Ius commune and Croatian property law

Abstract

The purpose of paper is to analyse the significance of the ius commune in the contemporary Croatian property law system and the potential role of its rules in the Europeanization of national property law. The first part of the paper will prima facie comment on the use of ius commune rules as an indirect source of property law, particularly in the Croatian judicial practice. Subsequently, the paper explores the possibility of treating the ius commune rules as a direct source of property law in the contemporary Croatian legal system. Author concludes that ius commune rules, according to the provisions of the Law on the Application of Legal Rules passed before April 6, 1941 (Zakon o načinu primjene pravnih propisa donesenih prije 6. travnja 1941. godine), can have the status of a source of contemporary Croatian property law. Their application is possible, as it was seen primarily owing to the fact that ius commune was in force on 6 April 1941 as a subsidiary law on the territory of Croatia in the areas belonging to the former Hungarian legal area. The final part of the paper especially questions can a more intense application of those ius commune rules that contain principles of property law common to almost all European legal systems contribute to a further Europeanization of the contemporary national property law. In the view of author, one of the possible ways to improve the process of Europeization of the national property law systems is to recognize the harmonising effect of property law rules of ius commune which are to be found in the judicial acts of the European Court of Justice or the European Court of Human Rights (e.g. accesorium sequitur principale; beatus possidens; bona fides praesumitur; in pari causa melior est condicio possidentis; nemo plus iuris ad alium transferre potest quam ipse habet prior tempore potior iure; superficies solo cedit) and to use them systematically in the national judicial practice. Such an approach could prove in concreto that one ... can use the results of the legal historical analysis as a starting point for harmonisation in areas where there exists a clear need for a European system of propety law.