Textbook of Pandects or New Style of Legislation in Estonia?

• Author: Marju Luts
• Pages: 152-158

Marju Luts

Textbook of Pandects or New Style of Legislation in Estonia?

Introduction

I would like to start with some quotations and the reader could try to guess their origin:

(1)"A servitude of footpath grants the right to walk or ride on a bicycle on a footpath through a servient immovable."

A servitude of livestock path grants the right to drive livestock and walk on a livestock path through a servient immovable. To facilitate the driving of livestock, an entitled person may build a fence or obstacles at the edge of the path if this is possible without causing damage to the owner of the servient immovable. A servitude of livestock path does not grant the right to pasture animals on the servient immovable.

"A servitude of roadway grants the right to drive by vehicle on a road through a servient immovable. A servitude of roadway includes a servitude of footpath."

(2)"A servitude of projection grants the right to build on one's construction a balcony, shelter or other such part which projects over the immovable of a neighbour."

(3)"A servitude of stillicide grants the right to permit water from rain or snow to flow from the roof of one's construction to the immovable of another both from the eaves and by a pipe."

It suffices for examples although the list could be further supplemented. Those who thought that the extracts originate from some 19^th century pandect book were wrong. All the quotations have been taken from the applicable Estonian Law of Property Act¹. The first excerpt quoted subsections 186 (1)-(3) (servitude of way), the second section 194 (servitude of projection) and the third section 195 (servitude of stillicide). The law defines yet other individual types of real servitudes in a similar manner. Section 188 concerns servitude of lines, section 189 servitude of aqueduct, section 190 servitude of access to water and watering of livestock, section 191 servitude of pasturage, section 192 servitude of support, section 193 servitude of wall, section 196 servitude of height, section 197 servitude of light, section 198 servitude of prospect, and section 199 servitude of protective zone. However, such causal regulation does not imply as if the Estonian Law of Property Act lacked general provisions concerning real servitudes. Sections 172-177 point out the definition of real servitude and provide the conditions for the creation and extinguishment thereof. Sections 178-185, in their turn, determine the conditions of and limitations to the exercise of real servitudes. Thus, already these general provisions contain a rather detailed regulation of the institute of real servitudes. Hence it is natural to ask why the law contains a separate division of the individual types of real servitudes. Such a way of posing questions is supported by the fact that the last section of that division renders the previous ones pointless in fact. Namely, section 200 states plainly: "In addition to the real servitudes provided for in this Act, other real servitudes which correspond to the definition and content of a real servitude may be established."

Consequently, sections 186-199 do not provide an extensive list of legally recognised real servitudes. Thus, the inclusion of the regulation of the individual real servitudes in the law cannot be regarded as application of the numerus clausus principle that is characteristic of the law of property. Also, it cannot be claimed in the case of any type as if their particular regulation was in the position of a special provision amending the general provisions of real servitudes. Therefore, it is not lex specialis derogat legi generali that has motivated the compilers of the Law of Property Act to include these provisions in the Act.

An answer to the question why the Estonian Law of Property Act contains such causal regulation of the individual types of servitudes cannot be found in the commentary provided by the main authors of the Act either. The commentary states plainly that it is matter that does not belong to the Act: "Sections 186-199 should have been deleted from the draft as most of the servitudes provided are no longer applicable today. Some of the types of the servitudes provided (servitude of lines, servitude of wall, servitude of support, servitude of way, servitude of aqueduct) partly repeat the immovable property ownership restrictions set out in the Law of Property Act and their practical use will continue to decrease." ² Thus, the theorists themselves claim that the regulation of individual real servitudes should have been excluded from the Act. The more relevant becomes the question of why this was not done. Or what has given rise to the idea of such detailed regulation, which is rather unique when compared to the civil codes of other countries? This article attempts to answers these questions by firstly providing an historical explanation and then pointing out some general trends in the Estonian legislative technique and policy.

19th-century legacy

The Law of Property Act, adopted in 1993, was the first part completed of the planned new Civil Code³. The curt words of P. Varul actually perfectly convey the drama and decisiveness accompanying the completion of the draft: "1992-1993: period of decisions and choices. This was the most important period in choosing the private law system and model ? legal policy decisions could be taken independently without potential interference by Moscow. The main choices were made in this period. The passing of the Law of Property Act and its entry into force on 1 December 1993 was the cornerstone." ⁴ The choices mentioned concerned, above all, the possible standards and models for developing reform laws. Alongside with considering foreign solutions, the earlier history of Estonian private law was also examined. What concerns the legal regulation of the individual types of real servitudes observed here, we can seek no encouragement for such approach from any modern foreign code. At this point, it seems that the earlier civil law legislation of Estonia came to be the choice.

For the first time in the history of Estonian private law, a detailed regulation of the individual types of real servitudes has been namely presented in the private law codification of the Baltic provinces, in the Baltic Private Law Code (BPLC), approved in 1864 and entered into force in 1865⁵. It was a codification of the rights of the higher estates of the local provinces (Germ. Estland, Livland, Kurland). The indigenous people of the Baltic provinces Estonians, Livonians and Latvians, constituted the peasantry in the 19^th century and their private law was either common-law based or regulated by means of the agrarian reform laws. The BPLC was one of the codes completed in the course of the general codification movement in Russia in the 19^th century⁶. After the establishment of the independence of the Republics of Estonia and Latvia during the First World War, the estate differences were abolished in both countries and the BPLC was proclaimed applicable to the entire population. In Latvia, the BPLC became invalid in 1937 when a new Civil Code was adopted. The BPLC still served as the major model therefor. In Estonia, a new draft Civil Code was completed in 1936, it was elaborated and processed until 1940⁷. The Soviet occupation discontinued the work and the new code was not adopted. Thus, the BPLC was in force in Estonia until 1940. The BPLC was naturally among the models that were observed when compiling the 1936/40 draft. Consequently, it is historically justified that this code serves as a point of departure for opening the historical background of the current private law reform⁸.

The draft BPLC was drawn up by the former professor of provincial law of the University of Tartu Friedrich Georg von Bunge (1802-1897). His general conceptual views on the analysis of local provincial rights on the scholarly and legislative level may be summed up as follows. The main postulate was that only the existing law was to be codified. Thus, the BPLC intended in no manner to reform the private law of the Baltic provinces. Originally, it was not Bunge who set up the task in this manner. The entire Russian codification movement of the 19^th century proceeded from the same principle. The problem was simply more acute with regard to provinces entitled to special rights. These provinces had been annexed to Russia under a clause that the historically developed local law was to continue to remain valid. Thus, the task to assemble the already existing private law and avoid innovation was already provided for Bunge so to say from outside. Moreover, he adopted it also as his internal belief and attempted to implement it in his scholarly work and codification in as detailed manner as possible⁹. This has given rise to the extremely causal provisions and regulations in the BPLC. The BPLC provisions concerning real servitudes generally originate from Roman law and thus this part provides less drastic examples than family law or law of succession¹⁰...