Serbian Civil Code Research Articles

Recepcija dva rimska edikta u Srpski građanski zakonik

The following edicts were issued by the praetor who designed them in order to protect the safety of Roman citizens and their movement in the vicinity of tall buildings: de is qui deiecerint vel effuderint and ne quis in suggrunda. The first edict regulated the liability in the cases where damage was caused by the expulsion of items or liquids out of buildings into the street. The second covered the liability for dangerously placed objects, which could injure the passers-by or cause damage. After the Austrian Civil Code, the reception of the aforementioned edicts is found within the Serbian Civil Code. These forms of liabilities consist of the following fundamental elements: capacity to be sued, the grounds of liability, actions causing damage or imposing danger and premises of a building which may cause damage or impose danger. By comparing the regulation of these elements in the Roman law and Serbian Civil Code, the author examines to which extent and manner the reception of Roman law took place.

Sticanje prava svojine i službenosti održajem prema pravilima srpskog građanskog zakonika

Serbian Civil Code, modeled based on the Austrian Civil Code (1811), regulates in a unique way the influence of the time on the acquisition and loss of the rights. The uniform regulation of the influence of time on the right dates back to the Roman concept of praescriptio. Based on the ancient Romans the term praescriptio means loss and creation of right, influenced by the time. The concept praescriptio extinctive means loss of rights due to non-exercising the right in a certain time period, while institute praescriptio aqcuisitive means acquisition of right. In the Serbian Civil Code, influence of time on the right is defined by the statute of limitation. Statute of limitation includes two legal concepts, i.e. statute of limitation in a strict sense, meaning loss of rights, and statute of limitation in terms of acquisition of rights, recognized in modern domestic law as adverse possession usucapio. The guiding idea for the creation of this work was to review the concept of adverse possession (concept, conditions for acquisition of right by adverse possession, types of adverse possession) according to the provisions of Serbian Civil Code.

Commission of the commercial agent

In this paper the author analyses the commercial agent's commission as the most important type of remuneration for commercial agency. In the European Union the issue of commercial agent's commission is regulated in the Directive 86/653/EEC on self-employed commercial agents, whereas the Serbian Law on Obligations has still not been harmonised with those rules. Such state of law would change if and when the new Serbian Civil Code is enacted, since its latest Draft contains numerous new solutions, which were inspired by the Directive. The first part of the paper is dedicated to defining the term 'commission' and its distinguishing from the wider term 'remuneration'. Thereafter, the main types of commission are explained. The following part investigates whether the commission or its specific type constitutes essentialia or naturalia negotii of the contract on commercial agency. Finally, the last part of the paper deals with the amount and the extent of covering costs by the commission, in the absence of any agreement on that matter.

Surrogate motherhood in laws of Serbia (de lege lata and de lege ferenda) and Republic of Macedonia

The author in this paper studies the normative approach of Serbian legislator with regards to surrogate motherhood, which was banned by the Act on Infertility Treatment with Biomedically Assisted Fertilization from 2009 that is still in force. Whilst taking a critical stance towards such legislative solution, the author emphasizes significance of and justification for the novelty proposed in the Pre-Draft of Serbian Civil Code, which foresees introducing contracts on giving birth for another into Serbian law, i.e. allows for surrogate motherhood in domestic law. In light of this, particular focus is placed on the analysis of the proposed solutions, which refer to conditions for the application of this method of bio-medically supported fertilization, as well as its consequences in the light of family law and inheritance law. Bearing in mind the fact that surrogate motherhood has been permitted in the territory of former Socialist Federal Republic of Yugoslavia, namely in the Macedonia, the author shall also examine relevant aspects of its legal regulation in that state. Basing the arguments on the solutions proposed in the Pre-Draft of Serbian Civil Code and current solutions in the laws of Macedonia, while also giving a brief overview of the legislation on this matter in other legal systems, the author offers suggestions as to the manner in which surrogate motherhood ought to be regulated in Serbian law de lege ferenda.

Proposed amendments to the legal proposition on establishment of non-marital paternity from 1855

Proposed amendments to the article 130 of Serbian Civil Code (henceforth: SCC) of 1844 regarding establishment of non-marital paternity were scrutinized in this paper. Originally, establishment of non-marital paternity was granted, but with significant restriction that presumed parent could have been declared the father of an illegitimate child only if he had recognized paternity. That is the reason why in 1855 the Supreme Court suggested amendment to the provision concerning determination of paternity. According to proposed modification, evidence that presumed father was on intimate terms with child's mother in the time of conception should have been sufficient for establishment of paternity. As non-marital relationships were condemned in patriarchal Serbian 19th century society, illegitimate children were considered a product of sin and family disgrace. Hence, the Ministry of Justice, the State Council and Prince Aleksandar Karađorđević were not interested in bettering their position by widening possibilities of determination of fatherhood. Subsequently, in 1868 the amendment was passed by which non-marital paternity could not have been established by a court order, subject to certain exceptions (if one raped or abducted a woman, and the time of conception coincided with the time of abduction or rape). Since 1868 paternity could have been determined solely subject to the consent, i.e. recognition of the illegitimate father.

10.5937/zrpfns48-6685 = Attempts to preserve zadrugas in practice of Serbian Court of Cassation

Decisions of Serbian Court of Cassation regarding preserving so - called zadrugas (extended families, common among South Slavs) are subject of this paper. Although market economy and prevailing private property are in sharp contrast to nontransferable estate and collective character of zadruga's ownership, yet in second half of 19th century patriarchal families had many advocates. Therefore, verdicts passed with aim to stop divisions of zadrugas and fragmentation of zadruga's property are scrutinized and critically analyzed. Namely, after enaction of Serbian Civil Code in 1844 divisions of zadrugas became increasingly common. Separation of traditional rural families had destructive impact on material status of former zadruga's members, such as excessive indebting and, as a result of overindebtedness, rapid pauperization and impoverishment of villagers. For that reason, many attempts to diminish widespread fragmentation of zadruga's estate and decrease frequency of dissolution of extended families were made in judicial practice. Those measures undertaken in practice of Serbian Court of Cassation are examined in this paper. Author also indicates in which aspects judicial practice regarding preservation of zadrugas was uniform.

Unfair clauses and Principles of European Insurance Contract Law

Provisions of Principles of European Insurance Contract Law regarding the unfair clauses are analyzed in the paper. The author has come from the importance of definition of unfair clause to the raising of standards of protection of insured as weaker party to the contract of insurance. The central part of the work is devoted to the analysis of unfair clause form the point of view of Principles as well as to the differences between the concept of Principles and concept of Directive on unfair contract terms in contracts concluded with consumers. French law is stressed as an example of inconsistency between consumer law and insurance contract law. There are two clauses of insurance contract: clause of resolution of contract after the realization of risk insured and clause of loss of protection because of late declaration of risk insured. The author proposes the introduction of article on unfair clauses in insurance contracts into the preliminary draft of Serbian Civil Code.

Austrijski građanski zakonik kao izvornik srpskog građanskog zakonika

Serbian Civil Code has been adopted 167 years ago, at 1844. It was fourth civil code enacted in Europe, based on a Austrian Civil Code it inducted Serbia into the German legal circle. Some of the rules of the Serbian Civil Code, such as those that are regulating institute of gift, are still used as a part of positive law. Let that be only one of the proofs of this Code’s actuality.Common opinion of our legal theory is that Serbian Civil Code is only the shortened version of it’s source. It has 950 paragraphs while, at the some time, Austrian Civil Code has 1502. There are some similarities, they are great, except in the parts that regulates family law and inheritance law, where some of the characteristics of Serbian social relations comes out ate the first plan. Researches that has been conducted until now have never give the deeper analyzes of the differences and digressions from the source Code, and also never emphasized some permanent values of Serbian Civil Code.All of the mentioned are the reasons why I would try to point out some differences that Serbian Civil Code has when it’s compared to it’s source, but without any underestimating of the importance of Austrian Civil Code, and the fact that source code is in the great part „transplatated“ in the Serbia Civil Code.

Civil liability for mistakes in the treatment of patients and notification in German law on patients' rights

This paper contains an introduction, four separate parts and the conclusion. In the introduction was first exposed patients' rights in Germany before their codification, and then we talk about general characteristics and objectives of the political and legal rights of patients. The first part of paper is dedicated to the treatment contract and his place in the German Civil Code, that set by the legislature. This is about typical contractual obligations of its parties and special responsibilities of doctors to patients. The second part relates to the peculiar duty of doctors to inform patients about their own and others' mistakes in treatment. The third part includes responsibility for mistakes in patient care. Starting from the premise that the mistake is a negative deviation from the medical standard, the author talks about the concept of medical standards and the principle of freedom to choose the method of treatment, and what treatment means. The fourth section deals with the burden of proof for liability for negligent medical treatment and informing the patient. There is, in fact, a word of facilitating evidence in favor of the patient, as it has found and developed jurisprudence, and now these benefits translated into the legal standard which is particularly noticeable feature of the German health medical law. The author concludes that the German law on patients' rights has a special meaning for patients, doctors and lawyers in Serbia. The special attention is drawn to its provisions regarding the treatment contract, which the legislator settled in the Civil Code. They encourage reflection on whether the contract of treatment has the place in the future Serbian Civil Code which is preparations are underway. In addition, special attention is given to the provisions of the new German law which obliges the doctors to inform the patient of his and someone else's mistakes in treatment, as well as provisions on the burden of proof in lawsuits against doctors. The author states that Germany is the only one, so far, the country in Europe that legislators in the form of these rules means to maintain a balance of interests between doctors and patients. For those who are not ready to go down that path, this could be at least an ideal to be strived for.

Regulations on zadruga enacted after introduction of Serbian Civil Code in 1844

Regulations on so - called zadruga (extended family, common among South Slavs) enacted after introduction of Serbian Civil Code in 1844, are examined in this paper. As zadruga was a dominant family structure in Serbia throughout XIX century, various rules regarding all important aspects of life in extended families were passed. Having in mind widespread existence and durability of zadrugas, significance of these regulations is emphasized in the article. Therefore, numerous provisions regulating legal nature of zadruga, property rights of zadruga's members, rights of succession of female children and divisions of zadrugas are scrutinized and critically analyzed. The author also indicates all major changes of traditional, customary law nature of zadruga that had taken place in legislation on zadruga's aiming to preserve extended families in considerably different social circumstances of XIX century.

Mortgage development in Serbia, specialty in Serbian Civil Code from 1844. year

The history of Serbian mortgage law is not too long. The mortgage law began in first half of XIX century. The first Act about mortgage was The Intabulation Law from 1839. year. Mortgage is a right of lien on an immovable which authorizes the creditor to seek satisfaction of his claim for the value of such immovable before of other creditors that do not have mortgage on it, as well as before creditors who have acquired mortgage on such immovable subsequent on him, irrespective of a contingent change of owner of the encumbered immovable. The mortgage was based on some rules. The mortgage is accessory rights. One of the basic features of a security right is its dependence on the claim. The mortgage creditor is entitled to request satisfaction of the claim from the value of immovable encumbered by mortgage, regardless of whether it is still in possession of the mortgage debitor or it has been convened into ownership of a third party. This The Intabulation Law is changed twice. For the first time in 1842 year, and second time in 1853. year. The lack of both changes was missing the principle of speciality. Principle of speciality marks the fact that a guarantee (security), may secure only a definite claim of one creditor and that the guarantee may exist only on a definite set of objects (assets). On one hand speciality of real security interest forbids securing an indefinite number of claims or an indefinite amount of claim, and, on the other, forbids the prospect of indefinite assets, or all assets of the debitor be subject of to such a security interest. This lack are eliminate in the new Intabulation Law from 1854. year, which was incorporated into Serbian Civil Code from 1844. year. The subject of this article is The Intabulation Law from 1854. year.

Codification of property law in Serbia: Achievements and prospects

After the Serbian Civil Code came out of force, property law in Serbia has not been systematically regulated. A number of statutory lacunae, a long-term practice of inadequate regulatory acts for property relations, poor quality of certain regulations, overwhelming number of pieces of legislation where property legal norms have been scattered, brought about the legal uncertainty in matters of property law. The most prospective solution for the given problem would be a new civil code or a new statute (code) which would comprehensively regulate property law. Despite the fact that these problems and the need to codify property law have been known, and that solutions have been advocated together with some efforts to achieve them, no significant progress has been made. The reason might be far simpler than it could seem at the first glance.

Critiques of Serbian Civil Code of 1844 with special reference to provisions on zadruga

Critiques of Serbian Civil Code of 1844 were presented in this paper. Namely, Serbian Code was not an original work, but rather abridged version of Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch). Critics objected to author of the Code Jovan Hadžić that he took himself too much liberty in his redaction work, so that some provisions become unclear. Hadžić was also criticized for very difficult language and style of codification and sometimes inaccurate legal terminology. But mostly Hadžić was criticized for miscomprehension of the legal nature of so - called zadruga (extended family, common among South Slavs), product of customary law. The entire institute of zadruga was regulated rather superficially, so that sometimes it was considered as a legal entity and sometimes as a condominium. Therefore, critiques of the provisions on zadruga were particularly examined in this paper.

On dynamics of legislative work and its effects

Through a short comparative analysis, the author showed how much the speed of legislative work can influence the quality of normative solutions, and their effects in legal practice. Special attention was paid to the Austrian civil code (Allgemeines bürgerliches Gesetzbuch - ABGB, ACC), of year 1811, which succeeded in resisting the challenges of time for two centuries. A number of factors influenced its longevity. First of all, prior to adoption of the law, a long lasting and well designed work, which has been described in greater detail in this article, was done. The Code was written gradually, with lots of recalculations, checks and public debates. In legal literature, it is often written about a unique lawmaking experiment, which Austrian authorities made by implementing the Code in one part of the state territory. The Code was written for feudal order, but according to principles of natural law. This second thing has, in addition to widely formulated and flexible legal norms, left enough space for extensive interpretation of outdated rules, and filling in the legal lacunas, whose number was increasing as the time passed. Courts often used this opportunity in a creative manner, contributing to survival of the Code. Many additions and changes were made to the Code, but there were few of those who thought that it should be changed by a new one Code. Austrians are preparing a more detailed revision of the ACC, which will allow modernization of the national law and it's synchronization with trends in current European law, but on the other hand, to preserve the two century old legal heritage. In contrast, the Serbian civil code of 1844. emerged from different social and economic conditions. It was written in a relatively short period of time, with the Austrian code as a model. The opinion that the legislator contributed to the rapid decadence of family clans (porodična zadruga) and along with it the economic weakening of society as a whole, by his inappropriate adoptions of normative solutions from foreign law, is predominant. Similar processes are taking place today. Supranational law of the European Union is being shaped progressively, in a long time period, which is measured in decades. On the other hand, countries which are candidates for membership in the EU are required to adopt hundreds of laws and other regulations, in accordance with European legal standards, in very short time.

Serbian Contract Law: its development and the new Serbian Civil Code

The draft of the part on the law of obligations of the future Serbian Civil Code has recently been published, which includes new and revised rules on contract law. Through the process of adopting the new Serbian Civil Code, it can clearly be seen that Serbia faces two harmonisation challenges: the first being to reintegrate itself with other European civil law systems, while the second is to harmonise its national contract law with the latest developments of European Contract Law. In the first part of this article, I will examine the development and evolution of Serbian Contract Law, first evident in the first Serbian Civil Code of 1844. The second part of the article will deal with the contract law in the recently presented draft of the part of future Serbian Civil Code dealing with the law of obligations.

Nedozvoljene odredbe kod ugovora o zalozi u našem pravu

The limitation of the principle of the autonomy of parties' will while entering into the pledge agreement is based in the applicable law on the prohibition of negotiating lex commissoria, patto Martiano and pactum antichreticum. The prohibition of stipulating the above mentioned clauses in the pledge agreement existed also in the Serbian Civil Code 1804, Austrian Civil Code 1811 and General Property Code for Montenegro 1888, which were applicable in the period after the war based on the principle of legal continuity at the territory of our former state. Our effective laws that regulate different kind of pledge do not provide different legal solutions. The Law on Contracts and Torts 1978 and Law on Pledge on Movables Registered in the Register 2003 set forth the prohibition of negotiating the lex commissoria and patto Martiano related to the pledge on movables, pignus and registered pledge, while both laws conditionally allow pactum antichreticum. The Mortgage Law 2005 prohibits all three clauses. A long tradition of the stated prohibitions speak in favor of their justification, since their goal used to be and is the same: to protect the contracting parties to the pledge agreement and to protect common value - to protect from usury, abuse of more favorable position of one contracting party. The goal of this paper is to demonstrate the good sides of the existing solutions but also to underline their deficiency, due to which the parties and third parties that may be affected by these provisions lack proper legal protection. This relates to the provisions in the pledge agreement which will be prohibited in our legal system de lege ferenda based on the Draft Law on Property and other Property Rights in the Republic of Serbia, while the legislator will make a great move in the field of mortgage, allowing the contracting parties to negotiate pactum antichreticum when constituting the mortgage on real estate.

Two centuries of the Austrian Civil code (1811-2011)

Austrian civil code (Allgemeines b?rgerliches Gesetzbuch - ABGB, ACC) succeeded in resisting the challenges of time for two centuries. A number of factors influenced it's longevity. First of all, prior to adoption of the law, a long lasting and well designed work, which has been described in greater detail in this article, was done. The Code was written gradually, with lots of recalculations, checks and public debates. In legal literature, it is often written about a unique lawmaking experiment, which Austrian authorities made by implementing the Code in one part of the state territory. The Code was written for feudal order, but according to principles of natural law. This second thing has, in addition to widely formulated and flexible legal norms, left enough space for extensive interpretation of outdated rules, and filling in the legal lacunas, whose number was increasing as the time passed. Courts often used this opportunity in a creative manner, contributing to survival of the Code. Many additions and changes were made to the Code, but there were few of those who thought that it should be changed by a new one Code. Austrians are preparing a more detailed revision of the ACC, which will allow modernization of the national law and it's synchronization with trends in current European law, but on the other hand, to preserve the two century old legal heritage. The second part of this article is dedicated to the influence of the Austrian Civil Code on the development of civil law in the former Yugoslavia and Serbia. ACC served as model for adoption of the Serbian Civil Code of 1844. It was applied as a positive law in the first half of XX century, in one part of the territory of today's Autonomous Province of Vojvodina. Formally, legal rules of the Austrian Civil Code can even be applied today, according to the Law on Nullity of Legal Regulations Enacted Prior to 6th of April 1941, and During the Enemy Occupation. However, that possibility is more theoretical than practical, and is limited only to a narrow field inside the property law, because in other fields, Serbia has an equally proper, and in domain of obligation law, even a more modern legal regulative, which was mentioned by some Austrian authors.

Just Price (pretium iustum) and its application through history

In this paper, without going into detailed theoretical considerations, we gave only the main development of thoughts about iustum pretium, as well as the outline of different methods of its realization through history, until today. The main problem is how to ensure the principle of equality between the contracting parties whose position is often unequal due to their different circumstances. The demand for equality of contracting parties in business relations and their mutual obligations (equivalence) was laid down by Aristotle in the early IV century B. C. Later the praetors have developed these principles, and they got their own further elaboration by pre-classical and classical roman jurists. Despite the fact that from the period of the Republic there already existed some sort of price control, mainly because of social reasons, the main rule was - that the price is just, if there is no lack of will one of the contractual parts: dolus, metus, error, or lack of experience in case of a person younger than twenty-five (minor), or women. They have considered in the first place the principle of bona fides in business relations. In modern theory, this concept is known as the subjective theory of the just price. In the post-classical period, due to special needs of poor small land-owners (in the period of Diocletian or Justinian) the seller of the land, who did not get even a half price of the value of a land sold, enjoyed protection even without its consideration and proving the lack of the will. Although there are only two provisions in Justinian's code about it, this rule, which was called laesio enormis in the Middle Ages (and founded the so-called, objective theory of just price), thanks to canon law mainly, with a lot of discussion in the Middle-Ages in theory and different solutions in practice, ius commune is accepted as a general rule. Modern codifications accepted in the first place the subjective theory about the just price. Somewhere in the sense of usury contracts (like in German BGB) or in combination with laesio enormis (for example, Code civil, ABGB, our Law of obligations), but only exceptionally, laesio enormis is accepted also in the objective sense (like in former Serbian Civil Code, and Hungarian Ptk). We can say that today there is a tendency of wider interpretation of the bona fides in practice when solving the question of equality of values, all with the aim of weaker party protection, usually the consumer. Council Directive 93/13 EEC protects the consumer with a new, objective rule: the prohibition of one-sided unfair contract clauses: if the clause harms the consumer neglects the bona fides requirements and if it results in considerable inequality in the rights and obligations of the contracting parties. A clause like that does not oblige the consumer. There is a tendency to apply this rule to all contracts, which means also on non-consumer contracts.

The principle of self-determination in the family law through history and today

In the jubilee year 2004, Serbia marks the 200th anniversary of The First Serbian Uprising, structuring of modern Serbian state and its legal system comparatively speaking, France marks the 200th anniversary of passing the French Civil Code, one of the most significant civil codifications in the 19th century. It was an occasion to study certain institutions of family law through history and today. The used approach is modern, we studied the ways how the principle of self-determination influenced the family-legal solutions today, and we investigated if one could talk about the effect of this principle in the historical sense, too. The principle of self-determination implies the possibility for the subjects of family-legal relations to arrange their own relations themselves ? both the partner and parent relations. However, this principle undergoes significant limitations in the family law because the family relations are personal relations by character, as well as because of the need to protect the weaker participant, both the weaker partner or a child who needs protection stemming from his/her very status. Within marriage law, the principle of self-determination of the spouses (extramarital partners) is, among other things, made concrete through the possibility for an agreement about the effects of marriage (extramarital union), then through the possibility of agreed divorce, while the procedure of mediation in the marriage litigation contributes to the realization of the mentioned principle. As for the effects of marriage (extramarital union), the paper particularly discusses property relations, that is the marriage property contract, because it is at the moment a current issue in our domestic law. Within the relations between parents and children, the concretization of the principle of self-determination in parental care is significant, particularly in the situations when the relations between the parents were disturbed and resulted in a separation or a divorce with the joint parental care (application of the parental right). All institutions are analyzed in the positive law, in the historical context (solutions from the Serbian Civil Code the former Hungarian Law), and viewed comparatively in the European legal systems of the east and west European countries.

Westen im Osten

Western European legal historiography deplores the 19th century as the age of destruction of the Romanrooted ius commune by national codes. In reality the French code civil, the Austrian ABGB and the German Pandectist jurisprudence effected rather a relative unification of private law. In the same way, French constitutionalism as well as the administrative and court system spread throughout the West. This wave of law reform also rolled over Eastern Europe, until then a patchwork of customary law. In South-Eastern Europe, previously under Byzantine influence, the Serbian Civil Code of 1844 followed the Austrian ABGB, while the Rumanian Code of 1864 followed the French code civil. All over the region the liberal Belgian constitution of 1831 was very influential. Bohemia and Poland, both of them forming the eastern periphery of the Central-European empires, simply had their law imposed upon them. Hungary and Russia, on the other hand, modernized their law mainly by means of German Pandectist jurisprudence. In this way the patchwork of eastern customary law was harmonized. The further circulation of western legal models in the interwar period completed the relative unification of continental European law. The communist rule left these common legal bases of West and East to a large extent intact.