tacitly recognized by the legislator as early as 1955, with the legislative attempt to make up for the ban on inheritance contracts by fostering the rules on contracts for lifelong maintenance.

„ЉУБАВ НА ПРВИ ПОТПИС“ – О МОРАЛНОСТИ БРАЧНИХ УГОВОРА

Author(s): Nenad Tešić / Language(s): Serbian Issue: 2/2009

Under Serbian Civil Code (1844), prospective spouses and extramarital partners were permitted to agree on their actual and future property relations according to their needs. Serbian legislator re-introduced this possibility in 2005. The norms that regulate the proprietary consequences of marriage have thus become default rules that apply only if marital partners did not agree otherwise. This so-called renascence of marital (nuptial) agreements in Serbia raises the whole line of related legal and ethical issues: Why the couples decide to govern their property relations by the agreement? Does the possibility of the marital agreement induce the commercialization of the marriage? Do the marital agreements implant the seeds of discord in marriage, or do they jeopardize the gender equality? The author points out two possible approaches to the issue of validity of marital agreement. According to the first conception, marital agreement should be null and void by its sole nature. It is against public policy and moral, as it allegedly leads to commercialization of marriage, encourages divorce and destroys the equity of spouses (general nullity). According to the other opinion, not all marital agreements should be null and void (per se). Its potential nullity be judged from case to case.

DEVELOPMENT RISKS

Author(s): Marija Karanikić Mirić / Language(s): English Issue: 3/2006

Our Code of Obligations was the first regulation in Europe to name and establish producers’ strict liability for defective products as a separate institution. The solution endorsed in this Code consistently implements the theoretical concept of strict liability – a producer cannot be privileged from liability for damage caused by defective product by proving that the defect was undiscoverable while under producer’s control. On the other hand, the Directive on liability for defective products recommends to the EU member states to discharge from liability producers who prove that the defect was impossible to discover at the time when a product was placed into circulation, even with the implementation of the highest levels of scientific and technical knowledge. Does the nature of a producer’s liability change by assuming the question about what the producer could have known as legally relevant? What is the rationale of the rule suggested by the European legislator, which transfers the unforeseeable risk of damage from the producer to the damaged party? Are there convincing reasons for incorporating this rule in our law? Finally, which are the possible consequences of our adherence to the solution that differs from the one endorsed by the majority of European countries, in regard to liability for damage from undiscoverable defects?

CONTRACTUAL PENALTY CLAUSES IN RECENT SERBIAN ARBITRATION PRACTICE

Author(s): Dragor Hiber,Vladimir Pavićević / Language(s): English Issue: 3/2013

The focus of the paper is on the analysis of different approaches to situation when the parties are allowed to agree on sums payable in the event of breach of obligations, issues pertaining to contractual penalties in general as well as practical and doctrinal differences in their compensatory and penal goal. The authors reflect on some of the acute issues raised in recent arbitral practice with respect to the topic of contractual penalties, particularly in the sphere of privatization agreements. One of the problems analyzed relates to characterization of the secured obligations in privatizations, reductions of penalties as well as the issue of combining contractual penalties with bank guarantees and with the prohibition of restitution contained in the Law on Privatization of the Republic of Serbia.

АКТУЕЛНА РЕФОРМА НАСЛЕДНОГ ПРАВА У ЦРНОЈ ГОРИ

Author(s): Dejan B. Đurđević / Language(s): Serbian Issue: 1/2009

The long process of inheritance law reform in the Republic of Montenegro was rounded off by the end of year 2008, with the enactment of the new Law on Inheritance. The author presents basic principles of the newly reformed Montenegrin law of inheritance, and calls attention to the flawed drafting which has resulted in vagueness of the Law and its internal inconsistencies. The author especially criticizes those legal institutions that are prone to facilitate circumvention of the constitutional principle of gender equality, and to deprive female heirs of their succession rights. First of all, the author disapproves of the rule under which the title is prevented from passing to the next intestate successor when the heir refuses to keep the inheritance. This means that disclaimer or denunciation of the inheritance bars the succession to the next intestate successor. Secondly, the author draws attention to the arguments against the inheritance waiver contract (the renunciation of inheritance rights contract, Erbverzichtsvertrag).

CIVIL LAW AND BUSINESS JUDGMENT RULE

Author(s): Mirko Vasiljević / Language(s): Serbian Issue: 3/2012

The author analyzes the relationship between traditional civil law notions of “care of prudent business person” and “care of prudent expert”, “good faith and fairness” and a new “business judgment rule” concept of company law. Although legal tradition standardizes the meanings of these civil law notions, important for legal certainty, the author suggests that all attempts at their substitution or fitting into the concept of business judgment rule, originating from the legal culture of common law, have basically failed. The reasons are manifold: first, differences in legal traditions; second, the routine of courts and business of following the usual principles of legal thinking and practice; third, legal transplants were not made by replacing one concept with another rather by fitting one into another and combining their rules which has proved wrong. The author concludes, after the analysis of all constitutive elements of the new concept of company law – “the business judgment rule”, that the civil law notion of “care of prudent business person” or “care of prudent expert” remain the backbone of this new concept and that all other elements thereof may, through careful analysis be reduced to these notions. In itself, it ruins the credibility of the concept of “business judgment rule” and supports the authority of traditional “due care” notion of civil law.

IUS COMMUNE AND CROATIAN PROPERTY LAW

Author(s): Marko Petrak / Language(s): English Issue: 3/2010

The purpose of paper is to analyze the significance of the ius commune in the contemporary Croatian property law system and the potential role of its rules in the Europeanization of national property law. The first part of the paper will prima facie comment on the use of ius commune rules as an indirect source of property law, particularly in the Croatian judicial practice. Subsequently, the paper explores the possibility of treating the ius commune rules as a direct source of property law in the contemporary Croatian legal system. Author concludes thet ius commune rules, according to the provisions of the Law on the Application of Legal Rules passed before April 6, 1941 (Zakon o načinu primjene pravnih propisa donesenih prije 6. travnja 1941. godine), can have the status of a source of contemporary Croatian property law. Their application is possible, as it was seen, primarily owing to the fact that ius commune was in force on 6 April 1941 as a subsidiary law on the territory of Croatia in the areas belonging to the former Hungarian legal area. The final part of the paper especially questions can a more intense application of those ius commune rules that contain principles of property law common to almost all European legal systems contribute to a further Europeanization of the contemporary national property law.

Reflecţii asupra unor instituţii juridice de graniţă, ce prezintă incidenţă şi în materie succesorală.

Author(s): Ilioara Genoiu,Bogdan Pătrașcu / Language(s): Romanian Issue: 2/2017

The present work contains some general reflections regarding the structure and content of the Romanian Civil Code, which is an important legislative work, with a particular dimension and significance, which was nonetheless adopted with a rapidity partially not justified; it also analyses a couple of aspects of the legal regime of some private law institutions, considered to be “boundary” ones, because although they are analysed within certain educational subjects they also have implications upon others, particularly the succession law. There are many institutions of the private law which evince this “multiple vocation”, but out of these the present work will discuss only the capacity of use of natural and physical persons, the medically assisted human reproduction with a third donor, the disappearance and the court sentence on the death of a natural person and the residence of the individual law subject.

Principiul irevocabilităţii donaţiilor.

Author(s): Victor Marcusohn / Language(s): Romanian Issue: 2/2017

Generally speaking, any valid contract is an irrevocable one, meaning it cannot be revoked by the unilaterally will of one party, but only by simultaneous will from both parties. Besides this general irrevocability, the donation contract provides also a special irrevocability, derived from its nature as liberality. The principle of irrevocability, specific to the donation, aims at ensuring the protection of all legitimate interests of the donor, at guaranteeing the property right of the grantee regarding the donated good as well as at consolidating the safety of the civil circuit by protecting the interests of third parties which have legal relations with the grantee. Even tough a donation is generally irrevocable, there are certain situations, established by law, in which a donation can be revoked: revocation for ingratitude and revocation for failure to perform the assignment.

Prof.dr. Marilena Uliescu (coordonator). Noul Cod civil. Studii și comentarii. (Volumul IV). Sinteza propunerilor de modificare şi completare a noului Cod civil, Editura Universul Juridic, București, 2016, 771 p.

Author(s): Mona-Maria Pivniceru / Language(s): Romanian Issue: 2/2017

ЧИЊЕНИЧНО И ПРАВНО ПИТАЊЕ У РЕВИЗИЈИ

Author(s): Nikola Bodiroga / Language(s): Serbian Issue: 1/2005

Distinuguishing between the questions of facts and questions of law prevails in the procedure initiated by motion for revision. This is a traditional standpoint. Separation of these two kinds of questions has a crucial importance in determination of tasks of this legal remedy. Since the revision is limited on the control of regular application of substantive law norms, the competent court takes into consideration the state of facts, determined by the court of appeal, in the moment of conclusion of court hearing.