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Obligation and business law in municipal codes

The municipal law in Central Europe was based on the customary law of local communities, mixed with the law of German colonists, and adapted in later developments through statutes enacted by the towns proper (Gabris 2018, p. 60). The connection between towns based on the system of appellation (the mother town served as appellate instances for filial towns) created a more or less coherent region that followed the law of the leading municipal authority. Three different types (areas) of municipal law could be found in the Czech lands before unification (Hoffmann 1975).

The municipal law of Brno, the capital city of the South Moravian Region, is usually considered the most important for future developments. In its very early history, it was influenced by the privileges of Vienna (Weizsacker 1953), later it adopted some of the principles of Roman law and also created its own statutes containing both public law norms and private law regulations (Gabris 2018, p. 84). As Flodr points out, it was especially the law of obligations and business law which underwent the greatest transformation from its origins due to the incorporation of judgments from the municipal courts (Flodr 2001, p. 248). This shows the frequent occurrence of these cases in municipal courts.

The municipal law of Brno divided loans according their origin: debita ex delicto, which means unlawful debts awarded to the creditor by the court, and debita ex contractu, those based on a contract between creditor and debtor. Further criteria were the amount of the loan (small, medium, large), whether the debtor was a single person or a group, and if the observance was joint or separate (Flodr 1990, art. 128, and 131, pp. 192-4). All these factors were considered by the court when deciding on the procedure to recover the debt. Especially in the case of small debts, the court’s decisions were complicated by formal shortcomings in contracts and therefore pressure grew to record loans by official means (Flodr 2001, p. 249).

The law defined a loan as handing over a thing for temporary use. The legal and factual ownership of the thing continued to belong to the creditor. The loan could be money, but also things including real estate or even animals (Flodr 1990, art. 132, p. 194). The loan contract also included a pledge of property called pignus or ipoteca vel pignus. (Flodr 1990, art. 546, p. 336) It was formed from part of the debtor’s assets, both current and future; however, some things were excluded by law such as bed linen, the clothes of the debtor, as well as religious artefacts or stolen items. (Flodr 1990, art. 397, 548, pp. 219, 336) The municipal law of Brno was the first to define an exchange in the market as either the exchange of thing for thing or thing for money, known as permutatio. (Flodr 2001, pp. 260-1) A contract could be in verbal or written form and concluded before witnesses. The influence of Roman law on these provisions is obvious, which could be described as a typical feature of municipal law. It adopted not only the main ideas, but also the specific Roman law terminology that eventually became used in daily practice (Bohacek 1924).

The main principles of the municipal law of Brno were generalized and compiled in the compendium known as Manipulus vel directorium iuris civilis, whose influence exceeded the borders of Moravia and fundamentally influenced the law in Prague. (Slavickova 2012, p. 21) It was also used in 1534 as the basis for the first failed attempt to codify municipal law in the Czech lands, as well as in 1579 for the more successful draft written by Pavel Kristian of Koldin known as the Town Privileges of the Kingdom of Bohemia (Maly 2013). This codification was of very high quality and contained provisions for town administration, duties of the council, property rights, procedural law, obligation law, inheritance law, family law, and a few rights from criminal law. The issues of the credit market and of usury were treated in several chapters. The first, known as De Venditionibus, dealt with sales and the different types of markets (Maly 2013, art. G.XXXV-H.XXII, pp. 207-22). A section on loans and pledges of debt followed (Maly 2013, art. H.XXIII-XXXVIII, pp. 222-7). The content of the chapter was mostly based on rules defined by the municipal law of Brno with an even greater inclusion of Roman law together with generalization of its key principles (Skrejpkova 2013, p. 712). In this form, Town Privileges received subsidiary validity in relation to the Territorial Law in the second half of the 17th century and remained in force until the issuance of the General Civil Code of the Austrian Monarchy in 1811.

Town Privileges was approved by the King and was used as a tool to unify municipal law in all countries belonging to the Kingdom of Bohemia. Towns that followed the Magdeburg Rights resisted this unification for long time (Slavickova 2013). This alternative legal system was found in many parts of Central Europe including North Bohemia with Litomerice in its centre, and in North Moravia with Olomouc in its centre (Spacil Sc Spacilova 2018). Throughout the existence of these legal islands, close relations with mother cities outside of the Czech lands were maintained, which had Litomerice aligned with German Magdeburg and Olomouc with Polish Wroclaw (Biedrzycka Sc Kutylak-Hapanowicz 2007). Yet the provisions of the Magdeburg Rights were not incorporated in the Town Privileges at all, despite official requests by the councils of these towns (Slavickova 2013, pp. 48-51). Their proposals in 1571, known as the Extract of the Main

Articles (Jirecek 1883), included rules for lending money. However, most of these articles focused on procedural matters relating to the recovery of outstanding loans before the courts (Jirecek 1883, art. 17, 19, 38, 39, pp. 16, 17, 27) and brought nothing new to the issue. The towns in North Bohemia eventually agreed to use the Town Privileges and abandoned the Magdeburg Rights in 1610. The towns in North Moravia followed them by the end of the 17th century (Slavickova 2013, pp. 51-3).

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