Izvorni znanstveni članak
https://doi.org/10.32984/gapzh.12.1.7
Mala fides superveniens (non) nocet in Acquisitive Prescription in Romano-Canonical Legal Tradition and Contemporary Legal Systems
Henrik-Riko Held
orcid.org/0000-0002-6217-2655
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
The author analyses the origins, development and contemporary application of maxims associated with the influence of bad faith or mala fides occurring after acquiring possession on acquisitive prescription (adverse possession). The earliest origins and development of the maxim: Mala fides superveniens non nocet, which is associated with Roman law, are scrutinised. According to these, bad faith acquired after the beginning and in the course of acquisitive prescription did not hinder it. Afterwards, mala fides superveniens nocet, a completely different maxim associated with canon law and its influence on the civilian (secular) legal systems is analysed. Finally, the situation in contemporary legal systems is investigated, including the most important civil codes (German BGB and French CC) and systems which were influenced by these codes. In principle, a strong direct influence of the Romano-canonical legal tradition on contemporary legal systems is recognized. Mainly due to different arrangements in BGB and CC, uniformity in this aspect does not exist, and both maxims may be found in contemporary legal systems. However, history of codification of the said maxims, the elaboration of their historical application and recent tendencies indicate the optimality of the general maxim mala fides superveniens nocet, developed within the framework of the Romano-canonical legal tradition.
Ključne riječi
mala fides superveniens; acquisitive prescription; usucapio; praescriptio; Romano-canonical legal tradition
Hrčak ID:
260599
URI
Datum izdavanja:
16.7.2021.
Posjeta: 1.277 *