Journal articles: 'Marital property (Roman law)'

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Krešić, Boris, and Ervina Halilović. "PROPERTY RELATIONS OF MARITAL PARTNERS THROUGH THE HISTORY OF BOSNIA AND HERZEGOVINA." Journal Human Research in Rehabilitation 7, no. 2 (September 2017): 106–17. http://dx.doi.org/10.21554/hrr.091712.

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The institutes of contemporary family law are rooted in Roman law, including the property relations of marital partners. From the historical perspective, the property-legal relations of marital partners in Bosnia and Herzegovina (BiH) were subject to religious regulations and the rules of the General Civil Code and Family Law of the Socialist Republic of Bosnia and Herzegovina. The article analyzes the solutions applied during the Roman, the Ottoman, and the AustroHungarian rule as well as the solutions included in the currently valid Basic Law on Marriage and Family Laws in BiH. The authors focus on the development of family law in terms of property relations of marital partners and provide historical-legal overview of the development of family law from the absolute power of pater familias to the full equality of marital partners.

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Gashi, Haxhi, and Bashkim Preteni. "MARRIAGE AND PROPERTY REGIME OF SPOUSES UNDER KOSOVO CURRENT LAW AND DRAFT – CIVIL CODE." Pravni vjesnik 36, no. 3-4 (2020): 309–23. http://dx.doi.org/10.25234/pv/10800.

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The impact of marriage in the property rights of spouses has been recognized since Roman law and nowadays remains a principle well established under each European legal system. Under Kosovo law, marriage creates different legal consequences between spouses including for their property rights. The current property regime of spouses under the Law on Family establishes rules on individual ownership and joint ownership. However, it does not recognise the contract for the regulation of the property regime of spouses. This has created problems with regard to the separation of the property after the marriage ceases. Contrary to this, under Kosovo Draft Civil Code – Book 4 on Family, the property regime of the spouses has advanced including for the recognition of premarital and marital contracts. This paper discusses questions arising from the relationship between spouses that have an effect on property and are treated from a current law perspective and in line with the civil law codification that is occurring in Kosovo.

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Clark, Simon. "Law, Property, and Marital Dissolution." Economic Journal 109, no. 454 (March 1, 1999): 41–54. http://dx.doi.org/10.1111/1468-0297.00415.

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Symeonides, Symeon. "Louisiana's Draft on Successions and Marital Property." American Journal of Comparative Law 35, no. 2 (1987): 259. http://dx.doi.org/10.2307/840390.

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Stefanović, Nenad. "The concept of property in Roman law." Pravo - teorija i praksa 35, no. 7-9 (2018): 17–29. http://dx.doi.org/10.5937/ptp1806017s.

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Stefanović, Nenad. "Original acquisition of property in Roman law." Pravo - teorija i praksa 35, no. 10-12 (2018): 46–58. http://dx.doi.org/10.5937/ptp1812046s.

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Kisil, V., and A. Pashynskyi. "CONFLICT OF LAW RULES ON MARITAL PROPERTY RELATIONS IN UKRAINE: THEORY AND PRACTICE." Actual Problems of International Relations, no. 137 (2018): 48–57. http://dx.doi.org/10.17721/apmv.2018.137.0.48-57.

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This article is about the theoretical and practical aspects of conflict of law regulation of marital property relations under the Law of Ukraine “On Private International Law”. Inter alia, the paper deals with the possibility of the choice of law applicable to prenuptial contracts and marital property relations as well as the conflict of law rules applicable to property consequences of marriage in the event of absence of the choice of law. The author analyses the limitations to applying the principle of autonomy of will in marital property relations, the correlation between legal concepts of “marital property relations” and “legal consequences of marriage” and the possible forms of performing lex voluntatis. With a view to protecting the interests of the child and the weaker party in a marriage, the author proposes amendments to para 1 of Art. 61 of the Law, pursuant to which the law chosen by the parties must not impair the standing of the child or one of the spouses as compared to the law to be applied to property consequences of marriage in the event of absence of a choice of law. The paper also focuses on the overview of relevant Ukrainian court practice regarding the application of the Law during proceedings on marital property relations with a foreign element.

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Sanders, Anne. "PRIVATE AUTONOMY AND MARITAL PROPERTY AGREEMENTS." International and Comparative Law Quarterly 59, no. 3 (July 2010): 571–603. http://dx.doi.org/10.1017/s0020589310000230.

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AbstractAfter the Court of Appeal decision in Radmacher v Granatino, the question whether English law should introduce enforceable pre-nuptial or marital property agreements came into focus again. Taking the decision as a starting point, the article argues in favour of introducing such agreements. Adopting a comparative approach, the article explains how such agreements are used in Germany and demonstrates that the idea of private autonomy, which has been regarded as the basis of pre-nuptial property agreements in Germany since the 19th century, can explain why couples should be allowed to make their own decisions with respect to the financial consequences of the breakdown of their relationship. Analysis of the different notions of contract in German and English law as well as comparing marriage with partnerships and other long-term contractual relationships illustrates not only the historical reasons why such agreements have not been allowed so far, but also helps to understand what safeguards the legislator and the judiciary could apply to ensure that parties do not abuse their freedom.

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Lee, Daniel. "Private Law Models for Public Law Concepts: The Roman Law Theory of Dominium in the Monarchomach Doctrine of Popular Sovereignty." Review of Politics 70, no. 3 (2008): 370–99. http://dx.doi.org/10.1017/s0034670508000557.

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AbstractThe essay traces the juridical origins of the modern doctrine of popular sovereignty as developed by the monarchomach jurists of the late sixteenth century. Particularly, the use of doctrines from the Roman law of property explains the sovereign right of the people to resist and reconstitute the commonwealth. Reviving the civilian concept of dominium during the French Wars of Religion and dynastic royal politics, these radical jurists articulated the claim that the people, not kings, have property rights over the commonwealth. By conceptualizing the people corporately as property-owners in this way, they were able to draw on legal arguments from Roman law to justify popular resistance as an assertion of a corporate property right. In doing so, the monarchomachs expressed an elaborate theory of state and sovereignty within the grammar of the Roman private law.

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Marinenko, Olga. "PROTOTYPES OF PROPERTY COMPLEXES IN ROMAN PRIVATE LAW." Journal about Law 2, no. 3 (May 9, 2014): 15–18. http://dx.doi.org/10.15727/2313-6715.2014.2.3.15-18.

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Mutiso, Benedeta. "Getting to Equal: Resolving the Judicial Impasse on the Weight of Non-Monetary Contribution in Kenya's Marital Asset Division." Michigan Journal of Gender & Law, no. 26.1 (2019): 121. http://dx.doi.org/10.36641/mjgl.26.1.getting.

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Marital property law reforms and changing international human rights standards in the late 20th and early 21st century prompted Kenya to end certain discriminatory practices against women, especially in the area of property rights. For 50 years, Kenya relied on England’s century-old law, the Married Women’s Property Act of 1882, to regulate property rights. In 2010, Kenya adopted a new Constitution that called for equality between men and women, and in 2013, Kenya enacted independent legislation in the form of the Matrimonial Property Act (MPA). The MPA provides a basis for trial courts to divide marital property upon divorce. Specifically, it provides that monetary contribution and non-monetary contribution are the only factors for dividing marital property on divorce. The Kenyan courts have issued contradictory decisions on the weight of nonmonetary contribution in long-term and short-term marriages. Without guidance on the weight of non-monetary contribution during divorce proceedings, the courts have left potential litigants, especially women, to navigate the unsettled waters of marital disputes in the legal system. Kenya’s Parliament should take steps to clarify the legislation, develop regulations on the weight of non-monetary contribution, and provide statutory factors for consideration during division of marital property. This will ensure that courts meet the overriding objective of achieving a fair outcome in marital property disputes. Because of the constitutional guarantee of equality, the courts must begin analysis of property division by assuming each spouse is entitled to half of the marital property.

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Papademetriou, Theresa. "Marriage and Marital Property under the New Greek Family Law." International Journal of Legal Information 13, no. 3-4 (August 1985): 1–40. http://dx.doi.org/10.1017/s0731126500018709.

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The movement for a civil law reform in Greece that was initiated in 1975 with the constitutional guarantee of equal rights and obligations of the sexes led to the adoption of Law 1329/1983 on the Application of the Constitutional Principle of Equality of the Sexes in the Civil Code and Its Introductory Law, in Commercial Legislation, and in the Code of Civil Procedure, as well as to Partial Modernization of Certain Provisions of the Civil Code Regarding Family Law.

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Linh, NGUYỄN THỊ MỸ. "Marital Agreements in Vietnam from 1858 until Now." DÍKÉ 5, no. 1 (September 1, 2021): 150–61. http://dx.doi.org/10.15170/dike.2021.05.01.10.

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The institution of prenuptial agreement is a founder of contractual matrimonial property regime. The possibility of concluding a marriage contract contributes to ensuring the equal rights of the spouses, as they are free to agree on their pre-marital property. Recognizing the necessity of the contractual freedom in family law, the 2014 Act on Marriage and Family of Vietnam allows couples to choose between the statutory property regime and the agreed property regime. This article presents the history of the institution of marriage agreement in Vietnam, also with regard to the development of law in European countries.

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Lichtenstein, Bronwen, and Ida M. Johnson. "Splitting the Marital Home: Gendered Property Division and Postdivorce Foreclosure." Journal of Divorce & Remarriage 60, no. 5 (November 20, 2018): 346–61. http://dx.doi.org/10.1080/10502556.2018.1546065.

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Pelloso, Carlo. "Serviles personae in Roman Law." Journal of Global Slavery 3, no. 1-2 (January 31, 2018): 92–128. http://dx.doi.org/10.1163/2405836x-00301006.

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Abstract This article aims at sketching the prima facie “paradoxical” legal status of “slaves” in Roman law. Hence, it deals with principles and rules directed to regulate two paradigmatic and highly relevant areas of economic life, i.e. sale and agency. Both shared the fundamental presence of servi or mancipia, conceived at times as mere objects, at times as real individuals. On the one hand, according to non-Roman conceptions (that consider slavery per se a liminal and, thereby, indefinable institution), the law concerning serviles personae would represent such a contradiction by merging the Aristotelian categories of bios and zoe. On the other hand, pre-classical and classical Roman law, adhering to a functional and wide notion of legal persona, and embodying a status-system, transcends any apparent inconsistency between property law and business law.

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Vintoniak, N. D. "Corporate Rights Of The Spouses: The Essence Of The Legal Regime." Actual problems of improving of current legislation of Ukraine, no. 50 (June 11, 2019): 103–13. http://dx.doi.org/10.15330/apiclu.50.103-113.

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The article is devoted to the question of legal regulation of corporate rights of spouses. The issues of the legal regime of marital property as well as the essence of the legal regime of spouses’ corporate rights have been discussed. It has been justified that upon investing marital property into the authorized share capital of a corporation which one of the spouses has ownership rights in, the rights of rem become the law of obligation (vinculum iuris). The law of obligation, incurred between spouses upon investing part of the shared property into company’s authorized share capital to participate in the authorized share capital, is based on the claim rights. It is noted that since the moment the company is registered with the State Registrar of Companies, such a company becomes a participant of civil law relations. The predetermined contribution (consisting of marital property) invested into the authorized share capital of a corporation becomes the property of the mentioned legal entity and is not subject to shared property of the spouses. Therefore, marital property as joint owned property becomes sole and separate property of the corporation. It has been proved that taking into account the indivisibility and the personalized nature of corporate rights, corporate rights cannot be subject to shared property of the spouses. This statement is supported by the fact that having the other spouse as a shareholder will lead to the increase in the number of shareholders. It has been explained that the legal regime of spouses’ corporate rights is subject to special legal regime, namely transformation of property rights. For that of the spouses who is a company shareholder, the right to property, which is being contributed to the authorized share capital of the corporation, becomes corporate right. For the other spouse, the mentioned above rights become claim rights.

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Attah, Michael. "Divorcing Marriage from Marital Assets: Why Equity and Women Fail in Property Readjustment Actions in Nigeria." Journal of African Law 62, no. 3 (September 19, 2018): 427–46. http://dx.doi.org/10.1017/s0021855318000207.

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AbstractApplicable statutes give Nigerian courts discretion to achieve fairness in marital property readjustment. Ironically, the courts’ approach has often been to adjudicate on the basis of formal title, resulting in a general failure to make any readjustments. This article offers two alternative explanations for this judicial behaviour: absence of a specific statutory marriage-centred definition of matrimonial property; and the courts’ failure to appreciate the implicit matrimonial property regime revealed by a perspicacious interpretation of the statutes. These factors lead the courts to exercise a title-finding jurisdiction instead of an adjustive one. This conservative approach results in the courts exercising an exclusionary prescription of property. These flaws ignore the socio-cultural underpinnings and environment of marriage that support patriarchy in Africa and generally “disable” women in relation to property rights. Sample court cases support this thesis and underscore the need for a statutory definition of matrimonial property, with marriage as its denominator.

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Weisberger, June Miller. "Selected Conflict of Laws Issues in Wisconsin's New Marital (Community) Property Act." American Journal of Comparative Law 35, no. 2 (1987): 295. http://dx.doi.org/10.2307/840391.

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Pakendek, Adriana, and Anni Puji Astutik. "The Model of Implementation 0f Property Distribution After Divorce of Local Wisdom Perspective in Madura." JOURNAL OF SOCIAL SCIENCE RESEARCH 16 (October 19, 2020): 84–92. http://dx.doi.org/10.24297/jssr.v16i.8882.

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This study's purpose is to reveal and determine the implementation model of the distribution of marital property after divorce from the perspective of Madurese local wisdom. This research uses the empirical juridical method; according to Ronny Hanitijo Soemitro, a law that is empirically a symptom of society, on the other hand, can be studied as a variable (independent variable) which causes consequences on various aspects of social life. In social studies, the law is not conceptualized as an independent (autonomous) normative phenomenon, but as social institutions which are associated in real terms with other social variables. The results of this study are: a model for the implementation of post-divorce marital property distribution in the perspective of Madurese local wisdom, with the wisdom of distributing marital assets after divorce by distributing them into several models or forms as follows: (1) following the distribution model according to the positive legal arrangement of Indonesia, namely what is regulated in state law and is decided by the Religious Court, that the distribution of marital assets, namely widows or divorced widowers, each has the right to a half of the marital assets as long as it is not stipulated otherwise in other agreements in marriage. Meanwhile, based on the Article 37 of Law Number 1 the Year 1974 concerning the marriage, if the marriage breaks up due to divorce, marital assets is regulated according to their respective laws. Meanwhile, according to the Civil Code (KUH Perdita), Article 128, after the dissolution of marital assets, their marital assets are divided between husband and wife, or between their heirs, without question of which party the goods originated from. (2) the post-divorce model of the distribution of marital assets in the perspective of Madurese local wisdom is based on the wisdom of each individual soul or soul of a divorced husband and wife. The wisdom of each of these minds or souls is partly rooted in the Madurese community, which in this paper is called wisdom. As part of local wisdom in Madura, the distribution of marital assets is carried out by means of mediation (abeq remember) attended by community leaders.

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Kopylov, Alexander V. "Types of fideicommissa in Roman inheritance law." Vestnik of Saint Petersburg University. Law 12, no. 2 (2021): 477–87. http://dx.doi.org/10.21638/spbu14.2021.214.

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The article analyses the historical process of dividing the original fideicommissum institution into separate types: family fideicommissum, singular fideicommissum and universal fideicommissum. Family fideicommissum appeared in the inheritance law of Ancient Rome due to the legislator’s desire to limit the freedom of disposition of property that a legatee and other members of his family used to have. The aim of such a limitation was to keep the estate within one Roman family. The author concludes that the legal nature of fideicommissum was based on the transfer of the estate’s assets only (and not liabilities) from an heir to a legatee. This led to the gradual unification of bequests and singular fideicommissa in Roman law. The author bases the analysis of peculiarities of universal fideicommissum on its comparison with legatum partitionis. As a result, it is found that there was a fundamental change in the legal nature of universal fideicommissum. A universal fideicommissum was originally based on the singular succession principle, but the Trebellian senate’s decree (senatusconsultum Trebellianum) permitted the transfer of liabilities, which were a part of estate property, from an heir to a legatee as well as assets, thus permitting universal succession. Due to this, the merger of universal fideicommissa with the bequest became impossible and universal fideicommissum retained its independence in the Roman inheritance law. In course of the research, the author uses translations of fragments from the most important monuments of Roman law — the Justinian Novels, which have not been published in Russian before.

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Ernst, Wolfgang. "Roman Law of Property. Origins and Basic Concepts of Civil Law, vol. I." Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Romanistische Abteilung 138, no. 1 (June 1, 2021): 801–2. http://dx.doi.org/10.1515/zrgr-2021-0042.

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Hellwege, Phillip. "Enforcing the liferenter's obligation to repair: Roman law, ' ius commune ' and Scots law." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 79, no. 1 (2011): 81–119. http://dx.doi.org/10.1163/157181911x563066.

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AbstractA liferenter has the right to use the fiar's property. Furthermore, he has the right to possession. Only after the termination of the liferent, the fiar can take up the possession and the use of the property himself. In the meantime, the fiar will want the liferenter to maintain the property, e.g., to carry out repairs. In Roman law, the liferenter was first only under an enforceable obligation to repair if he had rendered the cautio usufructuaria. However, in the further development of Roman law an actio in factum emerged in order to enforce the liferenter's duty to repair even if no cautio usufructuaria had been given. The exact point of time when this actio was developed is unclear. It is suggested that it emerged towards the end of the era of classical Roman law. During the time of the ius commune it was uncontested that the liferenter's duty to repair was enforceable even if no cautio usufructuaria had been given. As a consequence the liferenter did not have to nd caution in every case but only if the liferenter's conduct gave rise to fear a material infringement of the fiar's rights. The cause to revisit the question of the enforceability of the liferenter's duty to repair in its historical development is a decision of the Scottish Court of Session in 2002.

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Sperling, Jutta. "Dowry or Inheritance? Kinship, Property, And Women's Agency in Lisbon, Venice, and Florence (1572)." Journal of Early Modern History 11, no. 3 (2007): 197–238. http://dx.doi.org/10.1163/157006507781147470.

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AbstractThe marital property regimes, inheritance practices, and kinship structures of Renaissance Italy and early modern Portugal were at opposite ends of a spectrum. In Italy, the legitimacy of marriage was defined as the outcome of dowry exchange governed by exclusio propter dotem, thus conceptually linked to the disinheritance of daughters and wives. In Portugal, where the Roman principle of equal inheritance was never abolished, domestic unions qualified as marriages insofar as joint ownership was established. Kinship structures were rigidly agnatic in Italy, but cognatic, even residually matrilineal, in Portugal. An investigation of notarial records from Lisbon, Venice, and Florence shows how women's capacity for full legal agency as property owners in both societies differed. Female legal agency, however, whether measured by women's capacity to engage in property transactions independently of their marital status (Portugal), or as the manipulation of limited legal resources, even resistance against a system of dispossession (Italy), always unfolded within the context of larger agendas that were beyond women's control, such as the processes of state formation in medieval Italy and empire-building in Portugal.

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Alves-Perini, Nell, Margaret Harrison, Helen Rhoades, and Shurlee Swain. "Finding Fault in Marital Property Law: A Little Bit of History Repeating?" Federal Law Review 34, no. 3 (September 2006): 377–98. http://dx.doi.org/10.22145/flr.34.3.1.

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Klein, Elka. "The Widow's Portion: Law, Custom, and Marital Property among Medieval Catalan Jews." Viator 31 (January 2000): 147–64. http://dx.doi.org/10.1484/j.viator.2.300764.

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Alves-Perini, Nell, Margaret Harrison, Helen Rhoades, and Shurlee Swain. "Finding Fault in Marital Property Law: A Little Bit of History Repeating?" Federal Law Review 34, no. 3 (September 2006): 377–98. http://dx.doi.org/10.1177/0067205x0603400301.

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Irawan, Yosi. "Kepemilikan Hak Atas Tanah yang Merupakan Harta Bersama." Lambung Mangkurat Law Journal 3, no. 1 (March 22, 2018): 1. http://dx.doi.org/10.32801/lamlaj.v3i1.64.

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The aims of this research are to analyze the consept of ownership of the land right ownership which constitutes marital property based on the legal regulation on the certificate which mentions the name of the party, and to analyze the legal consequence of the ownership of the land right which contitutes marital property in case in the Land certificate it is stipulated then names of both parties.Government Regulation Number 24 of 1997 concerning Land Registration states that land right can be possessed individually or jointly. It can be owned by more than one person, it can be under the name of a family, two persons not from one descent, and by marriage tie. Land ownership in a marriage tie is called marital property, regulated in article 35, article 36, and article 37 of Act Number 1 of 1974. It can be in a form of a property owned by one of the party and then marged into the marital property as well as the property obtained during the periode of the mariage. To sell such land the husband or the wife must get approval form the spouse. Article 92 of Islamic Law Compilation ( KHI ) stipulates that the husband or wife is not permitted to sell the marital property without the approval of the other party. The problem which often araises with regard to the marital property in a form of land is the fact that the land is registered under the name of the husband or the wife. As long as the couple still live in harmony there will no problem. But when they are divorced, the land is dominated by the party whose name is regitered in the certificate. This problem will not happen if the marital land is registered under the name of the husband and the wife jointly.KEPEMILIKAN HAK ATAS TANAH YANG MERUPAKAN HARTA BERSAMA

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Sukhanov, Evgeniy. "Problems of Property Law in Modern Russian Law." Journal of Russian Law 4, no. 4 (April 11, 2016): 0. http://dx.doi.org/10.12737/18685.

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The article analyzes the progress and further prospects of development of the Russian civil legislation in terms of actual and appropriate improvement of the proprietary legal regulation. The author notes the historical prerequisites of and, substantiates the possible areas for, development of the Russian civil law in terms of traditions of the European private law which originates from the Roman law and the law of pandects; in this connection, the author substantiates the necessity for systemic development of the legislative regulation of limited proprietary rights. In line with the existing specific features of legal regulation of proprietary relations in the Russian law, the author considers advantages of regulation of rights to land plots, which are in the public domain, by means of forms and types of limited proprietary rights; in this connection, the author demonstrates inefficiency of extending mechanisms of law of obligations only, mainly the models of lease contracts, on land relations. The author analyzes differences between legal regulation of homogeneous relations within the civil legislation and the land legislation as a temporary phenomenon and a feature of the transitional stage in the development of the Russian civil legislation.

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Nevzgodina, Elena, and Natalia Temnikova. "On the Prospects for the Development of the Institution of Joint Property of Spouses." Herald of Omsk University. Series: Law 17, no. 3 (October 19, 2020): 109–12. http://dx.doi.org/10.24147/1990-5173.2020.17(3).109-112.

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Introduction. The review presents A. A. Dobrovinsky’s monograph “Problems of property relations in family law of the Russian Federation: theory, practice and law reform” (Moscow: Eksmo, 2020. 208 p.), devoted to theoretical and practical problems of the legal regime of marital property. The monograph illuminated a number of topical and problem issues of the theory and practice of family disputes concerning common property of spouses, such that circumvented proper attention in the science of family law and cause significant difficulties in the judicial practice: the issues of presumption of spousal consent for the transaction with the common property and the fixing of this agreement, especially in business assets, stocks and shares and also “beneficial ownership” of spouses. Conclusion. The monograph can be recommended not only for the purposes of further development of the science of family law, but also for family law and law enforcement. Written in a lively and clear language, with a remarkable logic of presentation, it is undoubtedly also recommended for use in the educational process, as an indicator of the current state of disputes over the division of marital property.

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Tsujimura, Kazusuke, and Masako Tsujimura. "Roman law in the national accounting perspective: Usus, fructus and abusus." Statistical Journal of the IAOS 37, no. 2 (June 3, 2021): 613–28. http://dx.doi.org/10.3233/sji-210810.

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Application of accounting discipline to the organization of economic data aids in both collection and interpretation of economic and jurisprudential knowledge, for it highlights gaps in the basic statistics and clarifies interrelations among the parts of the structure. The legal systems of nearly all countries are generally modeled upon four legal systems: Mesopotamian law, Roman law, Islamic law and Anglo-Norman law. The first half of the paper compares the four legal systems in detail. The foundation of any accounting system, including national accounting, is a balance sheet that lists assets and liabilities; assets include both property rights and claims while liabilities are legal responsibilities and obligations. Therefore, special attention is given to the Roman law of things, which has furnished the foundations of much of the modern law of property and obligations in civil law systems. Usus, fructus and abusus have been recognized as pillars of private property since the antiquity. Although the concepts are intrinsic to property rights, they are useful tools to delineate the characteristics of claims and obligations. Some accounting examples are given at the end of the paper.

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Stojanović, Stefan. "Roman property law in comparative analysis of the Institutes of Gaius and the Institutes of Justinian." Zbornik radova Pravnog fakulteta, Novi Sad 54, no. 1 (2020): 503–18. http://dx.doi.org/10.5937/zrpfns54-23148.

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In this paper comparison of the provisions of Roman property law in the Institutes of Gaius and the Institutes of Justinian has been made. The aim of this paper is to find out which provisions of the Institutes of Gaius were reciprocated in the Institutes of Justinian, and which were not, and whether certain provisions were taken with modification and what the modification consists of. In this way, it will be determined which institutes of Roman property law remained unchanged until Justinian's time, which underwent changes, and which, due to changes in social relations, don't exist anymore. The comparative method will analyze the most important legal concepts and institutes of Roman property law from the Institutes.

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Mayer-Maly, Theo. "Peter Birks (Ed.), New Perspectives in the Roman Law of Property." Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung 107, no. 1 (August 1, 1990): 622–24. http://dx.doi.org/10.7767/zrgra.1990.107.1.622.

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Alexander Lee. "Roman Law and Human Liberty: Marsilius of Padua on Property Rights." Journal of the History of Ideas 70, no. 1 (2008): 23–44. http://dx.doi.org/10.1353/jhi.0.0022.

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Platschek, Johannes. "Ex iure manum conserere: Symbolic violence in early Roman property disputes." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 74, no. 3-4 (2006): 245–60. http://dx.doi.org/10.1163/157181906778946047.

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AbstractThe technical term ex iure manum conserere known from the formulas of the old Roman procedure concerning ownership (legis actio sacramento in rem) means – exactly as in the words' common use – 'to come to blows according to the law'. It signifies an act of mutual violence regarding the thing in dispute for the purpose to prepare a trial. The judicial decision about who was entitled to use force is indirectly an acknowledgment of ownership. The terminology is in line with other institutes of Roman law, and there are parallels in Greek law. In contrast, Gellius interprets ex iure in opposition to in iure and therefore as 'out of court'. He explains manum conserere with reference to the procedure as it had already developed, viz. 'to seize the object jointly and claim it with the prescribed wording'. But his reconstruction is neither consistent nor supported by any other evidence.

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Salma, Jožef. "On the contracts related to matrimonial property." Glasnik Advokatske komore Vojvodine 74, no. 9-10 (2002): 339–50. http://dx.doi.org/10.5937/gakv0211339s.

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Positive law in Serbia does not provide for the possibility of a marital agreement. After the comparative analysis, the author suggests that the introduction of this type of contract into our legal system would certainly prevent a number of equitable distribution disputes. If this type of contract was introduced, it would certainly promote the free will of spouses as well as the advantages of having the separate property.

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Pokora, Andrzej. "ASSERTING CRIMINAL LAW CLAIMS ON BEHALF OF THE STATE TREASURY FROM CONVICTS BOUND BY THE JOINT MARITAL PROPERTY REGIME." Roczniki Administracji i Prawa 2, no. XVIII (December 30, 2018): 245–58. http://dx.doi.org/10.5604/01.3001.0013.1794.

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The article covers the terms and scope of liability of convicts from their personal property and from the joint property when they are bound by the joint marital property regime. In the first place, problems of a convict’s liability from the personal property is discussed. Then, the possibility of the convict’s liability from the joint property is presented. Finally, the article discusses problems of limiting or excluding the liability under art . 28 of the Executive Penal Code and the impact of a change in property relations between spouses on the conduct of execution of criminal law liabilities.

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Danarta, Kadek Setyawan. "KARAKTERISTIK PEMASANGAN HAK TANGGUNGAN TERHADAP HARTA PERKAWINAN." JURNAL MEDIA HUKUM DAN PERADILAN 5, no. 2 (October 30, 2019): 161–74. http://dx.doi.org/10.29062/jmhp.v5i2.84.

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In essence the law is the realization of the protection of the interests of the community. Regarding Marriage Assets Law between husband and wife regulated in the Marriage Law has different legal principles from the Civil Code, so that in its application, Marriage Assets Law is subject to two legal systems, namely Marriage Assets Law based on Civil Code and Wealth Law Marriage based on the Marriage Law. The purpose of this thesis article is about the problem, the legal position of marital property in a household if it is used as a mortgage and the implementation of the mortgage rights to the marriage assets. In this article research uses a normative juridical method with an empirical juridical approach to refer to Law No. 1 of 1974 concerning Marriage. The results of the study basically if there is a marriage there will be a mixture of wealth between husband and wife, if the marriage is not accompanied by a marriage agreement, between the two parties there will be a round of wealth. (1) The legal status of marital property in a household if it is made a mortgage or legal property of marriage in jurisprudence has been accepted by the principle of transitory law. (2) Then the implementation of the installation of mortgages to marital assets must always be approved by both parties both husband and wife. While the granting of mortgages is preceded by a promise to provide mortgages as collateral for repayment of certain debt, which is stated in and is an integral part of the debt agreement.

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Mulia, Riza. "Marital Beslag Outside Divorce Lawsuit in the Maqashid Syari’ah Perspective." Samarah: Jurnal Hukum Keluarga dan Hukum Islam 4, no. 2 (December 28, 2020): 398. http://dx.doi.org/10.22373/sjhk.v4i2.7052.

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The law of marriage seeks to protect joint property in the marriage bond with the hope that a quality family can be formed without any problems. Rules in law provide various reasons for formal legal guarantees for the protection of joint assets. This reason also does not escape the view of Islamic law through maqashid syar'iyah. This paper uses a normative approach. The focus of the problem in this paper is the objective of applying marital beslag outside of a divorce suit from the viewpoint of maqashid syar'iyah. The results showed that the provisions for marital beslag outside of a divorce suit were intended to maintain human needs from the financial aspect of the family that could sustain the family. In this context, protection of property helps maintain relationships between individuals (families) through the meaning contained in the text, where confiscation contains an element of family care which is also the goal of the maqasid.

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Cioclei, Valerian. "Proprietatea în dreptul penal roman. Mijloace de protecție, noțiune și obiect." Analele Universitării din București Drept 2019 (March 26, 2020): 66–71. http://dx.doi.org/10.31178/aubd.2019.07.

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The property right is guaranteed by the Romanian Constitution and by the international conventions, especially by the European Convention of Human Rights. Concretely, the Civil Code protects the property right. In a subsidiary manner, after the constitutional, conventional and civil law, the criminal law also ensures the protection of property. This brief article will reveal the means in which such protection is ensured within the Romanian Criminal Code, as well as the concept and the object of such criminal protection.

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Hanley, Sarah. "“The Jurisprudence of the Arrêts”: Marital Union, Civil Society, and State Formation in France, 1550–1650." Law and History Review 21, no. 1 (2003): 1–40. http://dx.doi.org/10.2307/3595067.

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During the 1500s and 1600s when state building in France depended on the government's ability to staff administrative and judicial offices, prime candidates emerged from the famous law schools. Steeped in new research methods favoring a documentary base, Jurists focused legal studies on the French past, rather than a Roman one, and fostered historical and comparative views of society, law, and nation. Searching in archives for customs and laws, they wrote histories tracing the development of French institutions, including the Parlement of Paris, and devised civic rituals to articulate French constitutional precepts in that court. Practicing law as well, they collected “notable arrêts” (judicial decisions) on questions of law, advanced legal theories and legislative projects, and facilitated the circulation of legal knowledge within a general public caught up in judicial activism born of social change and political necessity. By challenging operative facets of two great legal systems in the western world, Roman law and Canon law, and by amending French Customary law, they developed a system of “French jurisprudence” and legally framed a “civil society” that underwrote the claim to political sovereignty as a nation.

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Biryukov, Alexander Alexandrovich. "Evolution of limited property rights in Roman, European and domestic civil law." Аграрное и земельное право, no. 1 (2021): 34–37. http://dx.doi.org/10.47643/1815-1329_2021_1_34.

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Radovanović, Snežana. "Free citizens, democracy: Assumptions of the application of Roman law." Megatrend revija 17, no. 4 (2020): 41–48. http://dx.doi.org/10.5937/megrev2004041r.

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Majority of the nowdays societies consider that spreding of democracy, rather than limitation of state power, preserves freedom. This idea is in the contrary to antic idea of freedom as the essence of human being and its highest value. By such an idea, the society will be preserved from negative tendencies like democratic despotism (glorifiing power and authority as well as concetration of power in the hands of the leader), and decline of the highest values in global society. In antic polis ius civile used to be applied to free citizens only, rather than strangers, being slaves. As slaves, strangers had no any right recognised, and were acquisited like any other property. Slavery in Roman empire was considered as normal phenomena and was also approved mostly by social and biologic reasons. Ius gentium was, however, by spreading Empire to provncies, apllied to both citizens and strangers. Antic polis produced direct democracy, being ruling of the people, which was duty as well as the priviledge of the free citizens, thus, the priority were public obligations. Nowdays, however, democracy is considered individually, as a protection of individual, its property and private life.

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Nazar, Mirosław. "Glosa do uchwały Sądu Najwyższego z dnia 19 października 2018 r. (III CZP 45/18). Surogacja składników majątków osobistych małżonków w ustroju wspólności ustawowej." Studia Iuridica Lublinensia 29, no. 3 (June 30, 2020): 267. http://dx.doi.org/10.17951/sil.2020.29.3.267-276.

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<p>The gloss contains remarks on the resolution of the Supreme Court of 19 October 2018 (III CZP 45/18), according to which an item acquired under the joint marital property regime and financed partly from the funds derived from the personal property of one of the spouses and from their joint property becomes the personal property of the spouse concerned and the joint property of the spouses in the proportion corresponding to the proportion of the funds allocated from those assets for its acquisition, unless the funds from the personal property or the joint property transferred for the acquisition of the property was an expense towards the joint or personal property, respectively. The gloss states that the rules of civil law concerning the formation of fractional joint ownership and the regulation of the joint marital property do not justify the thesis supported in the commented resolution. The conclusion of the gloss contains a proposal for interpretation that is different from that put forward in the resolution of the Supreme Court. It must be assumed that an asset acquired by both spouses or by one of them during the period of their joint marital property in exchange for funds derived from the joint property and personal property of one of the spouses becomes <em>ex lege</em> a component of the joint property of the spouses, unless, under the agreement of the spouses, it is acquired as a fractional joint property, one share of which goes to the joint property and the other to the personal property.</p>

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Parkinson, Patrick. "Constitutional Law and the Limits of Discretion in Family Property Law." Federal Law Review 44, no. 1 (March 2016): 49–75. http://dx.doi.org/10.1177/0067205x1604400103.

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The argument of this Article is that the width of discretion that trial judges have to alter property rights under the Family Law Act 1975 (Cth) (‘the Act’) has been overstated. The property aspects of the Act can only be valid to the extent to which the law is an appropriate application of the marriage and divorce powers in the Constitution or is within the boundaries of the States’ reference of powers about de facto relationships. These constitutional provisions place significant constraints upon judicial discretion. In relation to marriages, the need to adjust property rights must result from the circumstances of the marital relationship or be justified as a consequence of the financial impact upon a party of its breakdown. The authority of Parliament to make laws concerning the alteration of the property rights of de facto partners is limited to cases of relationship breakdown. Furthermore, the Family Court of Australia and the Federal Circuit Court of Australia are both Chapter III courts. That has implications for the kind of discretion that Parliament can lawfully confer upon the trial judge, and the limits of that discretion. Some recent dicta and decisions of the Full Court of the Court suggest a view of judicial discretion which, it is argued, is inconsistent with the nature of judicial power in a Chapter III court. The discretion of trial judges is fettered by three duties: The duty to follow the interpretation of the Act as established authoritatively by appellate decisions, taking account of guidelines in appellate judgments; the duty to give reasons that explain the outcome of the case, and in particular, to justify the alteration of legal and equitable interests in specific items of property; and the duty to avoid arbitrary and capricious decision-making. The current jurisprudence on family property law is not necessarily consistent with these constitutional limitations.

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Truchan-Matłok, Magdalena. "MARITAL INTERDEPENDENCE IN A BUSINESS CONDUCTED AS PART OF A CIVIL LAW PARTNERSHIP AND A COMMERCIAL PARTNERSHIP." Roczniki Administracji i Prawa 1, no. XIX (June 30, 2019): 383–99. http://dx.doi.org/10.5604/01.3001.0013.3611.

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The author discusses the concept of marital interdependencies while running a business in the form a civil law partnership and a commercial partnership. Firstly, a brief outline of the issues in question is provided. The second chapter presents the characteristics of joint ownership. The third chapter discusses the spouse as an entrepreneur in a civil law partnership. The fourth chapter is the continuation of the previous chapter, extended to include the concept of a civil law partnership entered into by one of the spouses prior to the establishment of statutory community property regime and following the establishment of statutory community property regime. The fifth and sixth chapters are preoccupied with the spouse’s position in a commercial partnership and partnership rights appurtenant to marital properties. The article’s summary refers to the differences arising in the spouse’s joint ownership in a civil law partnership and a commercial partnership. Several conclusions have been drawn in the summary.

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Bannon, Cynthia. "Fresh Water in Roman Law: Rights and Policy." Journal of Roman Studies 107 (August 18, 2017): 60–89. http://dx.doi.org/10.1017/s007543581700079x.

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ABSTRACTFresh water came from a variety of sources, streams and springs as well as aqueducts. Much of the Roman law on fresh water concerns its supply, regulating rights to use it with a variety of legal institutions from public and private law (e.g. ownership, servitudes, interdicts). The study of fresh water has usually followed the legal categories, segregating the public water supply from water that was private property, and consequently segregating different types of evidence. In this paper varied evidence is analysed using the ‘bundle’ approach, an analytical framework from legal scholarship on rights in the environment, in which water rights are not monolithic but are represented by component rights, including rights of access, withdrawal, management, exclusion and alienation. Analysing component rights in fresh water reveals significant continuities in the Romans' regulation of it and the impact of this regulation. Although there was no centralized water administration in the early Empire, Romans took a systematic approach to regulating fresh water based on consistent working principles and policy priorities.

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Gardner, Jane F. "The Recovery of Dowry in Roman Law." Classical Quarterly 35, no. 2 (December 1985): 449–53. http://dx.doi.org/10.1017/s0009838800040283.

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The recent article by R. P. Saller on Roman dowry in the Principate makes some interesting and important suggestions about the function of dowry and its role in the devolution of property. I am in broad agreement with a good deal of what he says, and would not dispute his views that dowry was, as shown by the requirement of collatio dotis, regarded as in a sense part of a woman's patrimony, and that the rules for the recovery of dowry show that the purpose of giving dowry was not held to rest on one single principle, but included provision both for the expenses of the wife's maintenance during marriage and for a possible remarriage after divorce or widowhood. However, his remarks on both points need some qualification and amplification. Briefly, I hope to show (i) that the oddities and anomalies noticed by Saller in the rules governing the recovery of dowry at the end of a marriage are apparent rather than real, since these rules rest, not on conflicting views about the purpose of dowry, but on the fact that the husband had full legal ownership of the dowry during marriage, together with the right of the wife or her pater to an actio rei uxoriae for recovery of dowry; (ii) that the rules for collatio dotis applied only if the woman herself chose to claim a share in her father's estate on intestacy beyond the amount of her dowry; (iii) that the use of the dowry for the wife's support was an equitable, rather than a legal, requirement.

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Misztal-Konecka, Joanna. "ZAKAZ KAZIRODZTWA W PRAWIE RZYMSKIM I PRAWODAWSTWIE KOŚCIELNYM (III-VI W.)." Zeszyty Prawnicze 11, no. 1 (December 21, 2016): 215. http://dx.doi.org/10.21697/zp.2011.11.1.12.

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THE PROHIBITION OF INCEST IN ROMAN LAW AND CHURCH LEGISLATION (III-VI) Summary Roman Law enlarged the number of marital prohibitions based on kinship and affinity in the period from the end of third century to sixth century: there were prohibited marriages with nieces, between consobrini, and between related in the second degree of affinity in the collateral line. It is important to observe that only two Roman Church synods – in the period from the end of third century to sixth century – took into consideration incest problem. The Synod of Elvira (circa 295-306) banned the connection with the deceased wife’s sisters and with the stepdaughters. The Synod in Neocesarea (circa 314-319) excluded the successive woman’s marriage with two brothers. The influence of the Church law cannot explain the sharpening of Roman legislation applied to incest, neither the influence of bishops like St. Ambrose can explain emperors’ decisions. It should be rather assumed that pagan sexual morals became stricter under the influence of new political elites and stoicism.

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Belintxon Martin, Unai. "Comentario al Auto de la Audiencia Provincial de Islas Baleares (Sección 4ª) núm. 54/2018, de 10 de abril. Un apunte sobre la prueba del Derecho extranjero en un procedimiento de medidas cautelares = Audiencia Provincial (Court of Appeals) of the Balearic Islands, 4th section. Commentary to the judicial decree 54/2018 of April 10th, 2018. Note to the proof of foreign law in a procedure regarding precautionary measures." CUADERNOS DE DERECHO TRANSNACIONAL 11, no. 1 (March 11, 2019): 685. http://dx.doi.org/10.20318/cdt.2019.4640.

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Resumen: Interposición de Recurso de Apelación frente a Auto de instancia que deniega el establecimiento de medida cautelar (anotación preventiva de demanda) con la finalidad de evitar la enajenación de la vivienda conyugal tras la disolución del matrimonio por uno de los cónyuges y que impone el abono de las costas procesales al solicitante de la medida.Palabras clave: disolución del matrimonio, costas procesales, medida cautelar, enajenación de vivienda conyugal, aplicación de Derecho extranjero, prueba del Derecho extranjero.Abstract: Bringing an appeal against the judicial decree that denies the establishment of precautionary measures (provisional record of the claim) aiming at the avoidance of the marital property sale after the dissolution of marriage and declares the imposition of the court costs to its petitioner.Keywords: dissolution of marriage, court costs, precautionary measures, marital property sale, the application of foreign law, proof of foreign Law.

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Verhagen, H. L. E. "'Verfallpfand' in early classical Roman Law: real security in the archive of the Sulpicii." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 79, no. 1 (2011): 1–46. http://dx.doi.org/10.1163/157181911x563048.

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AbstractThe writing tablets discovered in 1959 near Pompeii (Tabulae Pompeianae Sulpiciorum or Tabulae Pompeianae Novae) provide a unique and extremely valuable insight into the 'law in action' in the Roman Empire of the first century AD. In particular, these tablets allow us to assess the functioning of the law of secured finance, as it was applied by the Sulpicii family and other commercial lenders in the seaport town of Puteoli (Pozzuoli). The focus of this article is on the enforcement of a right of pledge in case of default by the debtor. In particular, it discusses whether the creditor then acquired ownership of the pledged property or whether he was only entitled to suspend his obligation to return the pledged property to the debtor. It is argued that the most likely interpretation of the writing tablets is that the creditor acquired ownership when the debtor defaulted and that this enabled him to sell the property at auction or otherwise.

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Journal articles on the topic 'Marital property (Roman law)'

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