Review article
Legal Character of Ownership
Petar Radošević
Abstract
The author explores the legal character of ownership by analysing a number of past and positive legal systems. Among all historical legal systems, the concept of ownership as a fact, i.e. a non-legal (or, extra-legal) entity was applied most consistently in Roman law. It seems that the trend of gradual inclusion of ownership into the sphere of law has evolved since the late Antiquity.
Analysing definitions of ownership contained in laws adopting the objective concept, the author concludes that the legal character of ownership prevails. This seems to stem from the interaction between Roman institute of ownership and gewere, an old institute found in Germanic laws, which was the external image of law and indisputally had legal character. Framers of the civil code of Germany (the first to adopt the objective concept of ownership) were aware of the existence and importance of the gewere institute, which they rehabilitated and included in the objectively conceived ownership. Ownership thus acquired some features that can only be explained by its legal character (hereditability, trusts). Results of research show that the factual or legal aspect of the character of ownership prevails depending on the legal norms of a particular legal system, and that the objectively conceived ownership belongs to the legal sphere.
Keywords
ownership; objective concept of ownership; subjective concept of ownership; gewere
Hrčak ID:
35523
URI
Publication date:
20.4.2009.
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