Civil Code Selected Translation: Legal Acts

Author: S
Publisher:
Publish Date: 1997-08-01
Features: This book mainly includes the following content: various legal acts, capacity, the proper formation and accurate expression of intent, cause, void legal acts, terms, conditions, the establishment of obligations, the determination and interpretation of legal acts, legal acts through third parties. Part III of this volume of Selected Translations of the Civil Code, titles "Legal Acts." In the Civil Code, there is no part with such a title; in many modern civil codes, this part is also not included (e.g., the 1804 French Civil Code, the 1865 Italian Civil Code, the 1942 Italian Civil Code, the 1855 Chilean Civil Code, and others that adopt this model include the Ecuadorian Civil Code, the Colombian Civil Code, the 1870 Mexican Civil Code, and the 1928 Mexican Civil Code). However, modern legal works often include this part or discuss the general prerequisites for legal effects under a legal system, while some civil codes also include it in the general principles section (e.g., the 1900 German Civil Code, the 1917 Brazilian Civil Code—though the latter mentions legal facts and legal acts—the 1984 Peruvian Civil Code, which also mentions "legal acts").
Roman jurists used the term Negotium, meaning "transaction," "act," or "affair." They also used terms like Actus and Factum, with Actus meaning "act" or "document," and Factum meaning "act" or "fact." However, these terms did not have a specialized meaning in Roman law; they only took such meaning in rare cases and only when combined with other words to form a specific technical term (e.g., Negotiumgestio, meaning "management of affairs," later extended to "unjust enrichment." Actuslegitimus, meaning "lawful act," referring to acts compliant with the). In fact, Roman jurists did not develop a consistent academic concept regarding the prerequisites under which all general acts are given legal effects (events and human acts), and for this reason, they did not establish a coordinated, precise, and specialized meaning for the aforementioned terms, which was only achieved in the Middle Ages and modern times.
However, Roman jurists conducted in-depth studies on the issue of intent, the normal formation and correct expression of intent, as well as the possible defects arising from it—formal issues, causal issues, invalidity issues, additional factors, interpretation issues, and acts through third parties. They completed these studies through detailed analyses of various types of contracts (particularly Stipulatio, meaning "formal oral contract," and sales, wills, and Traditio, meaning "delivery."). Although they used different terminology, they also encountered issues such as the transformation of void acts into valid ones to preserve their core elements of intent or cause. Moreover, due to their acceptance of the fundamental, supreme, and dominant principles of a society of equal subjects, and their exceptional sensitivity in construction and systematization, they developed rigorous systems—some implicit, others merely nascent—which laid the foundation for later developments.
Medieval jurists (comentators and glossators) and modern jurists (Spanish scholastic jurists, natural law jurists, Pandectists) utilized the profound and invaluable achievements of Roman jurists. They selected and completed the principles and rules established in these achievements, thereby summarizing the key points of certain principles and rules or consolidating the key points of other principles and rules. As a result, over the centuries from the Middle Ages to the modern era, these systems were constructed into universal, systematic categories such as "legal facts," "lawful legal acts," "unlawful legal acts," and "legal acts," with their most important rules and possibly necessary exceptions discussed and determined. Notably, this work reached maturity in the modern era, with the achievements of the 19th century particularly emphasizing the value of the "free will" of individuals considered in a personalistic manner. B. Windscheid defined a legal act as "a private declaration of intent aimed at producing legal effects." Later, in the 20th century, legal acts were emphasized as self-regulation of interests achieved through legal acts, and in important respects, they were regarded as tools for exercising "private autonomy."
The selection of primary sources in this book aligns with the perspective on the modern development of Roman law mentioned above, which I explicitly stated in the "Letter to Chinese Readers" of this volume of Selected Translations of the Civil Code." (See Huang Feng's translation of Selected Translations of the Civil Code: Justice and Law, China University of Political Science and Law, 1992, pp. 8–9). It is certain that this volume, though rooted in the explanations and conceptual systems of ancient jurists and Justinian, diverges significantly from them in most aspects. For this reason, when reading this volume, it is important to note that the primary sources included herein originally addressed narrower issues, such as the essentials of various contracts, transfers of acts or the establishment of property rights, wills, legacies, etc. On one hand, this volume is supplemented by primary sources from other volumes that can be transformed into the category of legal acts and are lawful legal acts; on the other hand, it enriches the discussions of specific legal acts in other volumes. In other words, it can be said that the primary sources included in this volume serve a "dual-purpose" role: first, they contextualize the content of each primary source within the specific system for which it was written; second, they summarize the content of each primary source to extract general rules of legal acts.
The initial selection of primary sources was completed by Professor E. Giuffré of the University of Naples, Italy, and later supplemented by myself and Dr. A. Betruch. The translation from Latin was carried out by Professor and Dr. Xu Guodong of the Central South University of Political Science and Law in Wuhan, and was proofread by the Italian working group composed of Dr. Aldo Betruch and Dr. Giuseppe D'Onghia. This work was conducted during a long research stay in Rome, funded by the National Research Council, at the Department of Roman Law, Second University of Rome (Tor Vergata), within the framework of an agreement between China University of Political Science and Law and the Research Group on the Dissemination of Roman Law. The publication of this volume was also made possible within this framework, with funding from the National Research Council.