Karel
Schelle - Ilona Schelleová
The
Faculty of Law of the Masaryk University, Brno, Czech Republic
The conception of a thing in the European law
Our paper deals with the issues of the conception and
definition of a thing not only within the “European civil law“, but also in
connection with the legal regulations of this legal institute in other systems
of law of selected European countries.
European private
law keeps trying to create and unite different conceptions of individual legal
categories, systems and concepts. It can be understood as “ius commune “, which
is by many experts said to represent the basis of individual legal principles,
especially then of the common rules in individual countries with the
continental system of law, as well as in countries with the Anglo-American
system of law.
There has been a
continuous discussion about the conception of things and their parts since the
times of the Roman Empire. It has not therefore surprised anyone that, over the
last few years, an ample discussion concerning this issue was held also in
connection with the preparation of the “European Civil Code“, which often
brought divergent opinions and sometimes very interesting viewpoints. A more
elaborate version of the “European Civil Code“ should probably appear by the
end of this year (2007). It should be noted in this context that the European
Parliament made already in the year 1989 attempts to create a civil code and
that these attempts continued also in the following years. In November 2004 was
submitted the motion of the “European Civil Code“, where in Heads VIII. and IX.
can be found provisions concerning things and related rights. This concerns
primarily property rights to things and institute of their legal protection
across individual European countries.
As already stated
above, this year one can expect another proposal of a more complex version of
the new “European Civil Code“, which will be in accordance with the principles
of the European Private Law, the main aim of which is to create common legal
principles and a legal terminology acceptable for the area of both the
Continental and the Anglo-American Legal System.
From a comparison
with our legal conception of thing in the Civil Code in force is evident that
the basis for this legal regulation was not only the continental conception,
but also the conceptions contained in the Civil Codes, primarily from years
1937 (draft bill of the upcoming Civil Code) and 1950. It is certainly
interesting that the legal conception of a thing contained in the Civil Code
from year 1950 was significantly influenced by the German legal regulation, as
well as by the Soviet legal regulation.
The current legal
definition of a thing can be described as a positive definition, just as within
the frame of the European Private Law. The upcoming “European Civil Code“treats
thing as an object that serves people. Besides that, it also defines a thing as
an object, which is affected by subjective property rights, primarily then the
right of ownership, which has a specific position in the reference of the
Continental Law, a part of which is also the Czech system of law.
An opposite opinion concerning this issue was
presented by the group of Spanish experts who regard a thing in the sense of
its controllability and its capacity to be appropriated. This formulation means
that everything that is a certain object in the legal sense and that can be
controlled and appropriated has to be considered a thing. However, an essential
criterion is the fact of direct usefulness and necessity. Another is the
definition contained in the Spanish Civil Code follows that things in the legal
sense are for example also air, the Sun, the Earth's core, etc., which can
certainly be considered interesting, when compared with our system of law. The
Spanish experts extend the conception of a thing to include its controllability
and capacity to be appropriated. A reference to this conception can be found in
the clause 334 of the Spanish Civil Code, which connects the
characteristics of a thing with its capacity to be owned and controlled. The
representative and supporter of this opinion is the top Spanish expert in the
field of the Civil Law Malanga.
A different
conception of a thing can be seen for example in the Italian Civil Code,
primarily in the clause 810, where a thing is connected with its capacity to be
a subject-matter (which excludes for example air, light, etc.). Similar legal
deliberations can be found for example also in the Civil Codes of the European
Nordic countries, as well as for example in the Swiss Civil Code.
A part of the
discussion concerning the upcoming “European Civil Code“ is a disputation about
how to express the price of the given thing (the form of money, where for each
thing can generally be obtained a monetary counter-value, is impermissible,
with a few exceptions, barter and similar kinds of businesses). One can
encounter in our Civil Code the delimitation of price (in monetary units) of a
thing in the General Provisions. The situation is similar also in the
case of the “European Civil Code“ draft, which deals with the issue of
determining the price of a thing in its General Provisions in Heads I. – III.
This issue has been treated in more detail also by the group working on the
general legal framework of the future European Civil Code. Apart from other
things, they lay emphasis on the fact that there may exist also things, the
price of which cannot be expressed in money, not even for example by an
assessment, which is why they suggest determining what a market price of a
thing is, and at the same time that determination of this market price is a
general rule. Moreover, it is necessary to determine within the framework of an
exceptional price the exact criteria that will be decisive for determination of
the exceptional price of a thing. This general determination of price, of the
general principles that determine value of a thing in money, is extremely
important for the European Contract Law, and/ or for uniform rules and uniform
formulation of price in the contracts.
However, the
“European Civil Code“ in preparation provides also a negative definition of
things. This negative definition of things should manifest itself also in the
future proposed modification of the Czech Civil Code. The experts who work
on the general legal framework of the Civil Code apart from other things in
accordance with the established legal tradition define that things shall not
include the human body as well as its individual parts. From this formulation
can be educed that neither human nor his dead body or parts of the human body
are, in the legal sense of that term, things. This requirement respects apart
from other things not only the general legal and moral principles, but also the
principles that follow from the European constitutional law.
A very questionable
topic is the problem, whether to consider live animals things. Animal, either
live or dead, is considered according to the conception of the Czech Civil Code
a thing. However, a live animal is not according to the European legal
regulation a thing, yet it respects the fact that if some special laws
determine something else, the general provisions about things in the legal
sense have to retreat. Individual legal regulations of the European countries
regard this issue differently. The regulations of the Austrian Civil Code, as
well as the German Civil Code and legal regulation of some other countries,
such as Poland, Russia and Spain, are in accordance with the statement that a
live animal is not a thing.
Of cardinal
importance is considered the conception of classification of things that is in
the draft of the “European Civil Code“ defined both in the General Provisions,
and in its other parts. The European conception of classification of things in
the most general legal sense is a classification into tangible and intangible
things. This is done by determining the criteria for tangible things; the
things that do not suit the definition of a tangible thing are considered
intangible.
This means that one
goes from many legal regulations. In this respect, it is necessary to remind
about the legal regulation contained not only in the Austrian Civil Code, but
also for example in the Swiss Civil Code or the Italian Civil Code. Entirely
specific is the discussion concerning the legal character of energies. The
experts have finally decided in favour of the opinion that energies should be
considered as movable things, which is in compliance with for example the Czech
legal regulation, which is based on the established Austrian regulation.
The European
conception of immovable things is basically identical to the Czech legal
regulation, although there are several differences, such as with the term
“immovable things”, which applies also to some rights, such as the building
right in the case of real estates. A similar regulation can be found also in
the clause 311 of the Swiss Civil Code.
The European legal
regulation specifically deals with fungible and non-fungible things. Fungible
things are in some European systems of law called also consumables (e.g. the
Russian legal regulation), yet besides their capability to be consumed, one has
to lay emphasis on their further processibility, or the fact that they are
meant for sale. This is related also to some regulations of the European
Commercial Law, but also to the consumer protection laws, which are of high
importance for the European law, and which have to be included in the system of
the so called “European Civil Law“. Typical fungible things comprise food,
raw-materials, material meant for further usage, warehouse goods, etc. The
experts include in the group of fungible things also money. An important aspect
is the fact that into the group of fungible things belong only movable things.
The discussion about substitutability of things seems to be heading towards the
opinion that the individuality of a substitutable thing does not matter, as it
can be substituted by another thing of the same kind and in the same amount.
However, immovable things are always unsubstitutable.
The European
regulation supplements in the conceptual determination of a thing also the
regulation concerning the parts of a thing. These regulations are naturally also
a part of our Civil Code. The opinions of the experts about what is and what is
not part of a thing concur. This follows from the character of a specific thing
on the one hand, and from the specific risk of depreciation of the whole due to
separation of a thing on the other hand. These facts are to be considered from
various viewpoints (economic, educational, etc.).
A special
regulation on real estates and parts of immovable things has been newly
formulated in comparison with the original draft from the year 2004. These
regulations, which will naturally later be adopted also by the Czech Civil Code
in preparation, are naturally based on the principle superficies solo credit
and respect generally accepted principles of most systems of law within the European
Union. The draft enables the reservation of separate property for machines and
other devices that are firmly connected to the immovable thing, but belong to
another owner than the owner of the real estate. Further it pursues a solution
that corresponds to the European standards and provides a practical solution to
the cases of purchase of a machine, a device linked for example with a
reservation of ownership right or a machine on lease purchase.
In conclusion, one
can state that the conception of a thing within the framework of the “European
Civil Law“ brings many modern innovations in comparison with the current state
of the Czech legal regulations and that in the future it will introduce into
the Czech system of law not only further unifying elements, but also a wide
range of modern European trends, which are common in the countries of the
European Union.
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Arthur Taylor
von Mehren and James Russell Gordley, The Civil Law System, 4th
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John Henry
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John Henry
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The Swiss Civil
Code
The German Civil
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The French Civil
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The Spanish Civil
Code
http://www.sgecc.net/pages/en/texts/index.draft_articles.htm
http://www.elsi.uos.de/pages/en/home/index.htm