Comparative Private Readings PDF

Comparative Private Readings Created @January 24, 2024 5:18 PM Reviewed RODOLFO SACCO Legal Formants: A Dynamic Approach To Comparative Law Jurists are generally aware of the truth that their work is not valid only because it...

Comparative Private Readings Created @January 24, 2024 5:18 PM Reviewed RODOLFO SACCO Legal Formants: A Dynamic Approach To Comparative Law Jurists are generally aware of the truth that their work is not valid only because it can be used to achieve this or that practical end. However, a different standard for comparative private law applied in this sense. The purpose of such comparisions were asked. The idea was: the study of foreign legal systems is a legitimate enterprise only if it results in proposals for the reform of domestic law. : JUSTIFYING COMPARATIVE LAW BY ITS PRACTICAL USES Uniformity is often described as a patently good thing and hence worthy of encouragement. Actually, both uniformity and particularity among legal systems have their pros and cons. The greater the number of particular legal institutions existing at a given time, the greater may be the probability of certain types of progress. However, history does not provide an evidence that uniformity is achieved through comparative legal study: In the Middle Ages, Roman law spread throughout Continental Europe because the other systems of rules with which it had to compete lacked its quality and prestige. The jurists who turned to Roman law instead of to local rules did not do so because they had compared the two. In most cases, the Roman rules were the only ones they really knew, and their choice was more the result of ignorance than of comparative study. French Code Civil spread throughout Europe, not because of comparative study, but because of the propagation of liberal Comparative Private Readings 1  ideas, the ideal of codification and the prestige of all that was French. When the comparative study of law does contribute to achieving this uniformity, one of the principal instruments by which it does so is by showing that certain differences among legal systems are merely apparent. That is a genuine contribution and one which is cognitive and critical and in this sense "scientific." The task is performed by recognizing similarities in old laws rather than by enacting new uniform laws. The comparative study of law can be helpful, not only in achieving uniformity, but whenever foreign legal models are imitated. The imitation of foreign legal models need not take the form of a global reception, the effect of a widespread political movement, such as the reception of French models in Europe following 1806. It can also take the form of a selective adoption of particular legal institutions or rules. When the legislator borrows from a foreign legal system aided by the sophisticated analysis of a jurist, they earn the respect we accord to enlightened practical activity. Nevertheless, we should not be blind to the splendid results that comparative law conducted as pure research has already achieved: sophisticated analysis of the differences between common law and civil law; detailed reconstructions of ethnic law; profound assessments of the transformation of Afro-Asian law through contact with European law or of the differences between law in capitalist and socialist countries Comparative law presupposes the existence of a plurality of legal rules and institutions. It studies them in order to establish to what extent they are identical or different. Comparative law is like comparative linguistics in another respect as well. Linguistics is independent of political and ethical science and, of course, of sciences that do not deal with linguistic data. The study of linguistics, moreover, has not centered on practical applications. In these respects, comparative law is like cultural anthropology as well. The Comparability of Socialist and Non-Socialist Legal Systems Comparative Private Readings 2  The answer that comes spontaneously to mind is that legal systems must have a certain amount in common and that this homogeneity makes comparison possible. For half a century, however, jurists have asked whether socialist and non-socialist systems are comparable. Jurists in socialist countries once denied that their law could be compared with bourgeois law. According to them, law is a superstructure arising from the economic base of a society. Since that base is overturned when a capitalist society becomes socialist, law too must be totally overturned and take on a significance opposite to the one it had before the revolution. Consequently, although sale, inheritance, and compensation for harm may be regulated by identical rules in both socialist and capitalist countries, the antithetical aims of these laws makes the similarities illusory. It was recognized that the institutions of both types of society may partially converge. Both may share a public international law and work side by side in the United Nations. Both types of societies have signed international conventions designed to create uniform law which, by definition, must be the same for both. Actually, the law of stateless societies has certain basic functional and structural features in common with the law of developed countries. It preserves a certain social through obedience to rules. Of course, it has its own special features as well. There is no body of jurists to apply the rules; there are close links between operational rules and nonlegal doctrines; there is less a tendency to repetitivity of solutions. The Translatability of Legal Terrns No people invents all of the legal rules and institutions it actually employs, and some principally use rules and institutions developed elsewhere. The reception of these rules and institutions is necessarily accompanied by translation. Not only can two codes in different countries use the same words with different meanings, but two codes in the same country may give different meanings to the same words, as indeed, may two articles of the same code, two authors of doctrinal works, or two judges. Words do not, in fact, have absolute permanent meanings. Every speaker, whenever he uses an expression endows it with an unrepeatable specific meaning. Comparative Private Readings 3  What is to be done if a certain terminology was prevalent once, but not exclusive, and today a different terminology is prevalent, but not exclusive? How can we express precisely the similarities and dissimilarities? In large part, we simply learn from practice. We consult Italian works of the last century without translating them into modern Italian. The same can be said of the Parisian jurist who consults the literature of Quebec or the jurist in Stuttgart who consults that of Leipzig. In the case of a legal reception, the translator has an advantage. The foreign expression will be translated by a neologism which is taken to correspond to a notion that is well-known to those acquainted with the legal system that is being imitated. There will always be someone ready to explain a phrase the jurists of the country doing the imitating, and hence translation from one language to the other will be easy “The legal rule”: For a civil law jurist, this single rule is supposedly contained in the code. Supposedly, the works of scholars are consulted because they faithfully describe the rule in the code, and decisions of judges are instances in which this rule has been enforced. For a common lawyer, this single rule supposedly is contained in a statute, or when none has been enacted, in the decisions of courts. The works of scholars are consulted because they describe the statute or the judicial decisions. The civil lawyer may say that this rule comes, in principle, from the code; the common lawyer may say it comes from a particular statute or from judicial decisions; and yet they both will learn their law initially from the books of legal scholars. Students in civil and common law countries turn to books, manuals, hornbooks or carefully edited casebooks, or at least to the opinions of their professors, to learn, respectively, about the code, and about their case law. Thus, whatever jurists or students supposed to be true as to the ultimate source of a legal rule, they will begin with the work of scholars and pass to a variety of other legal sources. Comparative Private Readings 4  Thus even the jurist who seeks a single legal rule, indeed who proceeds from the axiom that there can be only one rule in force, recognizes implicitly that living law contains many different elements such as statutory rules, the formulations of scholars, and the decisions of judges-elements that he keeps separate in his own thinking. In this essay, we will call them, borrowing from phonetics, the "legal formants." The jurist concerned with the law within a single country examines all of these elements and then eliminates the complications that arise from their multiplicity to arrive at one rule. In civil law systems, and in common law systems where there is a relevant statute, there is a tendency to say that the will of the legislature creates a legal rule which scholarship interprets and judges enforce. In common law countries when there is no relevant statute, there is a similar tendency to think that a single rule is implicit in the case law, a rule that scholars discover and judges apply in new cases. Thus, in principle, the various rules that legislators, scholars, and judges propound or apply are supposed to be identical. Lack of identity is the fault of the interpreter. Thus to identify differences and similarities among legal systems, we must take into account both legislation and case law. We should not think, however, that we understand a legal system when we know only how courts have actually resolved cases. Knowledge of a legal system entails knowledge of factors present today which determine how cases will be resolved in the near future. We must know not only how courts have acted but consider the influences to which judges are subject. Such influences may have a variety of origins. The comparative method is thus the opposite of the dogmatic. The comparative method is founded upon the actual observation of the elements at work in a given legal system. The dogmatic method is founded upon analytical reasoning. The comparative method examines the way in which, in various legal systems, jurists work with specific rules and general categories. The dogmatic method offers abstract definition. "LEGALFORMANTS": THEIRSTRUCTUREAND RELATIONSHIP A. The Significance of Case Law Comparative Private Readings 5  The exegetical, historical, rational, and sociological methods, as well as legal realism, all look to reality and hence appreciate the importance of judicial decisions. The student of comparative law is perfectly aware that a judicial decision has a different significance in countries where the law is based on precedent than in those where it is based on statute. In civil law countries, law is traditionally explained by saying that the legislature enacts a statute, scholars discover its meaning, and judges, assisted by their conclusions, give the statute a precise application through their decisions. The statutes are not the entire law. The definitions of legal doctrines by scholars are not the entire law. Neither is an exhaustive list of all the reasons given for the decisions made by courts. In order to see the entire law, it is necessary to find a suitable place for statute, definition, reason, holding, and so forth. More precisely, it is necessary to recognize all the "legal formants" of the system and to identify the scope proper to each. One must avoid the optical illusion caused by magnifying the more general statements of law, the large definitions, and neglecting the specific operational rules that courts actually follow. By the same token, one must avoid the error of perspective that makes the more abstract legal conclusions invisible. Legal formants are the different components that concur to build any given legal system. The comparative law scholar can understand the dynamics that shape any legal system through the analysis of their interactions Within each legal system there co-exist different “legal formants" which may or may not be in harmony with each other. Important elements of which we have not yet spoken are the reasons and the conclusions given by judges and scholars. Strange as it may sound, the reasons that judges and scholars give are different "legal formants" than their conclusions. The reasons have a life of their own independent of that of the conclusions they supposedly support Legal systems where the same conclusion is supported by different justifications cannot be regarded as identical. Comparative Private Readings 6  Legal Formants: A Dynamic Approach to Comparative Law (Installment II of II) The "legal formants" of a system of law are never in complete harmony. Nevertheless, the "sources of law" are usually explained to suggest that they provide a single answer to every legal problem. In countries such as Germany, France and Italy, hortatory statements are made that acknowledge, as sources of law, those envisaged by the constitution Whatever influences interpretation is a source of law. Although the disharmony among legal formants of the system is most evident in France, the French constitution preserves the ideas of the late eighteenth century according to which legal rules can only be created by organs of government charged with legislative functions. Nevertheless, in France, as elsewhere, the civil law evolves incessantly, driven on by innovative judicial solutions. Even in France, jurists acknowledge the contribution made by this droit pritorien, which, like the work of the ancient Roman praetor, is a pillar of the legal system supporting much of the weight. The French discussions of private law acknowledge this contribution, just as their treatments of constitutional law usually deny it. subverting: altüst etmek This does not mean that the constitutional lawyers are wrong, nor that the experts in private law and labor law are subverting the constitution. It is simply that some elements of the system are constitutionalized, and these are the ones the constitutional lawyers refer to in their discussions. We might refer to them as enacted legal formants as distinguished from those which have grown up without formal enactment. No one who wishes to describe the law realistically can ignore the existence of sources other than those formerly recognized in the Constitution. Sometimes these sources are recognized by speaking of a "constitution in action" (costituzione materiale) or a living law (diritto vivente) and so forth. Others speak as though in an ideal (perfect) legal system the only sources of law would be those indicated in the constitution, even though, in reality, many rules are created Comparative Private Readings 7  by courts, arbitrators, and administrative bodies. Although they try to take account of the actual world, their descriptions contain a contradiction. Surprisingly enough, however, the contradiction is only apparent. One can believe both in the omnipotence of the legislator and in the creative power of the judge. The reason is that statute and judicial practice are concerned with different legal formants of the system, which themselves may have different contents. One can affirm the power of the legislator to make statutes without denying that judicial decisions are another source of law. To do so, however one must acknowledge that judicial decisions are a source of law, whether or not they are mentioned in the constitution. Any account of the sources of law is incomplete unless it describes all legal formants of the system. To have a complete account, we must recognize the rules promulgated by organs of the state and enforced by its coercive power are not the only sources of law. The positivist view regarding the sources of law: The positivist view that law is created and enforced by the state creates a dangerous optical illusion. The organs of the state may choose, conscientiously or unconsciously, to enforce rules created elsewhere, for example, the rules found in scholarly writing, in manuals, and in teaching in the universities. The positivist view leads one to neglect these sources SOURCES OF LAW AND INTERPRETATION Law cannot be applied unless it is interpreted. When law is applied, there must be an interaction between a primary source, such as a statute or precedent, and an interpretation. Interpretation, in turn, is determined and disciplined by all those factors that affect the convictions of the interpreter. Whatever affects the convictions of the interpreter is thus a source of law as applied. An obvious example is university teaching. Whatever influences interpretation is a source of law. To discover what influences interpretation various methods can be used. It has been said that the California Civil Code of 1872, drawn up along the lines of the Field Civil Code, was stillborn. According to jurists such as Pomeroy the Comparative Private Readings 8  aim of the Code was to interpret and restate prior common law.2 Therefore the interpreter had to consult the cases decided before the Code was enacted. Similarly, when Italy adopted a new civil code in 1942 to replace the previous code of 1865, scholars continued to cite earlier German doctrine as, indeed, they had done before this code was enacted. They were convinced that the new code was incomprehensible without an understanding of the concepts underlying it, and that these concepts had been described with unsurpassable accuracy by the German writers. Therefore they consulted German doctrine to interpret the law in force. How can the legislator can have its own will respected? any normal legislator can make himself obeyed to a considerable extent if he adopts a rule that is clear, precise, and easily understood by the judge who must enforce it Either the rule must be drafted so that the judges can understand it given their current educational background, or care must be taken to educate judges so that they will be qualified to understand such rules. a statute to command attention it must somehow be placed on a pedestal. It must be sacralised. Rules have that status when they are felt by those who must enforce them to be the product of a great social breakthrough. An important form of sacralization takes place when a society elevates the authors of the law to a level higher than the rules themselves. The fact that Dante put Justinian in heaven in his Divine Comedy tells us something we might miss reading the commentators on Roman law: the idea, germinating in the medieval cult of Roman law, that the Corpus iuris civilis was compiled by a sort of divine mandate. SCHOLARSHIPS AS A SOURCE OF LAW We have mentioned that scholarly writings, both essayistic and didactic, are a source of law, that is, they form a "legal formant" of the system. A doctrine: may describe the content of a rule, may be a definition unconnected to any rule of decision (as italian professors defines a a “juristic act”), may describe Comparative Private Readings 9  a method to be followed in reaching legal conclusions Again, a doctrinal proposition may pass judgment on the respective importance of different sources of law. For example, it may urge a person to follow case law despite conflict with a statute or to disregard creative judicial activity and return to the letter of the statute. intrinsic:aslında olan hortatory: tavsiye infallibility:yanılmazlık At various points in history, doctrinal propositions have been regarded as the supreme source of law. One such case was that of the Roman law in force in continental Europe from the Middle Ages until the enactment of the German Civil Code. Why?: Its a source that is bound to be important whenever positivists' conceptions of law have made concessions to rationalistic and naturalistic conceptions. Actually, the Justinian corpus gave rise to a body of rules explicit in none of its texts and in constant evolution. İlerleye süreçte Roma hukuk sisteminin temelini oluşturmayan yeni hukuk metinleri ve kuralları ortaya çıktı. Bunlar özellikle sözleşmeler hukukunda uygulanmaya başlandı. Methodologically, these results were achieved by studying substantive law without regard to the procedures in which it is enmeshed, through the use of dialectic, and the free pursuit of the raison d'etre of the rule. The journey began with a letter of the corpus iuris and ended with the final draft of the German Civil Code. It was long indeed. Every step of this journey was taken by interpreters, and in the first instance, by the medieval doctors of the Roman law. It would not be right, however, to ignore the contribution of judges and practitioners that have shown the importance in the development of law of the giving of legal advice, judicial decisions, and practice in general. Nevertheless, the person who guides interpretation is, first and foremost, the scholar in his double role as a writer of authoritative works and as a university Comparative Private Readings 10  lecturer. Authority was given to the opinions of single theorists sometimes to the common opinion of a certain number of learned scholars. The citation of Roman law was pro forma and was accompanied by a citation to the scholar who interpreted it. Thus the (unquestioned) legitimacy of the Roman legal text was extended to the scholarly interpreter. In Islamic law, although theology may guarantee the infallibility of this interpretation, at a human level, the scholar is recognized as the architect of this immense framework of rules. The revealed texts are only the historical starting point of the sharia which is a scholarly creation. This scholarly monopoly is established in two circumstances: the sharia is part of theology and, in Islam, there is no authority empowered to define a truth of faith. the Islamic judge does not give reasons for his decisions or explain the point of law at issue. Thus there is little room for a cult of judicial precedent. In England, the courts have concerned themselves with the law as applied and little with the work of scholars. The professor writes accounts of what judges do and, in his teaching, tries to familiarize the students with judge-made law. On the contrary in the United States, even the courts have similar powers to those in England, there are numerous state judicial systems. So the judges in different states decide the same questions differently. The job of comparing solutions is performed by scholars who, by applying logical, doctrinal methods to the cases, express their own conclusions. They become arbitrators who approve or disapprove of judicial decisions. To defend their views, the scholars elaborate systematic criteria for the legal method around which "schools" form such as the current law and economics movement. Legitimacy in Scholarly Power persuade: ikna etmek The scholar has no other power than the one that comes from his capacity to persuade. He is, after all, a professor and an author, roles that multiply his chances of influencing the law by force of persuasion. A professor and author influences a student who learns the law from his book or his lectures. The often Comparative Private Readings 11  repeated claim that the student of the civil law learns law from the code is absurd. The student of civil law learns law when he prepares for an examination, and he prepares for the examination with a textbook after attending the professor's lectures. Of course, he has the capacity to criticize the professor's teaching but he will not exercise it until he has listened to a second professor who teaches doctrines different than the first. Once he has become a judge, yesterday's student will be keen to apply the law he has learned in the university. The history of law is filled with episodes that can serve as examples. Recently, Sudanese judges applied the common law because they knew it even though the law supposedly in force was contained in a code. Now the common law is once more in force, but a new generation of judges still applies the code because it is the only source they know. In France, after the enactment of the Code Napoleon, a mass of Roman or old French rules continued to be applied by judges who had trained at the university studying Roman or royal law. The kings of England, Poland and Hungary defended the legal traditions of their countries by preventing future judges from studying Roman law. Conversely, the fortunes of Roman law in Germany were tied to the fact that university education in Roman law was the only route to practice before courts and in offices. Also worthy of study is the extent to which the nationalization of law inhibits its creation by scholars. At the political level, nationalization occurs when the organs of state authority such as the legislator, ministers, and judges, wish to control the creation of law themselves. Nationalization occurs in the realm of ideas when it is thought that law is a state system of rules, and consequently that the area in which a rule in force coincides with the territorial boundaries of the state or a well determined administrative division of it. Examples of non-nationalized law are the Roman law of continental Europe before codification and Islamic law. In theory, however, it would be possible for nationalized law to be created by a scholarly authority. For example, in a one party state, a class of theorists might arise that were Comparative Private Readings 12  admired by the party. Or, for example, in a state dominated by some form of personal power, scholars might be given power because they are admired by the ruler. A SECOND APPLICATION: THE LAW OF CONTRACT Contract is usually defined in terms of an exchange of promises, or mutual expressions of consent, or the declarations of will of two or more parties. Of course it is necessary to have the consent of all parties if the contract imposes obligations on all parties.10 The offeree must accept before he can be obligated. If the contract imposes obligations or other burdens on only one of the parties, however, then it is far from obvious that the other party needs to consent. premise:ön kabul The need for the other party to consent has been said to follow from either of two premises, each of which has different practical consequences: One premise is that the will of the individual has complete control over whatever happens in the individual's own legal sphere. It is argued from this premise that the individual's sphere cannot be altered for better or for worse by the unilateral will of the other party as long as the alteration is not justified by some previous relationship between the parties. The second premise is that one cannot inflict unjust damage on another. One can argue that individual's legal sphere cannot be altered for the worse by the unilateral will of another. If the legislator subscribes to the first premise and all its consequences, he will allow no one to be impoverished without his consent. Consent, of course, may sometimes be given when the offeree is silent, but here it is important to distinguish. Under some circumstances a judge would rightly conclude that the silence, although an omission, is a means of expressing the offeree's will. Under these circumstances silence indicates a will to accept. In contrast, as soon as the judge is prevented from examining the circumstances in order to determine Comparative Private Readings 13  the meaning of the offeree's silence, it is a fiction to say that the offeree has expressed his will to consent. If a contract is formed nonetheless, then the true rule of law is not that the offeree gives consent by his silence but rather that the offer alone forms a contract provided it is not rejected by the offeree MATERIALS We are now in a position to consider the nature of an agreement or contract in different legal systems. French Civil Code: one element necessary for there to be an agreement (convention) is "the consent of the party who obligates himself" ("le consentement de la partie qui s'oblige"). It would seem, then, that a promise is necessary for an obligation to arise but not an acceptance unless the promisee must obligate himself. by the way of exception, the Code requires an acceptance in the case of certain formal contracts, such as donations and agreements affecting property rights between the spouses. Nevertheless French scholars have reached to different conclusion. They believe that Article 1108 contains an error. An agreement actually requires the consent of both parties, and strangely enough, the scholars support their view by a leteralistic reading of Article 1108. Article 1108 created a schism between the Code and its interpreters. In the 19th century, French scholars went further. They concluded, not only that an unaccepted promise could not produce a contract, but that it could not have legal affect even outside the domain of contract law. Whatever one may think of this conclusion, one can at least say that the French scholars then, unlike French or Italian scholars today, defended a clear operational rule rather than a mere tautology. intact:dokunulmamış Today, supposedly, the rule that contract requires the consent of all parties is supposedly still intact although, since the end of the 19th century, the French have Comparative Private Readings 14  acknowledged exceptions in which some types of unilateral promises are given effect. Yet it seems obvious, he said, that the consent of the other party is also necessary. Since the offeree has no reason to refuse an offer that can only benefit him, Demolombe concluded that this consent should be regarded as implicit. The practice of the courts, however, indicates that there is no need to insist on an acceptance by the offeree of a promise that burdens only the promisor Germany Civil Code: In Germany, the Civil Code does not explicitly define contract (Vertrag). Section 145 and the sections following implicitly presuppose that an acceptance is necessary. It is usually said that a contract is formed by the expression of will of both parties. Nevertheless, according to Section 516, par. 2 of the German Civil Code, when a gift is not accepted, the donor may set a time limit after which the gift is perfected as long as the donee has not refused it. Despite Section 516, however, scholars continue to teach that a gift requires the consent of both parties. In the hands of the scholars, the concept has replaced the rule Potentially, Section 516 could be applied not only to a donation in the strict sense but to many other promises which burden the promisor alone. impoverish:yoksullaştırmak The German Civil Code defines Schenkung to include any transfer of property by which an individual enriches another and impoverishes himself when it is understood that the transfer will take place without recompense. Thus, Sche nkung does not require animus donandi, the intention to benefit another gratuitously. Therefore, Section 516 could be applied to transactions which, in Italian law, would not be donations because they lack such an intent: for example, promises to guaranty the obligation of a third party. Comparative Private Readings 15  The disadvantage of interpreting Section 516 in this way is that then, the formal requirements necessary for a donation in the strict sense would be required in other transactions as well, such as guarantees. For that reason, German courts and scholars have not pushed Section 516 to its limits. German law has bypassed the need for the offeree's consent in other ways. For example, Section 107 provides that an agreement with a minor is valid if the minor obtains a benefit but assumes no burden. The requirements for making such an agreement, therefore, are allowed to turn on the absence of a burden to the minor. Other inroads have been made by applying Section 151. According to this section which appears in the part of the Code devoted to contracts in general, a contract may be binding "without the manifestation of an acceptance to the offeror" when "such a manifestation was not to be expected according to commercial custom." In a typical application of this section, an acceptance is said to be unnecessary when offeree has actually begun performance. Interpreters claim that this section does not permit a contract to be formed without an acceptance. It merely recognizes that an acceptance may take place through performance as well as through a communication where custom so prescribes. Nevertheless, the case law has used Section 151 to hold a party to a contract when he is silent after having received the other party's offer, and when he should have spoken, given the previous relations between the parties. In a further extension of Section 151, an individual's silence has been deemed to be an acceptance when the consent of that individual is "obvious" (selbstverstdndlich). Typical cases involve the abandonment of actions, the assumption of debts, and other unrecompensed benefits to the offeree. Italian Civil Code: In Italy, Article 1321 of the Civil Code defines a contract as an agreement. According to Article 1333, however, an offer that entails burdens only for the offeror will be binding without an acceptance unless the offeree rejects it "in the manner required by the nature of the business or by custom." Comparative Private Readings 16  Italian scholars, however, continue to defend their traditional views by means of philological expedients, like those of the French. The case law follows the rule of Article 1333 but explains that the offeree has made a "tacit acceptance" through his silence. We can now summarize some of the results of our brief comparative survey: 1. in the codes we have examined, the consent of both parties is required only in the case of contracts with consideration and, in some cases, in the case of formal contracts. 2. the scholars in these countries ignore rules that contradict their principle that both parties must consent. 3. the courts in these countries enforce a promise that burdens the promisor alone, even if it is not accepted, unless there are special reasons for requiring an acceptance. 4. the scholars square their conclusions with the codes and the practice of the courts on a purely verbal level by asserting that the silence of the offeree constitutes an acceptance. The Significance of the Material We can conclude that in civil law countries, except in the case of liberalities such as gifts, a promise is binding without an acceptance if the promise is not conditional on the giving of a second promise. However, we have not yet determined whether this conclusion holds for formal contracts and for contracts to transfer property. Also the French examples we have used might be thought unconvincing for three reasons: in its 1938 decision, the Court of Cassation did not say that silence constitutes acceptance but that the trial court had power to consider whether silence would count as acceptance. the case concerned the parties to a lease, a fact that might be relevant in deciding whether the offeree had a duty to manifest his will. Comparative Private Readings 17  the case involved a reduction of rent and so is somewhat like the cancellation or forgiveness of a debt. The cancellation of a debt is a transaction with an ambiguous nature, somewhat like a contract and somewhat like a unilateral renunciation of rights. 💡 Nevertheless, the French case is in point because it illustrates a more general problem. The requirement that both parties consent is not imposed by statute in any of the countries that we have examined. Nevertheless, it is proclaimed everywhere by scholars. Courts manage to read the formulas of the scholars into their statutory texts but, when confronted with an offer that produces only benefits for the offeree, they resort to the fiction of the offeree's tacit, presumed, or feigned consent. sometimes one legal formant such as the operational rules, has a greater tendency to be borrowed by other systems than another legal formant, such as general definitions. In any event, our analysis of this problem has shown clearly how the most general legal formants of a system,the definitions and formulae, tend to overlook the results of particular cases. A THIRD APPLICATION: THE "OBJECTIVE ELEMENT" IN TORT LIABILITY Strict liability is the exception in civil law as in common law systems. Normally, to recover, plaintiff must show the defendant was at fault and his fault caused the damage that the plaintiff has suffered. The problem we will now consider is whether there is another element necessary for the plaintiff to recover, an element which we shall call "the objective element." If this "objective element" is required, then any damage caused by fault will not give rise to liability In modern Codes we may at first sight see two alternatives: Comparative Private Readings 18  1. There may be liability only in certain typical situations. The former, known as principle of neminem laedere, is the solution of the French Code. 2. The second, enacted in the German B.G.B., was the solution of the Roman law and of traditional common law. In both of these systems, there was a list of actions that a plaintiff could bring against the person who had hurt him: in Roman law, actions for theft, robbery, insult, and damage wrongfully done; in English law, for trespass, assault, libel, and so forth The French Concept: Although only particular torts were actionable in Roman law, the Roman jurists coined the general formula neminem laedere, "injure no one." That formula became the basis of Article 1382 of the Code Napoleon: liability is imposed for "any action of a man which causes damage to another" (tout fait quelconque de l'homme, qui cause d autrui un dommage). 💡 The text does not necessarily mean, however, that any damage caused by fault gives rise to liability. The history of the interpretation of the French Civil Code shows that this article is compatible with a system in which tort liability is imposed only where a particular tort has been committed. Indeed of the French authors in the first half of the nineteenth century and many thereafter have thought that Article 1382 contains the kind of solution which the German Civil Code adopted later in Section 823. Section 823 limits liability to cases in which "absolute rights" of the victim have been violated. The "absolute rights" of the German Civil Code include, for example, life, health, and freedom of movement. That Article 1382 does not establish liability for any damage whatsoever that is done through fault (kusur yoluyla meydana gelen herhangi bir zarar için sorumluluk getirmediği) is particularly clear in the work of German interpreters of the French Civil Code or French authors influenced by German thought. Comparative Private Readings 19  💡 According to Zachariae,"tort in the sense of the civil law is an act by which, intentionally or negligently, the rights of another person are unlawfully injured” According to the formula proposed by Toullier in the 19th century, article 1382 applies to actions that cause damage unless the actor is exercising a right. The "right of freedom" consists in doing everything that is not specifically prohibited by some other rule of law. Thus liability presupposes violation of some rule of law protecting the victim other than Article 1382. Towards the end of the nineteenth century, this interpretation, which had enjoyed such favor, began to lose ground. It was recognized that the defendant may be liable even when it is difficult to identify an injury to the right of the plaintiff, as in cases of unfair competition, seduction, misleading information, or entering into a void contract. In the last quarter of the nineteenth century Laurent mentioned that: Every civil injury is a tort according to the provision of Article 1382. The principle is clear but its application is not without difficulties. First, there must be a right, but rights, like obligations, arise only under statute and through agreement. It is therefore necessary that a right founded on statute or agreement be injured. Only then is there a tort or a quasi-tort as the aim of Article 1382 is simply to safeguard the rights of men in civilized society granting them an action against whoever injures them. One must be careful to avoid thinking that the injury consists in the damage caused by an act. The damage is only one element of the tort, and it is not sufficient in itself. A right must be injured. (Liability could only rest on injury to a right) This definition cause problems while trying to find which right was violated. At the beginning of the twentieth century, Planiol seems, albeit with circumspection (ihtiyatlı da olsa) , to have moved toward the idea that only certain types of torts are actionable. Comparative Private Readings 20  Indeed, he seems to have believed that the difference between Article 1382 and Section 823 of the German Civil Code is purely formal: The expression tout fait quelconque (any action?) is too vague(belirsiz) a limitation on the requirement of fault. Not any act will do, but an act defined by its illegitimate character. This basic idea is only hinted at in the French Code. The German Code, on the contrary, says with precision: "He who injures another person unlawfully" (Article 823). For Planiol, Article 1382 creates sanctions but does not create new duties: It is said at every turn (her fırsatta söyleniyor ki) that an individual is liable for his fault by virtue of Article 1382. That is true in a certain sense, because it is this article that obligates a person at fault to repair the consequences. Nevertheless, this text only provides a sanction. It is for tort what Article 1142 is for contract.... In itself, it mentions no particular obligations.... It is impossible to conceive of fault if there were no prior obligation to act or to abstain Yani diyor ki bu madde yalnızca haksız fiilden kaynaklı yaptırımlar yaratıyor. Ancak yeni sorumluluklar yaratmıyor. O yüzden şu sıkıntı ortaya çıkıyor: yeni sorumluluklar türetilmezse, nasıl bir hatadan veya sorumluluğun yerine getirilmemesinden bahsedilebilir? They suggest that there is a general duty to abstain from any act which requires ability or power that the individual does not possess. Demogue criticized Plainiol for confusing the part (negligence) with the whole (fault). Demogue believed that side by side with the subjective element of negligence, there was an objective element, a civil injury. In truth, however, Demogue's notion of a civil injury is elusive(anlaşılması zor): “We must note that the limit of a person's rights is no simple matter. It sometimes has an objective aspects, sometimes subjective. Sometimes the breadth of the right varies with the circumstances in which it is exercised, sometimes with the persons against whom the right is asserted. Under certain circumstances, the right is extinguished. Sometimes a person has a more extensive right because he exercises it in furtherance of a social interest. Sometimes he has a right protected Comparative Private Readings 21  against only one type of interference. Again, customs can influence the limit of rights” In the quarter of the twentieth century, the theory that only certain types of torts are actionable entered into a critical phase. Even in new editions of old works, authors eliminated references to the violation of rights. Nevertheless, an explanation still had to be made of why so many human acts that cause harm do not give rise to liability. One cannot answer saying that whoever exercises a right does not act unlawfully. Indeed, this idea eventually became the butt of serious criticism. Scholars realized that it led to emptying Article 1382 of any content. Thus, as Colin and Capitant observed: “Is it not possible to say that every act of man not expressly prohibited by law constitutes the exercise of a right? The very acts of coming and going, of hunting, of moving around... appear to be emanations of those general rights called public rights, or, in the past, the rights of man. Now it is precisely in the performance of such acts that torts to others are most often committed... hence, whether we are dealing with rights specifically granted to each individual or with general rights that guarantee man the free use of his faculties... the principle is always the same: a man must always act with diligence in such a way as to avoid harming his fellows. If he fails to do so, he is liable for his actions.” Faced with this convincing logic, the only thing to do was to explain liability in a different way. The doctrine found in the manuals seemed to entrench itself behind a distinction between exercising a general right and exercising specific rights. In the latter case the person who causes damage is supposed to have a defense. Nevertheless, this solution cannot survive the criticism that scholars have aimed at the idea that a person cannot commit a tort if he is exercising a right. The exercise of a specific right may also give rise to liability. Therefore, to find an explanation of liability we must again look elsewhere. In doing so, scholars have found they must abandon the conceptual procedure that explains "tort" by the concept of "unlawfulness" and "lawfulness" as "the exercise of a right." Scholars have turned to induction, examining the case law to Comparative Private Readings 22  obtain more or less general rules. They have acknowledged that the law cannot arrive at a general explanation. Indeed, Esmein has even said: “According to the civil code, one who causes damage to others through fault must pay compensation. It is therefore the duty of the judge to say which acts are blameworthy beyond those in which a statute itself condemns an act either expressly or by providing a civil or criminal sanction.... It is striking that the judge should have such power in an area in which a code is in force. Although it has been said that there is a general duty in France not to harm others.... This statement.., is not perfectly correct, since in numerous cases one can harm others voluntarily.” These considerations have led jurists to ask why conduct is or is not actionable. According to Savatier, the reasons: “emerge, when statutes are silent, from the necessities of social life: for example, the right to express one's own thought, the right to protect property or other rights one legitimately claims even to the detriment of others, rights of competition and neighborhood relations. The exercise of all these rights may harm others. When the legislator intervenes, he generally does so to codify a particular instance in which a right such as these has already been acknowledged." He describes separately each particular justification to explain instances in which conduct does not give rise to liability. One of the most important justifications is the "inevitable parallelism of human activities" which justifies fair competition in similar activities. By developing justifications such as these, it may be possible to absolve a person who causes harm without abandoning the principle that, in general, one owes compensation for the harm that one does. The prohibition on causing damage to another is presented as the general rule and the instances in which one is free to cause harm are exceptions. In this way, attention is shifted from the legal status of the victim to the behavior of the person who harms him. This attitude is still fashionable in French doctrine. In this approach, moreover, the element of injury is wholy absorbed by that of faute. Comparative Private Readings 23  The faute is a violation of a duty such as the use of diligence which is not supposed to depend upon the status of the victim. Article 1382 is therefore compatible with two opposite formulas, one restrictive and the other very broad. These formulas, it would seem, could lead courts to act in two opposite ways: to impose liability whenever harm is done, or to impose liability only in exceptional cases The German and Italian Solutions While French authors begin with a text that suggests any damages compensable, German interpreters begin with one that envisions liability only for injuries to certain rights. According to § 823 of the German Civil Code, individuals are not liable unless they intentionally or negligently injure "the life, body, health, freedom, property or similar right" of the victim. Finally, § 826 imposes liability on anyone who intentionally causes harm to another in a way that is deemed to be immoral. Thus liability requires something more than fault: Either, objectively, injury to a specific right, or, subjectively, the intention to do wrong. The importance the German law assigns to the intention to do wrong seems, in principle, incompatible with French law which ignores the distinction between intentional wrong and simple negligence. Towards the end of the last century, French courts imposed liability for making a void contract, for seduction, for misleading information, for unfair competition, and so forth. As a result, French jurists could not help but break with their traditional view. The courts in Germany, at the same time, felt the need to impose liability in the same types of cases. In Germany, however, abandonment of the traditional formula was not necessary to the same extent. The legislator, in drafting the code, was able to enumerate the cases in which Comparative Private Readings 24  liability would be imposed. The recognition of these new torts was not hindered in Germany by the principle that there must be a violation of the right of another. 💡 German law does require the violation of such a right but the interpreter can always add new rights to the traditional set, rights, for example, such as the right to the goodwill of a business. If there is no injury to a specifically protected right, there is no tort except in the case of intentional wrong. enumarate: birer birer saymak The French Civil Code does not distinguish whether fault is intentional or not whereas the German Civil Code emphasizes the distinction. Nevertheless the case law is similar: In France the judge imposes liability for intentional wrongdoing by first acknowledging that the wrongdoer has acted in the exercise of a right and then insisting that since he intended to do harm he has committed an abuse of right. This pattern of reasoning, expressed in various ways, has allowed the French courts to reach results like those of the German. It has been used to impose liability for unfair competition, abuse of process, intentional injury to exclusive contractual rights, which are the classic cases in which, in Germany, liability is imposed under § 826. We have thus seen two different logical patterns: 1. According to one, which works by addition, all injuries to a right plus all similar cases result in liability. 2. According to the other, which works by subtraction, all damages give rise to liability unless there is some defense. It should not seem clear that, by using this logic, any practical result may be justified. As concretely applied, therefore, the two patterns bring about similar result Italian Solution The situation in Italy is hybrid. Comparative Private Readings 25  The legislator does not expressly require the violation of a right for liability to be imposed but does characterize the damage as "unjust." article 2043 By failing to clarify this almost philosophical and vague idea of "injustice" he grants the judge true discretionary power. The Italian judge, however, does not exploit this power. During his training at the University, he has learned the two formulas just mentioned: the one imposing liability only where there is injury to a right, and the other imposing liability when anyone is injured. 💡 He himself, follows the rule of minimum effort: he applies the narrower rule when he does not impose liability and the broader rule when he does. The Situation in England and the United States In England and the United States, until recently, liability was imposed only in rigidly delimited types of torts. The type of conduct and injury that gave rise to liability varied from one type of tort to another. Trespass required that one interfere with the property of the victim, conversion required that one behave as the owner of another's property, nuisance required that one interfere with the use of property, and so forth. No relief was available for wrongs that did not belong to one of the recognized types. 💡 Towards the end of the last century, something changed. "Negligence" came to be recognized as a tort. Remedies for negligence came to be given in areas in which, until then, liability had been based on other torts such as trespass, conversion, nuisance, and so forth. (When this evolution was completed, an action for negligence had become the most frequent remedy in the area of extra contractual liability.) Comparative Private Readings 26  💡 The elements of an action for negligence are four: (a) a duty of care, (b) a violation of this duty (c) a harm (d) which is caused proximately by the violation. The requirements that there be a violation of the duty of care, harm, and causation, correspond to the familiar continental requirements that there be negligence, harm, and causation. Liability is imposed in English and American law if these elements are established and the defendant was under a duty to act with care. At first, the duty to act with care was rather restricted. That is to say, there was no general principle of liability for negligence. With the passing of time, the range of acknowledged duties of care increased. Jurists and courts began to speak of an implied duty of care owed by anyone performing any activity that might cause harm to others. - Hukukçular ve mahkemeler, başkalarına zarar verebilecek herhangi bir faaliyette bulunan herkesin borçlu olduğu zımni bir özen yükümlülüğünden bahsetmeye başladı. In some cases, as in France, liability was not imposed but the failure to do so was explained by a series of policy considerations. It would appear, then, that common law courts are not longer imposing liability according to the type of tort that has been committed as they did in the last century. It would seem that they are applying a general principle of liability for negligence like the ones we have seen in Continental Europe. 💡 In reality, however, when we examine the case law we can see that this appearance is deceptive. (aldatıcı) An extension of liability has undoubtedly taken place and may be seen in numerous cases in which it was once usual to deny relief on the grounds that there was no duty of care: For example, the liability of manufacturers, employers, occupiers and owners of land, rescuers, trespassers, prenatal injuries and so forth. Yet liability is imposed in well-defined contexts. Sorumululuğun sınırlarında inkar edilemez bir genişleme oldu. Daha önce duty of care yani özen yükümlülüğü olmadığı için telafinin reddedilmesinin olağan olduğu Comparative Private Readings 27  birçok davada daha sonradan kullaılmaya başlanmıştır. Ancak sorumululuk hala iyi tanımlanmış bağlamlarda dayatılır. First and foremost, it is generally imposed only when there has been physical injury to person or property, that is, in cases reminiscent of § 823 of the German Civil Code. In the vast sector of purely economic loss, a remedy is given in only well- defined cases: For example, those concerning the liability of a professional, of an officer, of a subcontractor, and so forth. This chart suggests certain observations: First, where a general rule of liability has been adopted, as in England, America and France, so also have a series of exceptions to that rule. Thus, the case law and even the scholarly doctrine in these countries is considerably closer than one might expect to the situation that prevails when liability is imposed only for particular types of tort. German doctrine, as the chart shows, is an agreement with the German Civil Code. To understand to scope of the Code, it is necessary to read not only §§ 823 and 826 but the entire chapter devoted to extra contractual liability. We can then see that there is a split in the Code between overall definitions, on the one hand, and particular rules, on the other. The particular rules afford protection to any legislatively protected interest. Finally, in Italy, scholarly opinion is divided between those who speak of types of damage which give rise to liability, thus moving toward the German position, and those who adopt a general rule of liability and then recognize particular exceptions, as do the French. Our conclusion, then, is that one can see transnational operational rules, and hence the existence of a uniform application of law throughout the West aside from a certain delay in the pace of evolution in Italy. This uniform law is at a midpoint between the scholarly formulas used in France, England and the United States, on the one hand, and in Germany, on the other. It is at a midpoint, that is, between a formula enunciating a general principle of liability and one founded upon particular types of injury Comparative Private Readings 28  Sonuç olarak, transnasyonel operational rules Batı’da İtalya’daki evrimin hızında yaşanan kesin gecikmeden dolayı hukukun uygulanması unify edilemese de, transnational operational rules hala görülebilmektedir. Bu uniform edilen hukuk, Fransa, İngiltere ve Amerika’daki scholar formulaları ile Almanya ve diğerlerinin ortak noktasıdır. Bu, genel bir sorumluluk ilkesini ifade eden bir formül ile belirli yaralanma türlerine dayanan bir formül arasında bir orta noktadadır. Comparing these results with those we have reached in our discussion of contract, we see a clear difference: In the area of tort liability, the strongest oppositions appear to be at the level of general definitions. The extreme positions are represented by general scholarly formulas and, a short distance behind, by overall legislative rules in France and Germany, whereas, moving toward "midfield," we find the more specific statutory formulations, the detailed scholarly solutions, and, finally, the operational rules applied by courts. These findings do not confirm the hypothesis we suggested after our discussion of contract law: that like legal formats of different legal systems tend to resemble one another more than they resemble unlike legal formants of the same system. Farklı hukuk sistemlerinin benzer hukuki formatları, aynı sistemin hukuki formasyonlarından farklı olarak birbirine daha fazla benzemektedir. There is, however, a similarity in our findings as to both contracts and torts: In both cases, the overall definitions generalize a rule instead of limiting its application. A contract would always appear to be formed by the consent of both parties; damage would seem to be always compensable, or liability to be always dependent to a right. The operative rules, in contrast, are more articulated ***Our findings thus confirm the belief, rather common among persons acquainted with law, that scholarly doctrines and general formulas are often too "abstract" (that is, too prone to make unauthorized generalizations) and Comparative Private Readings 29  too "far from life" (that is, too prone to forget the significance of some elements of the concrete case). ***Finally, we can see reconfirmed one of our observations on French legal thought. The French definition of tort uses two terms (negligence and harm) rather than three (negligence, wrongfulness, and harm). Here, as we have seen earlier, French definitions "simplify" their analysis of a legal concept. Thus, as we have seen, the French will speak of "will" instead of "will and its outward manifestation" in their discussions of contract A FINAL APPLICATION: THE TRANSFER OF MOVABLE PROPERTY The main problem is the transfer of movable property. The elements required by various legal systems are three: (1) consent, (2) "cause" which is an element that explains why consent was given or should be respected, and the (3) delivery of the property accompanied by the will to transfer it. To transfer movable property, each system might require only one element (consent alone or delivery of the property alone) or more than one element (consent and delivery, or consent and cause). To begin with, we may observe a contrast between the Roman and the Italian rules.: In Roman law property is transferred by delivery (traditio) coupled with the will to alienate the property (with only a minimal imbalance of causa). Under Italian law property is transferred where there is consent coupled with cause. In order to understand the revolution that occurred we must look to period of the ius commune when Roman law was in force throughout Europe. During this period, a greater significance was accorded to the presence of "cause." Consequently the requirements for a transfer of property were thought to be, not mere delivery with an intent to alienate, as in the original Roman system, but as a valid contract (titulus) plus delivery (modus) From Medieval Roman Law to the French and Italian Solutions Comparative Private Readings 30  A further change then took place in France. Its result appears explicitly in Article 1138 of the French Civil Code: "The obligation to transfer a thing is perfected by the consent of the contracting parties alone. It makes the creditor the property owner even though delivery has not been made...." The legislator in Article 1138 has adopted an unusual legislative technique. He has not merely listed the elements necessary to transfer property. He has pointed out that a delivery is not necessary. Some of the scholars mentioned that, according to the provision, the pure meeting of minds is enough for the transferring property. A cause is not needed. However, the legislator opens a door for another interpretation via Article 1101. In France, before the Code, the law theoretically required delivery (traditio) based on the "cause" or reason why delivery should transfer property (titulus). Superimposed on this rule was the practice, widespread in the Middle Ages, of dispensing with the physical transfer of property and accepting, as a substitute, an agreement by which the transferor, who had not parted with the property, nevertheless recognized the transferee as its possessor. superimposed:birleştirilmiş (Bu kuralın üzerine, Orta Çağ'da yaygın olan, mülkün fiziki transferinden vazgeçilmesi ve onun yerine, mülkten ayrılmamış olan devredenin yine de devralanı kendi mülkü olarak tanıdığı bir anlaşmanın kabul edilmesi uygulaması da eklenmiştir.) Indeed, in sales and donations, French 18th century jurists considered such an agreement to be implied even when it was omitted. Let us now consider two other articles of the French Civil Code: Article 1583 and Article 938. According to the first: a sale is perfect between the parties and the property is acquired by right by the purchaser from the seller at the moment there is agreement as to the thing and the price even if the thing has not been delivered nor the price paid." According to the second, "a duly accepted donation is effective upon consent of the parties alone, and the property in the object is transferred to the donee Comparative Private Readings 31  without need of other delivery." (the reference to "other delivery" suggests that, in the drafters' mind, there has already been a first delivery. Presumably they meant the "presumed" delivery of which they were accustomed to speak.) When we read these provisions together with Article 1138, we arrive at the following procedure for transferring property: 💡 The consent of the parties, meaning consent and "cause," creates an obligation to transfer (obligation de livrer) which the law then declares to be perfect (parfaite) or already accomplished so that the person to whom this obligation is owed immediately becomes the owner. Strictly speaking, the transfer of property is not produced immediately by consent but is produced by the intervention of the legislator who declares the obligation to transfer property to be extinct at the very moment in which it is born. The Italian Civil Code of 1865, art.1125, extended the scope of the solution by providing that the acquisition of a right in rem is the result of a "convention" and not of an "obligation to give." The current civil code expressly provides that a contract may produce rights in rem as well as obligations. “... property... is conveyed... as a result of legitimately manifested consent" From the Medieval Roman Law to the German and Austrian Civil Codes Savigny mentioned two essential elements for transfer of property: the will of both parties that property be transferred, and delivery. Comparative Private Readings 32  💡 The first element may be called "contract" if by that term we mean a pure meeting of the minds, not a contract supported by causa. "Contract," in this sense, does not correspond, therefore, to the titulus of the medieval Roman law. The absence of a causa does not prevent the transfer of property and is important only because it may give rise for an action for unjust enrichment by the party who is paid without a justification. Thus delivery is a crucial element, the "modus" of the Medieval Roman law. Before delivery, in the case of alms, there is nothing, not even an obligation to transfer property, and after it the property has already been conveyed. If the person transferring property did so without a justification, if, for example, he delivered as part of a void contract which he believed to be valid, he will be protected by an action for unjust enrichment. Thus, in contrast to France, where the medieval Roman law was simplified by eliminating the requirement of modus, in Germany, it was simplified by eliminating the requirement of titulus. Austria codified before Savigny's solution spread. The legislator therefore remained faithful to the medieval Roman law which required both titulus and modus. These requirements are expressly stated in §§ 425-26 of the Austrian Civil Code. 💡 Thus, while the French Code Civil retained the ideal of titulus, and the German Civil Code the idea of modus, the Austrians retained both requirements The English System In common law, personal property is protected by, a number of different personal actions, rather than by a general action such as the continental rei vindicatio. Of these personal actions the most significant and similar to rei vindicatio is the action of conversion. The will necessary to transfer property between the parties must be expressed in a contract which must be accompanied by consideration. Moreover, the contract Comparative Private Readings 33  transfers property only between the parties themselves. That is the rule of the traditional common law as expressed in the Sale of Goods Act of 1893 reenacted on various occasions, most recently in 1979. The contract of sale transfers property at the moment set by the parties. When the contract has been entered into and payment made, delivery is necessary to make the transfer effective for all purposes. From Overall Rules to Applications If the Austrian rule requiring both titulus and modus were rigorously applied, a person who has delivered property without titulus, that is, without an underlying causa or justification, should have not only an action for unjust enrichment but an action to reclaim the property since property rights could not pass by delivery alone. However, the rules of the Austrian Code that concern unjust enrichment deny an action to a person who has delivered property and was not in error about the validity of the titulus. (Ancak Avusturya Kanunu'nun sebepsiz zenginleşmeye ilişkin kuralları, mülkü teslim eden ve tapusunun geçerliliği konusunda yanılmayan bir kişiye dava açılmasını engellemektedir.) Scholars consider it certain that because there is no action for unjust enrichment there cannot be an action to reclaim the property, or to put it another way, delivery that takes place without a causa yet without error will transfer the property. Austrian scholars have pointed out this consequence, and, consequently, Savigny's theories have enjoyed a certain popularity in Austria: Although the general rule requires both titulus and modus, specific rules such as the one just mentioned treat modus alone as sufficient. Nevertheless, the Austrian system is still different than the German. In Germany, delivery will transfer property, even if the person making delivery is mistaken as to the validity of the titulus. Awareness of this difference has led Austrian scholars to move away from Savigny's thesis and to see a donation in a delivery made without error but without any preexisting obligation. Today, scholars tend to see any lawful intention as a causa of the delivery and not merely the intention to satisfy a preexisting Comparative Private Readings 34  obligation. According to that view, consequently, modus must be accompanied by a causa is taken to mean any lawful intention. The Austrian system may, therefore, be placed in an intermediate position between a system that requires modus alone and a system that requires both titulus and modus. A more important transformation is found in France. According to Articles 1235 and 1376 of the French Civil Code, a person can recover a payment he made when the payment was not due because there was no debt to be paid. "Every payment presupposes a debt; whatever has been paid that was not owed can be recovered." Her ödeme bir borç gerektirir, ödenmiş olup da borçlu olunmayan her şey geri alınabilir. Despite the statutory text, however, French jurists have continued to follow the Roman rule in which recovery is possible only if the person making the payment was in error. Tazmin etme yalnızca ödeme yapanın bir hata içinde olması halinde mümkündür. It seems obvious to the French that, as a consequence, a person who was not in error cannot claim to be the owner of an object he has delivered in payment or bring an action, as owner, to recover that object. Thus, the French jurists conclude, that the person delivering the object in payment has lost ownership of the property, in other words, that his delivery of the object has transferred ownership. In France, therefore, whoever delivers an object in payment, knowing that there is no debt to extinguish, transfers ownership. - BİR DAHA OKU Article 931 of the French Civil Code requires notarization for a donation to be effective. Yet the French jurists have always recognized that a donation is effective once delivery has been made. This conclusion reenforces the opinion just mentioned that one cannot reclaim a payment that was not owed unless one was mistaken. Whoever pays what is not owed, knowing that he owes nothing, is considered a donor. - Belki de bu yüzden bağış sözleşmesi için noter onayı isteniyordur. In France, as in other countries, one who pays to fulfill a natural obligation cannot reclaim what he has paid. In practice, any delivery made with the intention of Comparative Private Readings 35  transferring ownership will be made either out of a sense of duty, and so be treated as a payment to fulfill a natural obligation, or out of liberality, and will be treated as a donation accompanied by delivery. In either case, ownership will be transferred by delivery. A remedy will be available, however, if the person making payment was in error. We can conclude that the French solution is similar to the one we found in Austria. We can also say that in France, a person who wishes to alienate property has his choice between entering into a contract with a cause and delivering the property without error intending to alienate. In Germany, as well, the law as applied differs from the law in the Code. The law in the Code centers on modus. In practice, however, ownership can pass through an agreement, the possessory accord, which takes the place of delivery. Moreover, delivery can be made subject to a condition-even a tacit condition-that it will not transfer ownership if the underlying contract is ineffective. tacit:zımni Mülkiyet, teslimatın yerini alan bir anlaşma, yani zilyetlik anlaşması yoluyla geçebilir. Ayrıca teslimat, temel sözleşmenin etkisiz olması durumunda mülkiyetin devredilmeyeceğine dair bir koşula (zımni bir koşul da olsa) tabi tutulabilir. In Austria, Germany and France ways have been found to transform the general rule. In England, ways have been found to prevent the general rule from being applied. The Italian solution is like the French, except that the requirement of titulus for ownership to pass has been retained except for modest concessions in the case of executed donations and the fulfillment of natural obligations. In English law, the doctrinal formulas do not acknowledge the rule that the courts actually apply. The Sale of Goods Act does not provide for the case in which an object is delivered which is not owed pursuant to a contract. The effect of delivery was not clear until 1913, when it was held in Stock v. Wilson that ownership is transferred by delivery accompanied by an intent to transfer ownership, even if the delivery is made through the error of a person who wrongly believes he is obliged to deliver. Comparative Private Readings 36  In that case the person making delivery brought an action of conversion, an action that lies against someone who finds himself accidentally in possession of a thing without title to it. When the adverse party claimed title through delivery, he argued that delivery creates but does not justify possession and hence does not give title. The court rejected this claim, stating that delivery creates a title in the person who takes delivery. Thus, in England, we find both a system based on contract and a system based on delivery with the intent to transfer ownership. A person may choose between the two systems as he can in France but in England delivery seems to have greater effect in that it can transfer ownership even in the case of mistake. The English system thus resembles the German in always requiring delivery in order to make the passage of property valid in front of every third party Summary: The rule that delivery alone is necessary to transfer ownership has an element in common with the rule that demands both modus and titulus. It also has an element in common with the rule that gives the transferor an option between delivery and entering into a contract. General Formulas and Operational Rules Now, however, we must consider contemporary history, and in particular, incongruities which exist at the same time within a given legal system and are due to the multiplicity of legal formants of that system. An example would be a lack of harmony between statute and the law as applied or between operational rules and the formulas which jurists have deemed to describe those operational rules. The aim of the student of comparative law is to determine whether these instances of disharmony follow predictable and rationally explicable patterns. Three interesting contrasts are those between statute and the law as applied, the law as applied and the law as described, and between the situation the law deems to be normal and the situation that is normal in a sociological sense. These three Comparative Private Readings 37  contrasts give rise to incongruities that one can find in France, Germany, the low countries, Switzerland, Hungary and England. incongruties: uyumsuzluk In France, the Code contains a variant of the solution represented by point: the transfer of ownership depends upon the will to obligate oneself, the only exception being in the field of donations. Scholarly doctrine, in contrast, identifies the contractual will and its effects: it requires only a will to transfer property. The case law permits transfer of ownership by delivery as long as the transferor is not in error. The scholars seem unaware of this lack of harmony. The incongruity, then, works in two directions. The shift from the Code to the case law goes form t to i. The shift from the case law to the law as taught by French jurists goes form i to t and from t to v. After the Italian Code of 1865 was enacted, interpreters moved in two directions. Some followed the French toward a system in which there is an alternative between transferring ownership by contract and by delivery. Others return to the past by postponing the transfer of ownership until delivery, thus requiring both titulus and modus. After the Italian Code of 1865 was enacted, interpreters moved in two directions. Some followed the French toward a system in which there is an alternative between transferring ownership by contract and by delivery. Others return to the past by postponing the transfer of ownership until delivery, thus requiring both titulus and modus. In Russia under the Svod Zakonov, the solution borrowed from France, represented by point t, was shifted by interpreters toward that of point b. The GK] [RSFSR of 1922, which required titulus only, was replaced by the Osnovy of 1961, which, under the pressure of interpretation, was taken to require both titulus and modus. In Austria, a system one could represent at a point half-way between b and e gave Comparative Private Readings 38  rise to different scholarly formulations of doctrine that one can locate at points b and m. Here, as usual, the scholars moved toward the least vague solutions. In England, one finds considerable variety. Ownership passes by contract, equivalent to the civil law titulus, or, alternatively, by delivery, equivalent to the civil law modus. Nevertheless, jurists sometimes describe the system as though contract were always required and sometimes they even speak of will in a pure form. Thus we find the solutions represented at points a, t, and v. Ownership, not only as between the parties but for all purposes, passes with delivery, and yet jurists say that one needs both the contract and the delivery. Thus we find the solutions represented at points m and c. Germany still holds to the position that delivery alone passes ownership. Yet, in practice, the effect of the rule is often avoided by two mechanisms mentioned earlier: a condition is enforced which makes the effect of delivery depend on the validity of a contract (a solution that can be represented at m or c), and a possessory accord is entered into which passes ownership without delivery (a position that can be represented at m or b). Should these two devices mash together, also German law could be seen as a system T. In systems in which mere delivery transfers ownership, theorists still feel in need of an explanation. The effect of delivery seems to them to be an empirical proposition which they have to explain from a dogmatic point of view. They have done so in various ways: Sometimes the concept of "abstraction" is invoked. "Abstraction" means, roughly speaking, that an act is effective without regard to the underlying transaction of which the act is a part. We have seen that Savingy fastened this solution on German law. A second explanation is based on donation. If the transferor has delivered a thing without being obliged to do so by some prior transaction and without erroneously believing he is obliged to do so, then he must have wished to make a gift. In English law, this explanation is, so to speak, official. It has also found supporters in Austria and, within the limits the system allows, in France. It has been used along with other explanations in Switzerland. Comparative Private Readings 39  A third explanation is that it is possible for a action to validate an earlier, albeit void, act. If someone delivers a thing without being obliged to do so, he is said to have validated a prior act. This explanation prevails in Argentina. Once again, then, the same phenomenon is explained in three different ways. The Transfer of Ownership and the Attributes of the Owner The attributes of ownership, however, include: (1) the power to demand possession from the other party, (2) the power to demand possession from third parties who lack title, (3) the power to dispose of the thing in favor of third parties, (4) the right to whatever fruits the thing may produce, (5) the bearing of the risk of the destruction of the thing, (6) the right to guaranty one's debts by a security interest in the thing, (7) liability for damage caused by the thing to others, and so forth. We have to ask whether these various attributes are transferred simultaneously or not. In any system, the buyer can demand possession from the seller as soon as the contract is made provided he is not late in paying the price. In a system in which the contract of sale transfers ownership, the buyer can demand possession because he is the