Izvorni znanstveni članak
Patrimony in Civil Law
Saša Nikšić
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
The term patrimony was already known in the Roman law under different names (bona, patrimonium). In the beginning it was very probably connected with inheriting, and later with foreclosures, or in other words, with the responsibility of the debtor to the creditor. Roman law had the influence on the further development of the legal theory on assets. Namely, the French classical or subjectivist theory on patrimony owns certain elements to the Roman legal understandings. Classic or subjectivist theory on patrimony, inaugurated by Aubry and Rau, relies on the idea the patrimony is a reflection of personality, and is therefore non-transferrable, just as personality in non-transferrable. In the French law patrimony contains rights and obligations that belong to one person, and that have money value. Patrimony is indivisible. Because of that the subjectivist theory did not admit the limitation of responsibility of debtor for their debts and special patrimony funds (e.g. patrimony of spouses, separated from the patrimony gained before the marriage). Subjectivist theory also did not accept the possibility of founding a trust through a will. According to the subjectivist theory no patrimony can exist without the subject, and in the case of founding a trust exactly that happens, because the trust is founded after the death of the testator.
Unlike subjectivist theory, the so called objectivist theory on patrimony put the emphasis on the purpose of use of the patrimony. Germanic legal systems in accordance with this theory had no problems with limitations arising from the subjectivist theory. In Germanic legal systems patrimony appears in various meanings, depending on the function of the patrimony.
Croatian legal theory mostly follows the Germanic legal systems, although certain influences of the French subjectivist theory can be recognized. Relation to the Germanic legal systems is visible in the fact that in the Croatian legal theory and legislation several different terms of patrimony are accepted. The influence of the French subjectivist theory can be recognized in the characteristics of the patrimony (indivisibility) and in the function of easing the traffic, according to which the patrimony as unity can move in traffic. Although the French subjectivist theory as a rule does not allow the transfer of patrimony from one subject to another, it does allow the inheritance of the patrimony, and the Croatian legal theory as an example for the function of easing the traffic names inheritance. However, unlike the French law the Croatian law allows the transfer of the complete patrimony of one person to another in the legal proceedings inter vivos.
Ključne riječi
patrimony; responsibility of debtor to creditor; ownership
Hrčak ID:
100056
URI
Datum izdavanja:
28.12.2012.
Posjeta: 6.474 *