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Gdzie szukać rzeczy niczyich, czyli do czego służy kodeks cywilny

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Rudnicki J.
Forum Prawnicze
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2014
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issue 5 (25)
16-27
EN
Contemporary Polish provisions concerning appropriation – art. 180 and 181 of the Civil Code – are very closely based on the Roman law. The one, but crucial, deviation is the narrowing of the category of ownerless things. In the historical process many types of things that could be appropriated by the ancient Romans, such as war bounties or wild game, were excluded from that tier. Today the category of ownerless things is virtually empty inasmuch as significant representatives thereof are meteorites, ambers and garbage. However, in many jurisdictions around the world the ownership of meteorites is separately regulated, and this legislative tendency is embodied in the European Union’s waste directive, which calls into question the ownerless statute of garbage. Academics embroiled in research of these issues tend to look for answers in the specific provisions in the first place, using the Civil Code almost as an all-encompassing source of law. It is these examples and tendencies that demonstrate how far the decodification of the civil law has proceeded. The Civil Code provisions in issue, although originally meant to be sufficient to determine whether a thing can be appropriated or not, in fact have reached a point of being almost utterly absolved of its normative content. It appears that notwithstanding the generic character of the dispute pertaining to the acquisition of property it is inevitable to lead evidence and seek answers outside the code.
2
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Rola formy testamentu. Uwagi na tle porównawczym

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Rudnicki J.
Forum Prawnicze
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2013
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issue 2 (16)
35-44
EN
The problem regarding form of testament stands between two crucial principles of law: legal security and freedom of testation. The public wills can be considered as the safest testamentary option, but, as it is complex to draw them up, it does not fulfil the principle of freedom of testation. The position of such forms within the testamentary law defines therefore how each system deals with the abovementioned conflict of principles. The European models vary from the exclusivity of the notarial will in the Russian tradition to the solely private will in the English law. The German model (in which Polish regulation should be placed) offers the testator many possibilities, but emphasises the role of the notarial will, trying to balance the colliding principles. The aim of the thesis is to analyse the scope of testamentary forms in the different European traditions and to discover the axiological reasons for the significant differences between regulations in this field.
3
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Specyfikacja: prawo rzymskie, współczesne kodyfikacje i ekonomiczna racjonalność

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Rudnicki J.
Forum Prawnicze
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2016
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issue 1 (33)
47–59
EN
Original modes of acquisition, including specification, are nowadays far from being in the centre of lawyers’ attention. Even the regulations concerning specification in modern civil codes are rather laconic, although the problem they are supposed to deal with is of a rather complex nature. Yet some quite recent cases prove that the problem of creating a new thing is actual and may cause further confusion, especially due to the constant development and emergence of new processing technologies. After determining whether specification has taken place, we should answer the more obvious question if it has resulted in acquisition of ownership of the new thing by the processor. The variety of answers offered by Roman sources and present civil codes is surprisingly wide. Comparing to rather simple Roman propositions, modern regulations seem to be too complex and problematic to apply in practice. This observation leads to a conclusion that the simplicity of Roman solutions is their main advantage and makes them worth considering as the optimal option.
4
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Rzymski wzorzec w prawie spadkowym oraz plusy i minusy wideotestamentu

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Rudnicki J.
Forum Prawnicze
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2020
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issue 4 (60)
86-96
EN
This paper is a polemic with some theses of an interesting monograph by Mariusz Załucki “Videotestament. Prawo spadkowe wobec nowych technologii” (“Videotestament. Law of succession in the face of modern technologies”). The main thesis of the polemic concerns the real meaning of the popular understanding that contemporary forms of last will are based on “Roman model”. It is shown that the category of Roman legal framework is much more precise and useful in explaining the relation between modern succession law and its Roman sources. The videotestament, whatever form it could eventually take, would always fit in this framework perfectly. Further part of the paper discusses some notions about possible advantages of the videotestament putting forward a thesis that it does not have to be safer than traditional forms and that the widespread use of recording devices seriously threatens the possibility of determining if an author of a video really had animus testandi. However, all the critical remarks of this paper are primarily aimed at developing the discussion on the important topic raised in Mariusz Załucki’s monograph.
5
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Kształtowanie się prawa pracy a specyfika procesów kodyfikacji i dekodyfikacji prawa w Polsce

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Rudnicki J.
Forum Prawnicze
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2017
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issue 3 (41)
15–25
EN
The Polish codification of civil law was completed relatively late. Therefore, the general phenomena that caused the decodification of civil law appeared in Poland even before the final codification itself. The first Polish acts dedicated to regulate labor contracts are prior even to the Code of Obligations of 1933. The Code itself contained some provisions concerning this type of agreement, but their application was very limited due to the existence of the detailed, abovementioned special regulations. The development of the labor law was completed (at least theoretically) by issuing of the Code of Labor Law in 1974. With the eventual loss of any importance within the field of labor relations, civil law became therefore decodified. Moreover, it is obvious, that the labor law has its own axiology, which differs from traditional principles of the civil law. Therefore decodification could mean not only formal separation of special private law provisions from the code, but also the material separation of certain fields of regulation from the civil law in general.
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Kwestia ceny – o różnicy pomiędzy sprzedażą a zamianą

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Rudnicki J.
Studia Iuridica
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2016
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vol. 61
311-324
EN
The paper focuses on the ancient Roman legal controversy concerning the nature of the price in the contract of sale and its contemporary significance. The Sabinian school used to claim that the price could consist not only of money, but also of other goods. Thus the Sabinians recognised the barter as a variant of sale. The Proculians view that a price should consist only of money eventually prevailed and is now obvious for civil law codifications and the common law as well. However, the main argument raised by the Proculians has lost its importance, since they emphasised the differences in the mutual obligations of parties in the contracts of sale and barter. Today these differences do not exist anymore in the codified civil law, because both parties in both contracts are obliged to transfer ownership. The difference between both contracts is nowadays solely based on the monetary character of sale and non-monetary nature of barter. Taking this into consideration leads us to a conclusion that from the point of view of the Roman jurists our contemporary demarcation between sale and barter would not be significant. Nevertheless, it is important to distinguish between those contracts due to practical differences.
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