Zwischen französischer und österreichischer Rechtskultur*The Code civil in the Jurisprudence of the Free City of Kraków (1815Kraków ( -1846
Between the French and Austrian legal culturesSelected examples from the jurisprudence of the courts of the Free City of Krakow prove that the application of the Code civil was often based on an interpretation of regulations which did not meet the intention and content of the French codification. On the one hand, the courts, through an original interpretation of legal norms, aimed to deliberately circumvent French law in order to weaken its rigor in relation to the rights of women or illegitimate children. On the other hand, the erroneous interpretation of the law showed that the courts were not always able to abandon the way of legal thinking which corresponded to the assumptions of Austrian legislation, but differed from the systemic regulations of the Code civil. An important role in the control of courts over the application of French law was played by the Faculty of Law of the Jagiellonian University. At the request of the parties to court proceedings it checked the compliance with substantive and formal law of two rulings of different court instances on the same content. In the opinions issued, the Law Faculty instructed the courts in such fundamental matters as e.g. the form of legal action for evidentiary purposes (ad probationem).
Contract-nominalism in the Code civil? The validity of bilateral agreements in the judicature of the courts of the Free City of Krakow (1815–1846). The courts of the Free City of Kraków, when applying Article 1325 of the Code civil, adopted a different direction from the courts in Baden or the French judiciary, both of which modified its strict content. In addition to the differences between the Polish, German and French judicatures, there were inconsistencies between individual judgements relating to the form of bilateral agreements in all three cases. As a result, the citizens of the Free City of Kraków, the Grand Duchy of Baden, or France, had no sufficient certainty as to whether their contracts would be adequately protected in the event of a dispute between the parties. The analyzed cases show a convergence of the jurisprudence of the Baden and French courts, which presented a bolder approach to the issue of the validity of bilateral agreements, thereby protecting the Code Civil principle of the freedom of contracts. Kraków courts refrained from such a creative interpretation of the article 1325 and based their rulings on its literal wording. This was partly due to the fact that Polish scholars and judges did not have easy access to the achievements of French jurisprudence at that time. The courts of Baden adjudicated in more favourable conditions, because French and German legal thoughts on the implementation of Code Civil intertwined and complemented each other.
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