The Law of Obligations in Central and Southeast Europe

Recodification and Recent Developments

Zvonimir Slakoper, Ivan Tot

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000415421
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Law of Obligations in Central and Southeast Europe examines the new codifications, reforms, and other recent developments in Central and Southeast Europe which have significantly modernized the law of obligations in the last two decades, focusing particularly on the legal systems of Poland, Czech Republic, Slovak Republic, Hungary, Slovenia, Croatia, Serbia, and Turkey.

With chapters authored by prominent academics and promising young legal scholars, this book discusses the results of the modernizations and describes the legislative reforms of the law of obligations that are underway or are discussed and advocated for in the countries of Central and Southeast Europe. Divergences of the new civil codes and other legislative acts from earlier legal solutions are identified and the rationale behind these departures is analysed, as well as the introduction of the new legal institutes in the law of obligations in these parts of the world. The Introduction provides a concise country-by-country overview of the recodification, modernization, and reform of the law of obligations in Central and Southeast Europe. In Part I, chapters discuss the process of recodification in the Slovak Republic, Czech Republic, Poland, and Hungary, with focus on the main novelties in their contract and tort law. The chapters in Part II then discuss several, more specific legal institutes of the law of obligations, and other recent developments and contemporary challenges to the law of obligations in the Czech Republic, Slovenia, Croatia, Serbia, and Turkey.

This book is of interest to legal scholars in the field of private law, as well as to students, practitioners, members of law reform bodies, and civil servants in Central and Southeast Europe, and beyond.

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Recodification and recent developments in the law of obligations in Central and Southeast Europe

Zvonimir Slakoper and Ivan Tot

1 Introduction

In the last twenty years, the law of obligations in many European countries was significantly modernized, while in several the legislative reform of the law of obligations is either underway or is being actively discussed and advocated. The new ‘wave of reforms’ ¹ of the law of obligations has covered not only the countries with a longstanding tradition of civil law codification but is also spreading throughout Central and Southeast Europe. So far, the twenty-first century in this part of Europe truly is the ‘recodification era’, ² with several countries replacing their civil codes with the new ones, and other planning to substantially rewrite them, while many countries with uncodified civil law being underway to enact a civil code for the first time in modern history. The reform of the law of obligations is a significant part of both the recodification and codification efforts. Even in those countries where these processes are not existent, the law of obligations was recently reformed.

1 Reiner Schulze, ‘Changes in the Law of Obligations in Europe’ in Reiner Schulze and Fryderyk Zoll (eds), The Law of Obligations in Europe: A New Wave of Codifications (SELP 2013) 3.

2 Julio César Rivera, ‘The Scope and Structure of Civil Codes: Relations with Commercial Law, Family Law, Consumer Law and Private International Law: A Comparative Approach’ in Julio César Rivera (ed), The Scope and Structure of Civil Codes (Springer 2013) 17. See also Péter Cserne, ‘The Recodification of Private Law in Central and Eastern Europe’ in Pierre Larouche and Péter Cserne (eds), National Legal Systems and Globalization: New Role, Continuing Relevance (Springer 2013) 45ff; Ewoud Hondius, ‘Recodification of Private Law in Central and Eastern Europe and in the Netherlands’ [2014] (1) ELTE LJ 51.

Under the umbrella of ‘Central and Southeast Europe’, the following groups of countries are covered here: (i) the three Baltic states: Estonia, Latvia, and Lithuania; (ii) the four Visegrád Group states: Poland, Czech Republic, Slovakia, and Hungary; (iii) the seven states of the former Yugoslavia: Slovenia, Croatia, Bosnia and Herzegovina, Serbia, Montenegro, Kosovo, and North Macedonia; and (iv) the remaining three Southeast European states: Romania, Bulgaria, and Albania. Turkey, which belongs to Southeast Europe only partly, is also discussed within the fourth group.

This introductory chapter aims to provide a concise country-by-country overview of the recodification, modernization, and reform of the law of obligations in Central and Southeast Europe, as well as to present the issues which are analysed more thoroughly in the following chapters. In the final remarks to this chapter, some common features of the law of obligations in Central and Southeast Europe are identified.

2 The law of obligations in the Baltic states

After regaining their independence in the Baltic Revolution of 1991, Estonia, Latvia, and Lithuania were among the first of the post-socialist European countries to endeavour to recodify their civil law. The period during which they were part of the Soviet Union was viewed in all three states as a period of discontinuity with their earlier civil law, thus all three states decided to abolish the socialist civil codes adopted during the Soviet occupation. Yet, the process of recodification occurred differently in the three Baltic states.³

3 Cserne (n 2) 54; Norbert Reich, ‘Transformation of Contract Law and Civil Justice in the New EU Member Countries: The Example of the Baltic States, Hungary and Poland’ (2004) 23 Penn State Intl L Rev 587, 594–95.

2.1 Estonia

Estonia opted to proceed with a step-by-step codification of its civil law, instead of enacting the earlier draft civil code from 1940.⁴ Between 1993 and 2001, five separate laws were enacted which function together as one civil law codification and govern the general part of civil law, property law, family law, the law of succession, and the law of obligations. The Law of Obligations Act (Võlaõigusseadus, ⁵ VÕS) was adopted in 2001 and entered into force on 1 July 2002. On the same day, the revised version of the General Part of the Civil Code Act (Tsiviilseadustiku üldosa seadus, ⁶ TsÜS), adopted in 2002, also entered into force.

4 Cserne (n 2) 54–55; Reich (n 3) 595. For a historical overview see Irene Kull, ‘Codification of Private Law in Estonia’ in Julio César Rivera (ed), The Scope and Structure of Civil Codes (Springer 2013) 134–39.

5 RT I 2001, 81, 487, as later amended.

6 RT I 2002, 35, 216, as later amended.

TsÜS was drafted primarily under the influence of the German and Swiss law, with several notable concepts, such as the rules on mistake and fraud, developed based on UPICC and PECL.⁷ VÕS is based on the comparative study of the German BGB, Swiss OR, and Dutch BW, with influences from PECL and UPICC.⁸ Also, various other jurisdictions have been taken into account, ⁹ as well as CISG and several other international conventions.¹⁰

7 Kull, ‘Codification’ (n 4) 142. See also Paul Varul, ‘Legal Policy Decisions and Choices in the Creation of New Private Law in Estonia’ [2000] Juridica Intl 104, 111–12.

8 Varul, ‘Legal Policy’ (n 7) 114; Irene Kull, ‘Reform of Contract Law in Estonia: Influences of Harmonisation of European Private Law’ [2008] Juridica Intl 122, 127–28.

9 These include the German HGB and the Czech Commercial Code, as well as the civil codes of Italy, Russia, Louisiana, Quebec, and Japan, and the private law sources of the Scandinavian countries. See Villu Kõve, ‘Applicable Law in the Light of Modern Law of Obligations and Bases for the Preparation of the Law of Obligations Act’ [2001] Juridica Intl 30, 36; Kull, ‘Codification’ (n 4) 143; Varul, ‘Legal Policy’ (n 7) 114.

10 See Kõve (n 9) 36; Kull, ‘Reform’ (n 8) 128.

The monistic concept was adopted in VÕS, thus the regulation of commercial transactions, as well as consumer transactions, is not found in separate codes.¹¹ VÕS consists of a general part which governs the general principles of the law of obligations and the rules of general contract law ¹² and a special part which includes regulation of the specific types of contracts and the extra-contractual obligations.¹³ The modern contract types, such as financial leasing, factoring, and franchising, are also regulated within the special part.¹⁴ The EU directives are transposed in the provisions of VÕS, not in separate laws.¹⁵

11 Kull, ‘Codification’ (n 4) 142, 146; Kull, ‘Reform’ (n 8) 124.

12 For the limitations of freedom of contract in the Estonian law see Miler, ch 4.

13 Kull, ‘Codification’ (n 4) 142–43; Varul, ‘Legal Policy’ (n 7) 113–14; Paul Varul, ‘The Creation of New Estonian Private Law’ (2008) 16 ERPL 95, 105–6.

14 Kull, ‘Codification’ (n 4) 143; Kõve (n 9) 36.

15 See Kull, ‘Reform’ (n 8) 126–27; Varul, ‘Legal Policy’ (n 7) 114.

2.2 Latvia

Latvia is the only Baltic state that had a civil code in force before the Soviet occupation. Aft...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Foreword
• Preface
• List of abbreviations
• List of contributors
• 1 Recodification and recent developments in the law of obligations in Central and Southeast Europe
• PART I Recodification of the law of obligations in Central and Southeast Europe
• PART II Specific institutes and recent developments in the law of obligations in Central and Southeast Europe
• Index