Austrian Civil Code Research Articles

History of the development of the institute of law abuse in the states of the romano-german legal family

The article provides a historical analysis of the institution of abuse of law in the states of the Romano- Germanic legal family. In particular, with the help of a set of philosophical-worldview, general scientific, special scientific methods (primarily, dialectical, historical-legal and comparative-legal) and principles of scientific knowledge, the evolution of theoretical ideas about the abuse of law, their consolidation in legislation and practical implementation in individual states of the Romano-Germanic legal family (Germany, Austria, Switzerland, Spain, France). It is argued that modern ideas about the abuse of law are based on the provisions of Roman law. Theoretical approaches to the abuse of law contained in the works of leading European legal scholars (A. Binder, T. Geise, W. Erman, L. Dugis, W. Siebert, V. Roberto and others) were analyzed. On the basis of a comparative analysis of normative legal acts regulating the issue of abuse of law (German Civil Code, Austrian Civil Code, Civil Codes of Switzerland, Spain and France), characteristic features and general trends of the legal establishment of the category “abuse of law” in the states of the Romano- Germanic legal system have been revealed family. It was established that theoretical approaches to understanding the category of “law abuse” were most actively developed by scientists in Germany and France. In particular, general approaches to the essence and features of the abuse of the right have been developed, mechanisms for counteracting the harmful exercise of the right, etc. have been proposed. At the same time, the legislation of Germany, Austria, Switzerland, Spain and France also uses the experience of other countries, transforming it through their own culture and traditions. This is due to certain features of the legislative establishment of the inadmissibility of the abuse of the right. It was concluded that due to the existence in the states of the Romano-Germanic legal family of a general ban on the abuse of law, legal science had the opportunity to investigate not only specific cases of unfair exercise of the law, but also the phenomenon of abuse of law in general.

Neporočene matere med normami in prakso

In the Habsburg Monarchy, the civil rights of illegitimate mothers and children were primarily regulated by the Austrian Civil Code of 1811. Under this code, illegitimate children did not enjoy the same rights as legitimate ones. Nevertheless, the illegitimate father was obligated to provide for them. The extent to which this progressive principle in Austrian law was practically implemented remains uncertain. This study investigates the frequency with which illegitimate mothers pursued legal recourse when fathers refused financial responsibility for their children. Additionally, it examines how often these mothers successfully obtained paternity recognition. The paper addresses these inquiries by analysing one hundred preserved custody court files from the District Courts in Rakek, Lož, and Cerknica between 1899 and 1945, alongside other relevant civil law documents.

Prescription of the Decedent’s Debts, Dating From the Time of Old Austrian Civil Code From 1811 (ABGB) in Slovenia and Croatia

The establishment of the first Yugoslav state in 1918 was, from a legal point of view, the merger of six quite different legal traditions into one common state formation, and did not bring with it immediate legal unification, which was most evident in the field of civil law. Austrian Civil Code (ABGB) of 1811, as an interesting and endurable sub-type of transnational law, governed almost exclusively, with minimal differences, civil law in most of the territory of the present-day Slovenia and Croatia. Its legal rules survived the Second World War and were applied well into the late 1970s, in part even until the enactment of the new Slovene Code of Obligations in 2002 and the Croatian Obligations Act in 2005. However, since ABGB as a source of law has never been definitively abrogated, its legal rules are still applicable for deciding disputes in both countries, even in the case of the liability of heirs for the deceased’s debts, if the related contract of delivery was concluded as far back as 1960.

Rozvytok instytutu rozpodilu maina podruzhzhia za zakonodavstvom, yake diialo na ukrainskykh zemliakh

The scientific article examines the issue of the development of the institution of the division of marital property according to the legislation that was in force on Ukrainian lands. On the basis of the conducted research, the author comes to a conclusion that during the period of operation of Roman private law on the territory of the Greek polis states of the Northern Black Sea region, the institution of the division of joint property of spouses existed only de facto through the mechanism of transfer of property transferred as a «premarital gift». Norms of canonical and princely law of the Kyiv state did not contain provisions on the division of property of spouses, however, in the customary law of that time there was a practice of separating property into the ownership of a family member, in particular, the division of joint property could also apply to one spouse who received the corresponding property rights, primarily in order of inheritance. In the Lithuanian Statute of 1588, next to separate property, for the first time the possibility of joint ownership of property acquired during marriage was recognized, but only for representatives of the peasant class, but the procedure for the division of such property was not defined. In the «Laws by which the Little Russian People are judged», for the first time at the level of a draft of a written legal act, the specifics of the division of the property of the spouses in the event of a divorce are defined; the provisions of the Code of Laws of the Russian empire provided for the possibility of only contractual regulation of the division of joint property of spouses and only with respect to that property that was located within the boundaries of the Kyiv, Volyn, and Podillia governorates. The judicial procedure for resolving disputes about the division of joint property of spouses was introduced in the Galician Civil Code, and the Austrian civil code allowed the possibility of establishing joint property by a separate contract of the spouses and also determined that the joint property of the spouses is terminated, and the property in question is subject to division in the event of recognition of one of the spouses incapacitated, «voluntary divorce», «judicial divorce», annulment of marriage or its dissolution. For the first time, the legal regime of joint ownership of property acquired by spouses during the marriage on Ukrainian lands was determined by the Law of the Ukrainian People’s Republic «On Marriage and Divorce and on the Registration of Acts of Marriage, Divorce, Birth and Death», and subsequently by Soviet acts of family legislation, starting with the Code of family, guardianship, marriage and acts of civil status UPCP of 1926. Despite the fact that the Decree of the Soviet People’s Committee of the Ukrainian SSR «On civil marriage and keeping records of acts of civil status» and the Code of Laws on acts of civil status, on family and guardianship of 1919, it was assumed that property acquired in marriage was not considered joint property of the spouses, however, in the judicial practice of that time regarding the resolution of disputes about divorce, the opposite was recognized and the judicial division of such property, acquired by their joint labor and funds, was carried out. The procedure and methods of division of common property were initially determined by acts of civil legislation and since 1969 — family legislation. At the same time, the principle of equal shares of spouses in common property was also introduced in 1969.

HISTORICAL DEVELOPMENT OF ALIMONY OBLIGATION OTHER RELATIVES

The deterioration of the economic and social situation in the country, the crisis of family relations and the increase in the number of single people in connection with this, prompt a scientific search for ways to improve the material support of the socially vulnerable population. One of the ways of such provision can be the institution of alimony. Military actions on the territory of Ukraine have become one of the reasons for the increase in the number of people who are deprived of guardianship and care by their closest relatives. Therefore, it becomes practically necessary to apply the legislation on alimony by other relatives. This article is devoted to the development of the legislative regulation of alimony relations of other relatives and covers the historical period from the time of imperial and soviet rule on the territory of Ukrainian ethnic lands to the present. During the preparation of the article, were studied main historical documents, such us Austrian Civil Code of 1811, the Code of Laws of the Russian Empire of 1832, the Assembly of Little Russian Rights of 1804, the Code of Laws on Family, Guardianship, Marriage and Civil Status Acts Ukrainian SSR 1926, the Marriage and Family Code of the Ukrainian SSR 1969 and the current Family Code of Ukraine 2002. It has been established that the alimony obligation of other relatives on the territory of Ukrainian lands during the time of the imperial power was not legislated, but existed in the form of customs. The right to alimony from other persons, except relatives of the first degree of consanguinity, was legislated only in the post-war years. Based on the research of regulatory legal acts, the subject composition of this type of alimony relationship at various stages of historical development and the present is described and qualified. The peculiarities of the occurrence of alimony obligations for all obligated persons are described in detail: grandfather and grandmother, great-grandmother and great-grandfather, brother and sister, stepfather and stepmother, stepson and stepdaughter, heirs, actual educators and pupils. During the scientific research of normative legal acts, all the necessary conditions and grounds necessary for the emergence of alimony relations between other relatives were established and described.

Von mandatum zum Bevollmächtigungsvertrag

The contract of authorization in the Austrian civil code (ABGB) is based on the mandatum of Roman law, but differs from it in two crucial points: First, the ancient mandatum was a necessarily gratuitous transaction. Within a contract of authorization, on the other hand, the parties can either agree on a remuneration for the representative or not. Second, the ancient manda‐tum was a form of indirect agency, while the power of attorney contract can lead to direct agency. This article examines how these two differences evolved in the drafting of the Austrian civil code.

Finding Order in Diversity. Religious Toleration in the Habsburg Empire, 1792–1848 by Scott Berg

Reviewed by: Finding Order in Diversity. Religious Toleration in the Habsburg Empire, 1792–1848 by Scott Berg Nigel Aston Finding Order in Diversity. Religious Toleration in the Habsburg Empire, 1792–1848. By Scott Berg. (West Lafayette, IN: Purdue University Press, 2022. Pp. xviii, 344. $59.99. ISBN: 9781612496962). In this deeply researched and engaging study, Scott Berg demonstrates conclusively that Austria before and during the Metternich years may have been an international symbol of conservatism but, in terms of the Empire’s confessional policy, it had all the hallmarks of a continuing Enlightened regime. Francis I was not his uncle Joseph’s nephew for nothing. Despite intensive pressure from Catholic activists clerical and lay, the Josephist inheritance founded on the 1781 Edict of Toleration was upheld by the bureaucrats driving policy even to the Revolutions of 1848. A multinational and multi-confessional empire had to function efficiently and that required a qualified throne and altar alliance and respect for the rights of non-Catholics (about 30 per cent of the Empire), including confirmation of citizenship under the Austrian Civil Code of 1811. The principle of toleration was upheld, albeit one that rejected a Josephist drive for uniformity in favour of [End Page 212] respecting difference in a composite monarchy. Censorship was in force and it was impossible for Catholic activists such as Hofbauer to agitate openly agains the Toleration Patent because they risked expulsion from Austria. Under ultramontanist pressure, in his last years as Chancellor before 1848 Metternich pushed for a rapprochement with the papacy that would loosen restrictions on the Church but not much was achieved before the Revolutions transformed the political landscape and brought an end to Josephist policies in religion. Prior to that, as Berg shows in Chapter 3, Protestants in Hungary had been integrated into the life of the Empire under Archduke Joseph, the representative of the Emperor in Budapest for half a century down to 1847. Legal curbs were evn imposed on Protestants who opted to convert and mixed marriages were officially discouraged. Only the Tyrol did not follow the loose interpretation of the Toleration Patent and the few Protestants resident there endured popular repression. The Habsburgs also reckoned with a sizeable Orthodox presence. It was left undisturbed though the price exacted was the discouragement of contacts with foreign governments, notably Russia, whose amity pre-1848 was a priority for Imperial officials. Francis I and his successor, the mentally impaired Emperor Ferdinand, ruled over the second largest Jewish population after Russia in Europe and they were keen, mainly through education, to integrate Jews into Habsburg society. And this despite much anti-semitism among the general population and the opposition of some Jews, especially in Galicia, the largest and poorest community. As Berg neatly expresses it: ‘If Liberalism was the best friend of the Jews in the nineteenth century, then Josephist absolutism was its bodyguard’ (p. 153). But the Revolutions of 1848 brought the end of Josephism. The régime finally made concessions to popular Catholicism and restored the Church’s privileged political status in relation to the state by 1850 as Emperor Franz Josef put in place a counter-revolutionary, neo-absolutist regime with internal order as the priority: competitors to ultramontanism were crushed, and the Concordat of 1855 granted the Catholic Church unprecedented rights in Austria. Scott Berg charts with assurance this half-century of Austrian confessional policy in a volume based on solid archival evidence and he ranges across the whole Empire noting territorial divergences where appropriate. There is a nice opening touch to each chapter by way of reference to a building or a statue in the old Imperial lands that recalls this era. Nigel Aston University of York Copyright © 2023 The Catholic University of America Press ...

The Establishment and Administration of Religious Communities in the Austrian Partition after 1855. Analysis of Certain Canonical and Civil Laws

The Concordat of 1855 was preceded by several events that indicated that the situation of religious orders in the Austrian Partition had begun to change gradually. The aforementioned Concordat already stated in its first article that the Church was governed by divine and ecclesiastical (canonical) law and Article XXVIII of the Concordat guaranteed religious orders and congregations full freedom, their own administration in accordance with the monastic constitutions, communal life in accordance with the rule, dependence on the Roman generals and the possibility of establishing new monasteries in dioceses, but with the consent of the bishop after agreement with the civil authorities. This paper will present canonical and civil provisions relating to the formation and administration of religious communities from 1855 onwards. In particular, issues concerning the conditions for admission to a religious order, the effects of the vows taken as well as the rights and duties of religious superiors, the decision to leave a religious order and the provisions concerning the suppression of religious orders will be addressed. Canon law is essentially the provisions of the Council of Trent and the decrees of certain Roman dicasteries, while civil law will be based during the period under discussion on the Concordat, the Austrian Civil Code of 1811 and the Pennal Code of 1852, as amended in 1867.

Mihailo Konstantinović o radu na građanskom zakoniku u međuratnoj Jugoslaviji

The paper analyses the work on the codification of the civil code in interwar Yugoslavia and Mihailо Konstantinović’s opinion of that work, which lasted almost a decade and a half but did not lead to the adoption of the code. The paper describes the environment and circumstances in which the work on codification began, the main actors, their positions, the method of codification, and the outcome of that work – the creation of The Pre-Draft of the Civil Code for the Kingdom of Yugoslavia. Mihailo Konstantinović’s opinion on that work begins with the history of the creation of the Serbian Civil Code, and how it happened that the Austrian Civil Code was used as the basis, as opposed to the French Civil Code. Konstantinović’s arguments for why it was wrong to use the Austrian Civil Code, instead of the 1888 Montenegrin General Property Code are presented.

Konstantinovićeva koncepcija uređenja zastarelosti: da li su ideje o uticaju vremena u pravu izdržale uticaj vremena na pravo?

Mihailo Konstantinović was the author of the 1953 Act on Limitation of Claims. The article explores how he improved and surpassed the rules on limitation set forth in the Austrian Civil Code which had previously been directly or indirectly applicable in a large part of the former Yugoslavia. His cornerstone ideas were later also copied with minor changes (partly not well thought through) into the Law on Obligations, ensuring there was no need for a comprehensive reform for decades. Admittedly, modern guidelines on limitation propose somewhat different concepts, focusing increasingly on the balance between the creditor and the debtor and on the simplification of the system. However, these guidelines are based on the modern discourse on human rights in private law and on the negative experience of some European jurisdictions with outdated and untransparent rules on limitation which – as opposed to the former Yugoslavia – remained unchanged for a century or more.

Usynovlennia ditei inozemtsiamy za simeinym zakonodavstvom, shcho bulo chynnym na ukrainskykh zemliakh protiahom Kh–KhKhI stolit

In the scientific article the author conducts a scientific study of the development of the legal regulation of the adoption of children by foreign citizens according to the legislation that was in force in Ukrainian lands starting from the provisions of canonical and customary law of the Rus period to the norms of the Marriage and Family Code of the Ukrainian SSR of 1969 year. On the basis of the conducted research the author comes to the conclusion that adoption as a family legal institution arose only in the second half of the 18th century, before that it was not regulated by acts of family legislation (with the existence at the same time of the institution of guardianship of orphans and children deprived of parental care). At the same time, the possibility of adoption was foreseen by the norms of canon law, and in customary family practice, adoption was carried out through the reception of a child into the family with the rights of an adoptee in accordance with the family’s own decision regarding an orphan child or a child deprived of parental care, an reception agreement between adoptive parents and natural parents of a child; the relevant legal facts were confirmed both by the adoptive parents themselves in the respective applications and in the wills of these persons, according to which the property belonging to them was transferred to the adopted child. For the first time, the procedure and legal consequences of adoption were regulated by the provisions of «The Laws by Which the Malorussian People are Judged» and later — by the provisions of the Code of Laws of the Russian Empire, the Galician Civil Code and the Austrian Civil Code. These legal acts did not directly provide for the possibility of adoption by foreigners, although they did not prohibit it. The exception was the provisions of the Code of Laws, according to which the conditions for the adoption of a child by foreigners were stipulated — the parents of such a child are unknown, the child must be brought up in the traditions of the Orthodox faith and baptized accordingly. In the future, the adoption of children by foreigners was provided for by the provisions of the 1969 Marriage and Family Code, respectively, provided for the adoption of children by citizens of the USSR (the family codes of the Soviet political entities, adopted in 1919 and 1926, did not contain regulations on the adoption of children by foreigners). At the same time, a special procedure for the adoption of a child by a foreigner was provided for only in 1996. In particular, priority was given to the adoption of a child by a citizen of Ukraine before adoption by a foreigner; the need for a foreigner to be registered for a year, to provide the adopted child with the minimum amount of rights provided for by the family legislation of Ukraine and to supervise the adopted child.

Actio de in rem verso. An Unwanted Continuity. The Doctrine of versio in rem in the Austrian Civil Code and Interwar Legal Discussion in Czechoslovakia

This paper concerns of the doctrine of versio in rem (or actio de in rem verso) in the legal discussion in interwar Czechoslovakia. The paper presents a brief overview of the origin and field of application of actio de in rem verso in classical Roman law and the transformation of the doctrine of versio in rem i n the frame of Corpus Iuris Civilis. The scope of the changes made by the compilers is still uncertain and was a subject of extensive discussion among the legal scholars of the 19th century. The paper describes the nature of versio in rem in the Austrian Civil Code (provision of §1041) and presents legal statements of the prominent exponents of the various legal schools of interwar Czechoslovakia, the legal traditionalists and the supporters of the School of Pure Law Theory. The doctrine of versio in rem is still in the centre of attention of the modern legal scholars in the Czech Republic. The doctrine of versio in rem was adopted in the new Czech Civil Code, but without reflecting the results of the interwar discussion.

Slovak Share in the Unification and Codification Efforts in Interwar Czechoslovakia

The creation of the Czechoslovak Republic and its legal system had its basis in the Act No. 11/1918 Coll. The Act preserved in force former Hungarian law in the territory of Slovakia. In Czech lands, former Austrian law was to be used further on. Quite understandably, attempts were present already in the interwar period to unify the legal system of Czechoslovakia. Analysis of the process and results of unification of law in Czechoslovakia reveals the participation of broad-scale of Slovak lawyers in the process and partial influence of law valid in Slovakia in the projects of new Czechoslovak codes. In the area of substantive law, the revised Austrian Civil Code (ABGB) was to become the basis of the new Czechoslovak Civil Code and therefore, not much space was left for “Slovak law”to influence the final version of the Civil Code project. In the area of procedural law, however, the codes of civil procedure valid in the Czech part and in the Slovak part of the Republic were not as different as it was the case with the substantive civil law. Therefore, the unification process was easier and many institutes of law valid in Slovakia were to be preserved in the project of the Czechoslovak Civil Procedure Code. Unfortunately, the events of the years 1938–1939 was the reason for none of the prepared projects being actually enacted. It was only after the Second World War (mostly in 1950) that the legal order was finally unified in Czechoslovakia.

IMOVINSKO PRAVNI POLOŽAJ ŽENE U BRAKU NA PRIJELAZU IZ 19. U 20. STOLJEĆU: PREMA SADRŽAJU PRIVATNOPRAVNIH ISPRAVA

Drawing up marriage contracts in order to achieve the autonomy of the parties with regard to property relations in marriage in the period after the entry into force of the Austrian General Civil Code has become a common practice. A very detailed normative framework for the regulation of individual institutes of marital law left enough space to regulate property relations between spouses in accordance with their requirements and with the purpose of preserving the economic interests of the family and each partner. In the period in which a man took over the function of managing marital property, and the position of a married woman was marked by patterns of desirable behaviour, a number of property dispositions were recorded with the purpose of strengthening a woman's position in society during marriage, but also securing her status in the case of termination of marriage. Guided by the idea of modernizing the social position of women in the period after the entry into force of the Austrian Civil Code, the basic purpose of this research is to determine the position of women in terms of property rights acquired on the basis of private legal documents. This refers to the institutes included in the content of marriage contracts preserved in the State Archives in Osijek and the effects of wills, which often contained marriage provisions, but also those wills whose creators often sought to provide property protection for poor women by establishing foundations. Available documents come from different legal areas of urban (Osijek) and rural (Baranja) areas, which makes them a valuable material for a comparative analysis of various issues, from applicable law to the effects of its application. Therefore, this research uses a legal-historical method and a comparison of the obtained results to try to determine the effects of marriage law and the impact of contractual dispositions on the economic and legal strengthening of the position of women in the society in the second half of the 19th century.

Osiguranje u Srpskom građanskom zakoniku iz 1844. godine - prilog istoriji pravnog regulisanja ugovora o osiguranju u Srbiji

Comparative legal and normative analysis of the Serbian Civil Code provisions from 1844 (hereinafter referred to as the SCC) on insurance contracts is the subject of this paper. Since it is a Serbian legal tradition from the period of restoration of the Serbian statehood and the struggle for fi nal liberation from the Ottoman Empire, the SCC could not reflect achievements of domestic legal theory and case law. Jovan Hadžić, the author of the Code, given his legal education and positive law in Vojvodina at the time, modelled the SCC on the Austrian Civil Code (hereinafter referred to as the ACC). Such an outcome was caused by the absence of previous regulations or business customs that applied to insurance contracts. Therefore, in this paper we compare legal provisions of both codes relevant to insurance contracts. The paper analyses the rules of certain aleatory contracts of the SCC, especially insurance, the regulation and subject matter of insurance contracts, the form and conclusion of insurance contracts. Obligations to protect and salvage property according to the SCC were analysed separately, having in mind that they could be applied accordingly in marine insurance.

The Meaning of Consent for AID under Family Law

Unlike the mother-child relationship, the father-son/daughter relationship is not attributed to the fact of childbirth. Therefore, not only the sincerity of blood relationship, but also the welfare of the son/daughter, the intention of the parents and the relationship between them, etc., should be taken into consideration to attribute the father-son/ daughter relationship. Moreover, the change of thinking (e.g. Same-sex marriage) and the development of science-technology suggest the possibility of the formation of a new family relationship, and the factors to be considered for the father-son/daughter relationship are bound to increase accordingly. In addition, these factors need to be considered not only for the attribution of the father-son/daughter relationship, but also for resolving the already vested father-son/daughter relationship. If the interpretation of our law makes these changes and developments unacceptable, amendments to the law should also be considered. However, if any problem has to be resolved at this point without such amendments, interpretation of the law and the parties’ intentions must be made within the current legal system, and these factors for considerations can only have an effect within the system. In particular, since the judgment of the Supreme Court is not only a conclusion of the case, but also an important standard in interpreting the law and the parties’ intentions in similar situations, a serious approach to whether or not it contradicts the existing judgment is required. Basically, through the 2019 ruling, we can sympathize with how the Supreme Court of Korea has gone through the process of in-depth analysis of the case and led to the result. In particular, it is possible to agree on the need to secure the welfare of the son/daughter. However, in this paper, the question was raised as to whether this interpretation of the Supreme Court is possible within our legal system at this time, and the following conclusions were reached. First, since the written consent of the father, which is carried out according to the current Bioethics And Safety Act, is consent to the embryo-generating medical institution, consent between the husband and wife must be secured for artificial insemination. To clarify this, it is necessary to legislate the consent in the form of notarization as in Article 152 of the Austrian Civil Code. Second, the consent of the father is a form similar to the consent of adoption, and it is a kind of indication for establishing a father-son/ daughter relationship by a intention, and it can be seen as a contract for a third person based on Article 539 KBGB, in which the person who was born becomes a third person. Accordingly, the father bears a contractual obligation to nurture the child as well as the biological child. Third, since Article 844 (1) KBGB presumes that a child conceived by a wife during marriage is the husband s child, the assumption is made even in the case of artificial insemination. However, the father s right to deny paternity cannot be given up as an exclusive right. Fourth, even if the father’s right to deny paternity is exercised and the father’s paternity is denied, contractual responsibilities must be continuously borne, which may be subject to change of circumstances. This method of interpretation is made within the system of our law, and I think that the welfare of the son/daughter that our Supreme Court was trying to secure can be guaranteed through this as well. However, as can be seen from the background of the introduction of Article 1600 (4) BGB, it is necessary to exclude the right to deny paternity to fathers who have consented to artificial insemination through the revision of the Korean Civil Code. This is because not only the custody of a son/ daughter born through artificial insemination, but also the status of inheritance can be secured.

The Differences of ‘shall be under a duty to furnish support’ and ‘has specially supported’

Critical views : There is a difference in the way of interpretation between Sollen-Norm text and Sein(fact)-Aussage(statement) text. The Sein(fact)-Aussage(statement) text of “specially” in Article 1008-2(Contributory Portion) (1) is an indeterminate concept that requires a value judgment. In order to prevent arbitrary judgment of the courts, concrete work is required (based on specific and relative standards). Laws that can be quantitatively evaluated and the reality of social-economic transactions are firmly established. It is based on Kelsen’s theory. The regulation and interpretation of the obligation to mediate in Article 2057a of the German Civil Code(German BGB) and the bequest of care in Article 677 of the Austrian Civil Code(Austria BGB) are close to the judgment of “specially” in Article 1008-2(Contributory Portion) (1) based on the ‘specific and relative standards’ of the Critical views. We can see that the courts will follow the Critical views in the future. The court will show the most clearly (predictable) case type, “cohabiting and providing nursing the inheritee with a severe disease or disability for a long time”.

A Step Towards Equality? The Admission of Women to Guardianship in the Austrian Civil Law in 1914

According to the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch = ABGB) from 1811, there were almost no possibilities for a woman to obtain guardianship of a child. Instead, the married father possessed paternal authority (patria potestas), which included the sole guardianship of his legitimate children. If the father was unable to exercise paternal authority, the courts had to appoint a guardian for his minor children. Based on the assumption that the female gender lacked the necessary abilities, women were generally excluded from guardianship. Only at the end of the 19th century did the women’s movement start to mobilize against the frequent exclusion of women from the guardianship of their own children. Moreover, the drastic neglection of the young made legal reforms ever more urgent. The legal possibilities open to women for taking over guardianship of a minor were first extended with the legislative amendment to the ABGB in 1914 (1. Teilnovelle 1914). This paper will focus on the causes for the extension of legal possibilities of women concerning guardianship due to the first legislative amendment.

Crediting donations towards the legitimate share according to the jurisdiction of the Krakow- and Lvov-based district courts in the Interwar period

The Austrian Civil Code (ABGB), which was in force in the districts of the courts based in Lvov and Krakow in the Interwar period, stipulated the principle of freedom of testing by the testator. That freedom, however, could harm the inheritance rights of the persons who were the nearest to the testator. The institution protecting the rights of these persons was the legitimate share which they were entitled to as heirs-at-law. The basis to assess the height of the legitim was the size of inheritance. However, while estimating thelegitimate share, donations which the heirs-at-law (persons entitled to the legitim), heirs and legatees had received from testators were taken into consideration as well. The ABGB provided that in the case where the legitim which the heirs-at-law were entitled to was depleted (not at full height) they could demand completion of it. Questions concerning which donations were taken into account and which were not while estimating the height of the legitim due to different practices in this respect were the subject of many courts’ adjudgments. The jurisprudence in this sphere was not uniform. It stipulated compensation of the depleted legitimate share both in kind (in the form of proportional part of the donation) and as a financial benefit, with time evolving towards the latter to a greater and greater extent.

Zaveštanje u Republici Srbiji - pojam i vrste

The family is the basic cell of every society; in it the life of an individual rises, develops and disappears. Family relations are the basis of every social and state system. As a result, all state systems have been trying to keep family relations in peace for centuries. The death of a family member is one of the many factors that can disrupt family harmony, especially under the additional influence of property rights. Centuries ago, the issue of the testator's property was regulated by customary law, and then by legislation. The paper deals with the institute of bequest, as one of the forms of inheritance, with special reference to the types of bequests in the Republic of Serbia. For centuries, bequest has been the institutional of transferring the property and legal relations of the testator to the heirs. The will as we know it today in its form has its basis in Roman law, which had a great influence on the first European civil codes, the Civil Code and the Austrian Civil Code. These codes are still in use today, and their special significance is that they are a panda to all later adopted civil codes, ie to all later established civil legal bases. The Austrian Civil Code had a dominant influence on the settings of the regulation of civil law in the Republic of Serbia. Today, there are nine types of bequests. Each of them follows the life situations, circumstances and circumstances in which it arises.