VZNIK A MIESTO VECNÉHO PRÁVA V SÚKROMNOPRÁVNOM PORIADKU (I. ČASŤ)
Origin and a place of the law of property in the private law code (part one)
In the first part of article, the author briefly explains the circumstances of origin of the law of property in the continental system of law on the background of the evolution of Roman private law. He refers to the role of glossators and commentators (so-called post-glossators) who during the historical development (13th to 15th centuries) tried to adapt Roman law to the new social and economic conditions by explaining the sources of Roman law. In these historical context a distinction between the law of obligation and the law of property started to be drawn, which clearly manifested itself during the reception of Roman law in continental European states. The category of the law of property, created by the legal science on the historical basis of Roman law during the long period of its reception, thus naturally found its legislative expression in private law of most states belonging to the continental system of law. The following part contains a comparison between the basic aspects of law of property provisions in a representative group of large civil codes adopted in the 19th and 20th centuries, particularly in French Code Civil, Austrian ABGB, German BGB, Swiss ZGB, Italian C.c.i. and Dutch BW. The comparison permitted to highlight, beside of several differences, general characteristics and principles, which are common to all these codes. The following principles of the law of property were highlighted: definiteness and absoluteness, prior tempore potior iure, numerus clausus and publicity of the law of property. These principles reflect the indispensability, cooperating function and stabilising character of the subsystem of the law of property in the private law codes in a market economy.
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