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  1. 3 Studia Iuridica

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  1. 3 Dajczak W.

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Romantyczne inspiracje i bariery polskiej dyskusji o posiadaniu w XX wieku

100%
Dajczak W.
Studia Iuridica
|
2016
|
vol. 66
75-89
PL
Twentieth century Polish legal debate on possession adds an original element to the European legal tradition. The author has focused on the inspiring and limiting impact of the legal experience on this field. Legal debate on possession is meant here as legal experience of the discussion of academic lawyers, statutory regulations and judicial practice. The structure of the paper reflects three – distinguished be the author – key issues of this debate: how to precise the object of possession in the positive law? What should be the function of the possessor’s intention in the statutory regulation this legal concept? Are possessory remedies, if independent from the title to the object, legitimate and if so: should these remedies be limited by an exceptio iuris? Each question provokes tension between tradition and reinterpretation of the reasonability of possessory remedies. That tension shows the links between possession and political and economic context of law in action. The controversies have been accompanied by yearning for the balance between tradition and practicality. This Polish legal experience enriches historical-comparative discussion on the evolution and changes of the concept of possession in the Roman law tradition. The author concludes: in democratically made and independently applied private law, the possessory remedies should not be completely separated from the protection of property rights.
2
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Świadczenie niegodziwe – trudne dziedzictwo rzymskiej inspiracji

100%
Dajczak W.
Studia Iuridica
|
2017
|
vol. 72
101-119
PL
Incorporating the rules inspired by the Roman condictio ob turpem causam into modern regulations of unjustified enrichment provokes criticism. Such regulations are diversified into several models but mostly invoke controversies. The main goal of this paper is evaluating these critical opinions and doubts repeated in legal discourse using historical and comparative methods. Author focuses on five issues: usefulness of condictio ob turpem causam in the light of works of ius commune jurists; doubts concerning the principle in pari turpitudine melior est conditio possidentis; different approach of various European legislators to the idea of condictio ob turpem causam; relation between regulations of unjustified enrichment and unenforceability of agreements contrary to the o law and good customs; importance of the restitution of payments contrary to the law and good customs for today’s legal practice. The conclusions of such analysis allow to admit that doubts concerning the continuation of the Roman condictio ob turpem causam are justified. From the other side, in times of multicultural societies and increasing number of legal regulations the growth of disputes resulted from the payments contrary to law and good customs can be observed. The rejection of repayment based on the contrary to the objective good faith offers – according to the author – the best compromise between weak points of Roman condictio ob turpem causam and challenges of modern practice. In the legal reasoning it is expressed by the maxime „no one shall be heard, who invokes his own guilt”.Incorporating of this maxime into the unjustified enrichment is all the more justified when higher could be in legal practice doubts concerning the acceptability of rejection of restitution of the payment with has been made without legal ground but in the contrary to the principle of good faith.
3
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Romantyczne inspiracje i bariery polskiej dyskusji o posiadaniu w XX wieku

100%
Dajczak W.
Studia Iuridica
|
2016
|
vol. 66
75-89
PL
Twentieth century Polish legal debate on possession adds an original element to the European legal tradition. The author has focused on the inspiring and limiting impact of the legal experience on this field. Legal debate on possession is meant here as legal experience of the discussion of academic lawyers, statutory regulations and judicial practice. The structure of the paper reflects three – distinguished be the author – key issues of this debate: how to precise the object of possession in the positive law? What should be the function of the possessor’s intention in the statutory regulation this legal concept? Are possessory remedies, if independent from the title to the object, legitimate and if so: should these remedies be limited by an exceptio iuris? Each question provokes tension between tradition and reinterpretation of the reasonability of possessory remedies. That tension shows the links between possession and political and economic context of law in action. The controversies have been accompanied by yearning for the balance between tradition and practicality. This Polish legal experience enriches historical-comparative discussion on the evolution and changes of the concept of possession in the Roman law tradition. The author concludes: in democratically made and independently applied private law, the possessory remedies should not be completely separated from the protection of property rights.
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