Performing notarial duties in the process of conclusion of contracts whose subject matter is the acquisition of rights in REM in immovable property located abroad: A few remarks from the view of private International law

Abstract

This paper deals with certain issues of private international law that Serbian notaries public must resolve when performing notarial duties in the process of the conclusion of a contract whose subject matter is the acquisition of rights in REM in immovable property located abroad. The author first deals with the question of whether Serbian notaries public have international jurisdiction to perform notarial duties with regard to these contracts. After that and bearing in mind that the governing law for these contracts is, pursuant to Art. 21 of Serbian Private International Law Act (SPILA), the law of the foreign state in which the immovable property is located, the author tries to clarify whether the notary public applies the rules of this applicable foreign law on the form of the contract or must comply with lex fori (domestic) rules on the form (which are, from the point of view of Serbian notaries public, of procedural nature). Finally, the author explains how, from the point of view of private international law, the notary public should proceed when concluding the contracts on exchange of two immovables, one of which is located in Serbia and the other in a foreign country, given that in such case the conflict-of-law rule of Art. 21 SPILA refers to two applicable laws - Serbian (domestic) law and foreign law.

Comparative legal perspectives on voluntary restraints: Analyzing the adaptation of preventive conditions on property rights

“…From the point of view of the proponents of this view—that it is merely an exception or a departure from what the property originally confers on the authority to act of the money subject to the right—it is a voluntary modification of the property system for a temporary period in order to achieve a legitimate interest. The law is the entity that has given the intent this power to modify the property system, so this modification must be within the limits that are consistent with the intended interest, and therefore the preventing condition in its provisions is subject to the requirements of this interest, so that these provisions differ, according to this interest [ 43 ], from one case to another [ 5 ]. This study agrees with these points that indicate the scholars' view of preventing condition as a voluntary modification of the ordinary property system [ 5 , 7 , 19 , 41 ].…”