Freedom Of Disposition Research Articles

King NNO V De Jager 2021 4 SA 1 (CC): Three Perspectives

In the King case, the South African Constitutional Court adjudicated on a gender-based disinheritance under a testamentary fideicommissum. The court, in three judgments, found that the disinheritance violated public policy and was, moreover, unconstitutional and thus invalid. King was the Constitutional Court’s first pronouncement on a gender-based disinheritance in a purely private bequest. It therefore stands in contrast to earlier High Court and Supreme Court of Appeal judgments regarding the exclusion of potential beneficiaries under testamentary charitable bequests. This contribution provides three perspectives by commentators from three jurisdictions on the Constitutional Court’s judgment in King. The first perspective argues against an objection that can be raised against a judgment such as King, namely that it constitutes an unjustified judicial violation of personal autonomy, freedom of disposition and private property in the law of gifts and trusts. The first perspective posits that discriminatory goals such as those pursued through explicit gender-exclusive disinheritances are inherently worthless and the judicial invalidation of such disinheritances therefore have a negligible impact on personal autonomy, freedom of disposition and private property. The second perspective cautions against the Constitutional Court’s express rejection of the public/private divide in the law of gifts and trusts. It argues that the divide plays an important role in striking a balance between personal autonomy, freedom of disposition and private property on the one hand, and policy as well as constitutional imperatives regarding equality and non-discrimination on the other hand. The second perspective thus advocates that the public/private divide must be retained in the law of gifts and trusts. The third perspective evaluates the King case from a German viewpoint and argues that the Constitutional Court’s reasoning in this case undervalued freedom of testation. The third perspective advances a solution that strives to balance the arguments that underpin the first and second perspectives.

Srednjovekovno srpsko pravo o nasleđivanju

Serbian legal sources have limited data on the law of wills and succession: no will was preserved and the Law Code of Stefan Dusan regulated intestate succession only in articles 41 and 48. It seems that the commoner class (sebri), living mostly in extended families, inherited their property according to the rules of customary law, while the noblemen accepted provisions of Byzantine law. In Serbian legal miscellanies, translated from Greek, the institutes of testate and intestate succession were thoroughly presented. The so called Zakon gradski (Serbian translation of Procheiron) contains 12 chapters referring to the law of succession and the Syntagma of Matheas Blastares placed all provisions on testate and intestate succession in chapter K - 12 under the title On heirs and the disherison of sons or parents. Byzantine law on intestate succession kept all the basic principles of Justinian's legislation. Serbian sources only mention intestate succession of hereditary estates (socalled bastina) belonging to the noblemen class, but according to some fragments from Serbian charters we can conclude that the estates could be inherited even in the commoner's class. The fact that not a single will remained in Serbian mediaeval law does not mean that it was unknown in Serbia. Sources mention its existence using Slavonic terms zavet and zavestanije and sometimes a Greek word diatax, while a freedom of disposition by testament was expressed by the formula given for the soul (za dusu odati).

Efectele patrimoniale ale libertății în Codul civil român

The contract is the way subjective rights travel from a patrimony to another. Freedom of contract represents the power to decide either to keep or to expel the subjective rights, to choose the type of contract and the other contractor.Mortis causa, the freedom of testation is the one that engages the patrimonial translation. Are the two freedoms applications of the more general freedom of disposition? What is freedom of disposition? It is necessary to discover the link between freedom of disposition and the use of the rights, because there could be an overlay of one on top of the other. Also, not only the patrimonial rights can be the object of the freedom of disposition, despite the general perception. Legal freedom gives meaning to legal responsibility, which cannot be imagined in the presence of constraint. Freedom of contract was born out of the moral precepts that funded the legal norms, but excessive regulation har overcome the morality of freedom.

ESTATE LAW—Balancing the Competing Interests of Efficiency, Finality, and Freedom of Disposition in Ancillary Administration Proceedings: Lon V. Smith Foundation v. Devon Energy Corp., 2017 WY 121, 403 P.3d 997 (Wyo. 2017)

ESTATE LAW—Balancing the Competing Interests of Efficiency, Finality, and Freedom of Disposition in Ancillary Administration Proceedings: Lon V. Smith Foundation v. Devon Energy Corp., 2017 WY 121, 403 P.3d 997 (Wyo. 2017)

On the history of codification of Hungarian civil law and the new Hungarian civil code

The first part of the paper examines the basic tendencies in the development of the codification of Hungarian civil law in the period of representative and civil society. The second part deals with the new Hungarian Civil Code (2013/14) its content, methods of regulation and its relation to other civil legislation, temporal validity with the adherence to the idea of validity pro futuro, as well as its tendency to harmonize its norms with the guidelines of the European civil law. In accordance with the idea of completeness, the lawmakers incorporated all of the areas of civil law according to the pandecta system - personal law, corporate law with civil association law, family law, obligations and inheritance. The Code is based on the principle of equality of parties in civil relations, the principle of good faith, fraus legis prohibition. Family law is based on specific principles of protection of marriage, family and children. Contract law is based on the freedom of contract, limited by good customs and morality. Tort law is guided by the principle of prohibiting the harm to others, full compensation of material and imaterial damages. Contractual responsibility is regulated separately, so that the tort rules apply if the specific rules of contractual responsibility donot say otherwise. Other grounds for obligations are also regulated, as well as unjustified enrichment, doing business without order or authority, unilateral expression of intention and securities. The grounds for inheritance are contractual, statutory or based on the will. Freedom of disposition by will is limited by statutory rules regulating the forced share. The system of transfer of property ex lege after the death is adopted. The state is a successor if there are no testamentary, statutory or contractual inheritors.

The Maltese Law applicable to trusts: balancing the application of mandatory rules with freedom of disposition

Journal Article The Maltese Law applicable to trusts: balancing the application of mandatory rules with freedom of disposition Get access Tonio Fenech, LL.M.(Lond.), LL.D. Tonio Fenech, LL.M.(Lond.), LL.D. Fenech & Fenech Advocates198 Old Bakery Street, Valletta, Malta Tel: 00356 2124 1232 Fax: 00356 2599 0640 E-mail: tonio.fenech@fenlex.comwww.fenlex.com Search for other works by this author on: Oxford Academic Google Scholar Trusts & Trustees, Volume 11, Issue 6, May 2005, Pages 36–41, https://doi.org/10.1093/tandt/11.6.36 Published: 01 May 2005

Public Welfare: The Road to Freedom?

AbstractThis article is concerned with the extent to which systems of public welfare can be said to have reduced or enlarged personal freedom. It looks, first of all, at the kind of arguments which have been advanced both in support of, and against, the notion of ‘the Welfare State’ as a defender or promoter of individual liberty. Secondly, it examines some of the freedoms which are said to have been threatened or enhanced, including ‘freedom of choice’, ‘freedom of disposition’ and ‘freedom of action’. Finally, it argues that many of these are ‘secondary’ freedoms, contingent upon the primary condition of freedom from economic need. Following Roosevelt we conclude that ‘true individual freedom cannot exist without economic security and independence’ and that, although public welfare may have been partly responsible for an overall ‘levelling-up’ of freedoms, the distribution of such freedoms still reflects inequalities of income, status and power.