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State as an Heir: Balancing Public and Private Interests in Georgia and Europe. Part I: Comparative Overview
No full textThe Civil Code of Georgia establishes the state’s right to inherit heirless estates. According to the Georgian law, the state is referred to as the legal successor. Should we always consider the state as the legitimate successor, or is this only a necessity to maintain public order? Does the state have a legitimate public interest of heirless estate and how can this be balanced against the private interests? The following subjects will be discussed in this article from the perspectives of Georgia and European countries. The question of whether the state should assume ownership of the private property in the absence of heirs is a subject that has given rise to significant discourse on topics of justice, property rights, and the role of the state in private affairs. Numerous scholars have presented a range of arguments both in favour of and in opposition to the notion of the state becoming the recipient of property that lacks heirs. Given the legal nature of the problems, it is necessary to explicitly define the state’s status as a special legal heir in Article 1343 of the Civil Code of Georgia to prevent the confusion of rights and duties from leading to excessive state intervention in inheritance matters. European countries’ experience is very important for creating a new legal status of the state. Because of the problem of transferring an estate when there is no heir, balancing public and private interests is a most popular issue. The purpose of this paper is to examine the rights and obligations of the state as a legal heir under the different regulations and how these principles affect inheritance relations in socio-legal perspectives. It compares how this issue is addressed in other European countries’ legal systems and draws conclusions about the dual role of the state based on the different practice. This article aims to explore the theoretical possibilities about the state’s right on the heirless estate, offering valuable recommentations for the Constitutional Court of Georgia in justifying and making decisions on this issue
ანდერძის თავისუფლების შეზღუდვა კომლში - საქართველოს მოქალაქეთა კერძო საკუთრების პრობლემა
No full textNowadays, the limitation of the freedom of will when obtaining ownership rights to household property has acquired tremendous legal importance because the registration of household property is manifested in frequent inheritance disputes, and citizens have been deprived of the opportunity to make a will for years. Consequently, the rule of legal inheritance remained the only means of obtaining ownership of the household property. Increased rates of estate disputes caused by many reasons are more problematic. Some citizens can still not register their property, and these plots are subject to dispute. It is worth noting how the freedom of will was limited in the household and how quickly agricultural plots turned into inheritance disputes. Restricting the freedom of will and other restrictions creates an irreversible situation of unequal distribution of land among citizens, and years later, we will face the reality when the right to own land will lose its self-generating function. The research is directed to evaluating the problem caused by the limitation of the freedom of will when obtaining the ownership right to the household’s property. Also, the research discusses the decisions of the Constitutional Court of Lithuania regarding land ownership.
Keywords: Freedom of will, Household, heir, Household member and non-member heirs, Estate, actual possession, Litigation, Notary
Introduction
Many features distinguish the property of the household. In practice, there are cases when citizens’ demands for household property are based on exclusive interests. Therefore, obtaining the right to own it is problematic because the property relationship between the household and citizens with the right has lost the function of transfer of rights and duties through self-regulation. The response to the problem cannot be carried out if it does not have social compatibility with the circumstances because the change in family ties of citizens in relation to the household is accompanied by a dispute between the heirs, which implies the disruption of the family system by presenting individual interests. Analyzing the decisions of the Supreme Court of Georgia to study the issue of obtaining the right of ownership to the property of a household is an opportunity to form important conclusions. The main task of the research is to highlight the problem of limiting the freedom of will in the household.
1. The Testator and the Heir in the Household
Despite the legal regulation of the status of legal and testamentary heirs in modern private law, it is still problematic to take into account the number of rows of heirs, the distribution of inheritance property, and the interests of the heir and the heirs.[1] If we rely on the mentioned position, it will be reasonable to discuss the status of the heir of the family, which is not perfectly regulated and creates difficulty with the main record of the heir, which is because it is not possible to establish any priority between the claims of the heirs on the property of the family, which will be derived from the law and justified.[2] “Soviet law was familiar with the registration of rights to real estate”. According to the Soviet Civil Code, the acquisition of ownership of a residential house was connected with registration”.[3] Old real estate registrations are of evidentiary value. However, there is a risk that the document’s content may contain conflicting information.
The types of household heirs are not defined by the legislation, which creates a problem in determining the status of the household heir. According to the Civil Code, in the case of inheritance by will, the heirs can be persons who were alive at the moment of the death of the decedent, as well as those who entered into his life and were born after his death, regardless of whether they are his children or not, as well as legal entities. The position is shared that it is not appropriate to separate the heir of the household in the concept of heir, although the distinction may be relevant for registration purposes. In general, “the one to whom the property rights and obligations of the heir are transferred through succession is considered an heir”.[4] To overcome the problem related to the form and content of the household, it is important to develop legal regulations so that citizens have a prior idea of their hereditary status and interest in the household, on which to base their demands, which may be diverse depending on what the heir wants and what his relationship with the household is.[5]
Inheritance rights allow the heir to benefit from the wealth of the estate and exercise the right to receive the inheritance. Therefore, the heir’s will should not be excluded when determining the means of transferring the property legally and in the form of a will. The inclusion of a member in the family by the heir is already a basis for the heir, although the cancellation of this possibility is a subject of dispute. Further, the freedom of will is limited between the order of the members of the family and the will of the last member. If there are questions regarding the status of the family’s heirs for the possession, use and disposal of the estate, this issue should be assessed within the scope of the heir’s true, legal and fair claim and not with the multitude of unreasonable claims.[6]
It is possible to establish the regulations for the heir of the family:
The last member of the household - the heir of the last surviving member mentioned in the household record;
Family member legal heir - family members may be mutual heirs and their status is determined by following the order of legal inheritance, however, with legal equality due to family membership;
A member of a household, a testamentary heir, who was named as an heir by the will and, if such an opportunity exists, was recorded as a member of the household;
Legal heir who is not a member of the household - the status of the heir is determined by observing the order of mutual inheritance and legal inheritance;
A testamentary heir who is not a member of the household, to whom the property of the household or its part was given by the last or other member of the household in the early years;
A family member or non-member, a person without hereditary status, who makes a claim or restricts the claim of other persons to this property.
The issues are complex to separate from each other and intersect, which is why it is possible that the boundary between one or two concepts may not be protected. The law does not have a locking mechanism that would give a status to a person in contact with a household and would not define the grounds for presenting a request during the registration of the right. The request is directed to the household’s property and obtaining the right of ownership through inheritance or recognition as the owner. In the main case, the rule of legal inheritance was established as an inviolable possibility of obtaining ownership of the family’s property, and the freedom of will in the family was limited.[7]
2. Household Estate
Household property is private property, the possession, use and disposal of which cannot be properly ensured by the citizen in the part of the right registration.[8] The word "household" confuses. Therefore, a household should be interpreted as a family, which, according to the household record, is credited with property, to which various circumstances prove the citizen\u27s ownership connection. However, the multitude of persons with the right to claim and the competition of interests make registering a specific person as the owner impossible.
Other ways of defining a household connect the content of the concept to the idea of state property, where the citizen’s right to private property is defined differently. Regardless of the household’s load, it is important to determine the main composition: agricultural land plots, buildings on it, agricultural beds, and other types of property goods that are included in the name of the household. According to Article 1513 of the Civil Code of Georgia, the plots of land for legal use of natural persons, on which individual houses are located, are considered the property of these persons after the implementation of the Civil Code, and the rules provided for immovable property in the Civil Code apply to them. Ownership of homestead plots can be equated with ownership of household property. In general, the integrity of the household property depends on the location, which leads to the special interest of citizens when the increase in the value of land in a specific area reaches a large scale, and citizens try to destroy the integrity of the household property, divide and alienate plots.
According to Article 147 of the Civil Code, property is all things and intangible assets that can be owned, used and disposed of by natural and legal persons and acquired without restriction if prohibited by law or does not contradict moral norms. Household property consists of immovable and movable property. In different municipalities of Georgia, the property of a household is different, taking into account the land fund, the ratio established before and after the period of independence.[9] There is no model to help courts classify complex cases.[10] It is a fact that the value of residential land is increasing, it is a valuable asset.[11] The disorganization of the household’s property creates a problem for the heir to bequeath the property to another person and for the heir to inherit the household’s estate by will. The vulnerability of the heir with a will is because, regardless of the will, the separation of the property from the total mass is connected with disputes with other household members and disruption of the integrity of the household.
3. Restriction of Freedom of Will (Comparative Analysis of Judicial Practice of Georgia and Lithuania)
Regarding the restriction of the freedom of will in the family, the court determines the status of the person and the connection with the family’s estate. From the factual circumstances of one of the cases of the Supreme Court of Georgia, it is established that the citizens were in a registered marriage and did not have a child while living together. One of the spouses bequeathed all his property to his grandson from his first marriage. After his death, half of the disputed house was registered in the grandson’s name, which became known to the surviving wife. She filed a lawsuit to declare the will invalid because her family belonged to the household, and the estate could only be opened after the death of the last household member. Decisions made in the case were often cancelled by courts of different instances. According to the explanation of the court, only the homestead plot was owned by the spouses, and the spouses do not own the plot of land, the existence of which is necessary for homestead farming.[12] According to Article 1323, which has already been abolished today, the inheritance will be opened on the common property of the household from the day of the death of the last member of the household. This principle has been changed, and the death of the last family member is not necessary to open the family estate. Regarding the status of land, the Constitutional Court of Lithuania explains that the property which was illegally confiscated from citizens by the Soviet authorities or was transferred with the right to use it immediately after the independence of Lithuania was considered the property of the state until the right of the private owner on this property was restored, based on the presentation of the appropriate request, due to which the land The status was not divided based on the request of natural persons.[13]
In another case, the court shared the cassator’s opinion that in the legal assessment of the factual circumstances established by the previous instance, the appellate court incorrectly applied Article 1356 of the Civil Code, according to which, if the entire estate was distributed among the heirs by will, but one of the heirs was alive at the time of the opening of the estate It was no longer, inheritance does not arise by law, and other heirs will receive his share of the property in a will. The norm indicated by the court’s reasoning refers to a situation where the entire estate was distributed to the heirs by will, and one of the heirs died before the estate was opened. The court considers that the dispute between the parties should be settled based on Articles 1307 and 1371 of the Civil Code.
The Supreme Court disagreed with the reasoning of the Court of Appeals when “the Appeals Chamber pointed out that since the communal household has been abolished since 1993, the determinant for obtaining ownership rights to the household’s property is the registration in the household by 1993“. From this period, as mentioned, the property is transformed into the joint property of the family members. Subsequently, the persons registered in the household can no longer claim the household’s property“. It should be noted that the year 1993 cannot be decisive because after the transformation of the property into co-ownership of the members of the household, the means of obtaining the ownership right is the indication of the co-owners in the household record, and after 1993, it was still possible to fill the household and change the property listed on it.[14] The Constitutional Court of Lithuania notes in one of its decisions that land reform and the concept of property restoration were implemented with varying frequency in the country’s municipalities, although the strategy was common across the country.[15]
The court pointed out that, taking into account the fact that the fact of the plaintiff’s inheritance of the disputed plot of land, or the acquisition of ownership rights to the disputed real estate during the land reform period, could not be established, the claim of the plaintiff was considered unsubstantiated and groundless - to recognize him as the owner of the disputed property, on the basis that The disputed real estate was an object included in the estate of the plaintiff’s heir. This means that a person’s contact with the household’s property must be substantiated by inheritance or the fact of acquiring property during the land reform period, if the person does not have these grounds, he cannot satisfy the request for property outside the household only by indicating that this property was part of the household.[16]
The Court noted that by dividing the household, the plaintiffs lost the ownership right to the common property of the household. Thus, they were entitled to a 1/2 share of the disputed property. Divining the household was connected with the equal distribution of the share in the legal burden. Even though the claimants claimed the property in dispute entirely and independently.[17]
The Court explains that “due to the absolute nature of ownership, the owner’s right to request an injunction cannot be statute-barred. Both acquisition and loss of ownership rights to immovable objects are related to registration in the public register. Because of the above, the basis for considering the owner’s status as violated must be a public registry entry; another person must be registered as the owner. Otherwise, the property right will not be considered violated, and the statute of limitations will not be allowed for the property as an absolute right”.[18] In the case of household property, the registration of a person as the owner was not done for years, which is why the actual ownership is one of the important elements for establishing a claim. However, the household record changes the reality, where different persons are registered jointly, or the record is substantially flawed. In one of the cases of the Constitutional Court of Lithuania, it is noted that together with the concept of property restoration, a management strategy was developed for the plots of land of agro-cultural importance to preserve both the registration and agricultural purpose.[19]
In another case, "the Court explains that the evidence in the case undoubtedly established that after the death of the head of the household and his wife, the household that owned the disputed property was represented/led by the defendant (mother), and her children (co-defendants) were enrolled in the same household, respectively, In the context of land reform, the defendants’ acquisition of title to the disputed property (taking into account the basis for obtaining such a right), constitutes the acquisition of a real right to the disputed property, which, in turn, gives the owner the right to freely own, enjoy and dispose of the property in his possession”.[20] Actual possession in the absence of registration is of particular importance. Actual possession must be proved by appropriate evidence.
“The legal interest of the plaintiffs was to obtain the right of ownership of the property, which went out of the domain of their heir’s disposal against the law, more precisely, based on a false entry in the land register, and first, it ended up in the domain of the first defendant’s disposal, based on the gift agreement of the father of the heir and later, based on the gift agreement. The defendants objected to the lawsuit by focusing on the incorrect determination of the inheritance mass of the plaintiffs’ heirs and the scope of the circle of heirs.[21] Such cases are illegal in the origin of ownership rights to the household; however, until this is established, the property can be alienated to third parties. The problem is that when the heir of the household loses the right to the property or thinks that he has lost the right to the property, the risk of the property being found in the possession of a third party increases, the heir has a prior expectation, and after the death of the heir, the heirs start a dispute.
The Court noted that “it is true that the claim does not contain a direct reference to the legal interest; however, taking into account the factual circumstances of the dispute, it is indisputable that the claimant wants to obtain (restore) the ownership right to the property, which he no longer has based on the disputed transactions”. Achieving this goal is impossible only in the conditions of a confessional lawsuit; the means of realization of this demand is the claim of appropriation, and the Court, based on the imperative limitation of Article 248 of the Code of Civil Procedure, cannot go beyond the claim and attribute to the party what it did not ask for, or more than he demanded. Thus, the Chamber concludes that the recognition claim is inadmissible in the case under consideration”.[22] The court, within its jurisdiction, distinguished between admissible and non-adjudicable issues.
“The Court shares the legal reasoning of the appealed decision and considers that taking into account the time of origin of the legal relationship, the lower Court correctly interpreted Articles 539, 544, 556, 540, 541 and 556 of the Code of Civil Law (1964 edition) Articles. The Court additionally noted the following: the legal interest of the claimant’s claim is the acquisition of ownership rights to the heir’s property, which the party associates with the fact that he took possession of the property after the heir’s death. The defendant, who is the registered owner of the property, disagrees with this fact (his deceased father obtained the inheritance by notarial procedure). In such a situation, in accordance with Article 102 of the Code of Civil Procedure, the plaintiff is obliged to indicate such circumstances and submit evidence, the analysis of which will confirm the fact of possessing the property”.[23] Property registration and actual possession conflict with each other; at this time, the Court focuses mainly on the presentation of evidence and reference to the relevant circumstances.
For the issue of establishing the norms necessary for establishing the right, the Chamber referred to Articles 92, 93, 103 of the Civil Code of Georgia (1964 edition) and explained that in the 1960s, the disputed plot of land was only the property of the state, which excluded the appellant the rights of the ancestor as the owner of the land plot. Pursuant to Article 1513 of the current Civil Code, the Chamber explained that the enacted law considered as the property of individuals only those plots that they had in legal use and on which individual houses owned by individuals were directly located. The purpose of this norm was to ensure the property of individuals both on the building and on the land, of which the individual house was an essential component. According to this article, for a person to be recognized as the owner of a plot of land, it is necessary for him to be the owner of an individual house and to have allocated a plot of land based on the relevant act. According to the plaintiff, after the 1960s, his family no longer owns the disputed plot of land. The transfer of ownership of a plot of land occupied in this manner was regulated by the law of Georgia “On recognition of ownership rights to land plots in the possession (use) of natural and private legal entities”, according to which one of the necessary conditions for obtaining ownership rights to a plot of land was ownership of a plot of land (legally or arbitrarily) through detention)”.[24]
The Chamber of Administrative Affairs states in one of the cases that “from the regulation of the Civil Law Code (the land was owned only by the state). According to the data of the land register, the possibility of obtaining ownership rights to a plot of land for personal use was initially taken into account by the land reform that began in January 1992 (“On the reform of agricultural land i
წარმომადგენლობის ინსტიტუტის ტიპოლოგიური დახასიათება
No full text One of the forms of realization of the principle of private autonomy in civil law is fiduciary relations. In general, in contemporary law, the institution of representation is the basic cornerstone upon which many legal relationships are built. The importance of the institution increases one or two times in private law, when a person or an organization that, due to the various reasons in legal relations, is unable to represent its interests, starts to act and conduct legal actions through a representative. There are many reasons, however, the legislative is one, about which there are still some question marks, How comprehensive the Georgian legislation provides for the institution of representation, and what is the basic legislative framework, can be used to distinguish between forms of representation. For the development of the doctrine of private law, it is of great importance to bring to the fore the relevance and importance of the institution of representation. And for this, it is appropriate to conduct a study of the theoretical issues of the institute - the way from its historical beginnings to modern times. The typological characterization of the issue allows identifying problems on such important issues as the function of representation, its essence, its specific features, and signs, and how harmoniously the Georgian legislative framework is compatible with the standards established at the international level. And for this, it is appropriate to conduct a study of the theoretical issues of the institute - the way from its historical beginnings to modern times. The typological characterization of the issue allows identifying problems on such important issues as the function of representation, its essence, its specific features, and signs, and how harmoniously the Georgian legislative framework is compatible with the standards established at the international level. And for this, it is appropriate to conduct a study of the theoretical issues of the institute - the way from its historical beginnings to modern times. The typological characterization of the issue allows identifying problems on such important issues as the function of representation, its essence, its specific features, and signs, and how harmoniously the Georgian legislative framework is compatible with the standards established at the international level.
Keywords: Representation, Typology, Problem
Introduction
Representation is a legal institution regulated by the Civil Code of Georgia, the theoretical meaning of which acquires a characteristic legal nature during its practical implementation. The study will focus on several legal aspects of the typological characterization of representation. Representation is a legal institution regulated by the Civil Code of Georgia, the theoretical meaning of which acquires a characteristic legal nature during its practical implementation. The study will focus on several legal aspects of the typological characterization of representation.
The issue of clarifying the characteristic features of the Georgian, German, Romanian and Anglo-American legal systems of representation is a criterion for evaluating the essence and functioning of this institution. This is what makes the system comparative context interesting, which, together with the challenges of Georgian private law, also includes the issue of regulation of the institution of representation by the code, which reveals the main concepts in the possibility of typological characterization of the issue.[1] Also, the typological characterization of representation implies the clarification of the meaning of the reception of law and legal transplant in private law. The purpose of the research is: to outline the essence and signs of representation; showing its origin as a Georgian institution of private law and its relation to legislative regulation in response to today\u27s challenges; determining whether representation is permissible in all types of legal relationships under comparable legal systems. Normative, dogmatic, comparison, synthesis and analysis methods are used in the research.
1.Historical Aspects of Representation
Representation, as an institution of Georgian private law, existed in the form of customs and traditions even before the formation of the codified system.[2] In different social environments, representation acquired the form of both rights protection and tradition, which formed the moral, ethical and legal responsibility of the representative and represented person.[3] In Alexander Kazbegi\u27s work “Khevisberi Gocha”, the episodic issue of Onise and Gugua is significant, where the control of the actions of the presented person was ensured by the phenomenon of moral justice.[4] Vazha Pshavela\u27s poem “Bakhtrioni” in the form of Sanatha portrays the representation of issues of the deceased family members and men in a place where, as a rule, women are not allowed.[5] In the mediation process in Svaneti, representation was accepted in both criminal and civil cases.[6] The representation of the community and the representation of an individual are interesting. So, for example, the name of a mediator as a representative of justice and a neutral person can be found in the following form: judge, man of the law, makvshi, btche-mediator, khevisberi. A representative of an individual could be a family member or another person. In Adjara, “men to be called in advance” represented the opinion of the community. Representation in socio-political relations also had the function of guarantee.[7]
The regulation of the Civil Code of Georgia gave the institution of representation a characteristic (imported) form for the legal responsibility of natural or legal persons and private legal relations, including clarity of time and space.[8] Depending on the nature of legal relations in private law, the need is forming, that a person or an organization in the legal form of a legal entity, which, for some reasons, cannot directly exercise its interests, rights and duties, to be represented by a third person.[9]
This issue appears not only in private law, but also in public law relations.[10] Accordingly, the regulation of Articles 103-114 of Chapter 7 of the Second Book of the Civil Code of Georgia creates the legal basis for characterizing representation as an independent institution of Georgian private law. The named normative base also puts the issue of sectoral reflection and typological characterization in the private and public relations of the institution of representation on the agenda.[11]
Representation, as an institution of Georgian private law, is characterized by a heterogeneous manifestation of typological characterization for study disciplines in the same field. For example, for the method of solving a case in civil law, it is essentially a problem of manifestation of will,[12] more specifically: any problem arising at the time of making a transaction, which includes cases when it is possible to make a transaction, although the person who should become a direct party to the transaction does not participate in the conclusion of the transaction or this person makes an offer, but not an acceptance.[13] In the sciences studying the forms of alternative dispute resolution, representation is related to the ethical and procedural issues of the lawyer-representative\u27s participation in mediation and notary mediation.[14] Also, the association agreement with the European Union represents an important stage in the Europeanization of Georgian private law, including the field of representation.[15]
Georgia is approaching European law step by step.[16] The process of development of Georgian private law, along with the general idea of law development, includes the development of separate legal institutions and legislative norms. Accordingly, the association agreement with the European Union, along with the convergence with the European legislation, carries the goal of developing Georgian private law. If Cicero thought that “all other laws ... were vague and ridiculous compared to the law of Rome”, in contrast to this concept, today, the development of different laws and separate legal institutions is an equal necessity today.
The adoption of the Civil Code of Georgia is the legal crown of Georgian statehood.[17] The regulation of representation as an institution of Georgian private law in the form of Articles 103-114 of the Civil Code, in turn, includes the possibility of its typological characterization.[18] It should be taken into account the fact that the legal acts of European countries, the European Union and the Council of Europe were studied while working on the draft of the Civil Code of Georgia, which shows the importance of the reception of the legal norm or the legal transplant as an example of the practical implementation of a separate institution.[19] It is natural that the institution of representation was formed on the basis of comparisons of Georgian peculiarities and legal norms and systems of different states.[20] If we compare from a historical point of view, for example, the ten-man commission (decemvirate)[21] of the Romans was responsible for the first plural law of Rome (the Law of the XII Table),[22] in which the creation of legal norms of representation as an institution of Roman law did not take place, the issue was regulated by other norms regulating Roman customary and social law, at the same time, it was related to the status of persons,[23] that is, their authority. Later, in the terminology of Roman law, the mandator was called[24] mandans, and the mandatary - procurator.[25] It is worth mentioning Savin\u27s opinion that “the law grows with the people, is based on the people and disappears as soon as the people lose their individuality”.[26] Accordingly, the typological characterization of representation as an institution of Georgian private law is a definition with legal consequences of the current legislative regulation, which is based on a certain history in the sense of origin, concept or content. Representation as an institution of Georgian private law and its typological characterization is not only the subject and challenge of Georgian private law research, and within the framework of the obligation imposed by the association agreement with the European Union,[27] it is possible to develop a concept for a broad discussion of current issues.
2. Typological Characterization
2.1. Georgian Legal System
The typological characterization of representation as an institution of Georgian private law is a challenge of legislative reality and judicial practice in Georgian law. From a dogmatic point of view, the established sectoral classification,[28] in individual cases of practical reflection, is on the institutional border of private and public law, where the classification of legal families is of great importance from the point of view of discussion of the issue, and the typological characterization of sectoral forms of representation is the basis of its different perception for academic disciplines. It is interesting that the systematicity and institutionality of the institution of representation is conditioned by the historical formation of the institution and the current normative reality of the legislative regulation within the framework of the German, Roman and Anglo-American legal systems.
Moved by the spirit of the first constitution of the Democratic Republic of Georgia, the Georgian legal system (later - the legislature) after gaining independence, rejected the continuous operation of the constitutions, legislative acts and norms of the Soviet Socialist Republic, thus connecting the issue of state law and order and the development of law with the need to develop a form of reception and legal transplant.[29] According to the first sentence of the first part of Article 103 of the Civil Code of Georgia, the transaction can be concluded through a representative.[30] The named reservation gives natural and legal persons (hereinafter - representatives) the right to participate in private legal relations through a representative (capable person). According to the second sentence of the first part of the same article, the authority of the representative either derives from the law, or arises on the basis of a mandate (power of attorney).[31] In this form, the legislator determined the type of action based on the institution of representation: the code-based form of regulation and the consequential nature of voluntary reception.[32]
The current legislative version of the institution of representation, at the beginnings of the formation of Civil Code and afterwards, along with the similarity of this institution to the modern German legal system, it also forms separate features:
a) regulation of legal representation in the regulatory chapter of transactions, as a necessity to refine the legislative technique;[33]
b) the rule determined by the second part of Article 103 of the Civil Code of Georgia and the spirit of the legislator regarding the demarcation of the form of concluding a will, marriage, and at the same time other transactions that must be concluded directly;
c) mandate (power of attorney) and authority, as the same basis for the origin of representative powers, as cases of common content and different terminological names.[34]
Similarity to the German legal model distinguishes the Georgian legal system from the Romanian and Anglo-American legal systems. It is possible to distinguish the following:
a) The issue of regulation of representation as a private law institution by the Code. Also, the importance of voluntary reception and legal transplant in relation to the establishment of the institution of representation;
b) issues of terminological naming and mutual separation of parties (subjects) of representation;
c) issues of regulation of the rights and duties of subjects of representation as an institution;
d) the question of the division of types and sectoral forms of the institution of representation.
One of the peculiarities of the Georgian model is the absence of a clear legal boundary between power of attorney and mandate. We can present the issue of terminological compliance with a problematic character, on the example of the legislation regulating notarial law. The title of Article 28 of Order No. 71 of the Minister of Justice of Georgia “On the procedure for performance of notarial acts” is: Performance of notarial acts on the basis of a power of attorney (authority, mandate agreement).[35] Let\u27s look at the title and turn to the second sentence of the first part of Article 103 of the Civil Code of Georgia: the power of an agent may arise either by operation of law or out of a mandate (power of attorney). It is interesting why power of attorney includes the issue of authority and mandate agreement in the notary legislation, when in the Civil Code of Georgia, the legislator gives priority of reference to the mandate, and indicates the basis of the power of attorney in parentheses.[36] I wonder if this is a peculiarity or a legal flaw? The regulatory nature of Article 28 of Order No. 71 does not give specific importance to the issue of the power of attorney and mandate, and it distinguishes[37] the mentioned issue only by the peculiarity of drafting a public[38] and private[39] notarial deed. Unlike the named order, the Law of Georgia “On Notary” does not indicate the issue of mandate and power of attorney at all, but considers the latter within the framework of general or other notarial activity.[40]
It is necessary to assess what basic approaches have been established in judicial practice regarding the mentioned complex issue. According to the definition of the Supreme Court of Georgia, the granting of representative authority and the conclusion of an mandate agreement are two independent legal relations.[41] The court notes that the power of attorney, which confirms the representation, is very different from the contract of mandate, since, from a practical point of view, the latter regulates the relationship between the representative and the represented, while the power of attorney is aimed at ensuring the legal relationship between the represented and a third party.[42] i.e. the addressee of the power of attorney is a third party and serves to confirm the authority of the representative before him. The court draws a clear line between these two institutions and brings to the fore the main distinguishing features that establish the final legal framework for separating these two legal forms, in particular, according to the mentioned definition, the contract of mandate belongs to the type of contracts where the parties are: on the one hand, the mandator (the assignor), same as the creditor, and on the other hand, the mandatary, who performs the assigned action and appears in the role of the debtor. The subject of such a relationship can be the implementation of both legal and factual actions, for which a power of attorney can be issued or not issued at all. In this case, it is clear that the power of attorney can only be the basis for the existence of the relationship arising from the contract of mandate, but does not equate to this relationship itself. That is why, doctrinally, the grounds for terminating the contract of mandate (720-721 of the Civil Code) and the termination of authority (109 of the Civil Code) are regulated by different norms of the Code, which, as a rule, should avoid the existence of similar ambiguities and uncertainties in practice. We will touch on these and other issues more specifically in the third chapter of the work.
Representation in the Georgian legal system from the point of view of a separate part of the institution, echoes the broker, mediator, commissioner and other persons/institutions containing the actions of transferring the will, although despite the similarities, their legal nature and legal consequences are different. Legal representation may be called mandatory representation, and contractual representation - voluntary,[43] it is significant that the Anglo-American legal system does not dogmatically establish legal representation in the form recognized by continental law states. Division with mandatory and voluntary form as a division criterion derives from the nature of legislative regulation. For example, the division of notary mediation into mandatory and voluntary types in Georgian law is also determined by the form and nature of the regulatory norm. The legislator establishes the institution of representation in the Civil Code of Georgia with the following numbering and name:
Article 103 – Concept;
Article 104 – Agency and the effects of a transaction on an addressee;
Article 105 – Limited legal capacity of an agent;
Article 106 – Defect of the declaration of intent in agency;
Article 107 – Power of agency;
Article 108 – Obligation of notification upon changing the authority;
Article 109 – Grounds for termination of power of agency;
Article 110 – Obligation of agent upon extinguishment of authority;
Article 111 – Entering into a transaction without a power of agency;
Article 112 – Right to repudiate a contract;
Article 113 – Agent’s obligation when there is a defect in the power of agency;
Article 114 – Inadmissibility of entering into a transaction with oneself.
2.2. German Legal System
The German legal system with its history of formation and development, on the one hand, from the disintegrated state formation to the German Empire, from the Empire to the Weimar Republic, from the Weimar Republic to National Socialist Germany and after that, to the present day, and on the other, under the conditions of the state legal order of the Federal Republic of Germany, forms the centuries-old history of the institution of representation.[44] Title 5 of Division 3 of the First Book of the German Civil Code regulates the issue of representation and power of attorney.[45] We consider it permissible to indicate the numbering and name of the representation institution in the German Civil Code:[46]
Section 164. Effect of declaration made by the agent;
Section 165. Agent with limited capacity to contract;
Section 166. Absence of intent; imputed knowledge;
Section 167. Conferment of authority;
Section 168. Expiry of authority;
Section 169. Authority of authorized representative and the managing partner;
Section 170. Period of effectiveness of the authority;
Section 171. Period of effectiveness in the case of announcement;
Section 172. Letter of authorization;
Section 173. Period of effectiveness in the case of knowledge and negligent lack of knowledge;
Section 174. Unilateral legal transaction by an authorized representative;
Section 175. Return of the letter of authorization;
Section 176. Declaration of invalidity of the letter of authorization;
Section 177. Entry into contract by an unauthorized agent;
Section 178. Right of revocation of the other party;
Section 179. Liability of an unauthorized agent;
Section 180. Unilateral legal transactions;
Section 181. Contracting with oneself.
In terms of the volume of norms and the importance of the discussed issue, the German legal system indicates the institution of representation clearly, widely and inseparably to the substantive aspects of the issue.[47] This issue is characterized by a precise and complete legal regulation, which implies that representation in the German legal system should be allowed, first of all, in the legal relationship[48] in which the will of the representative is manifested on behalf of another person and within the scope of representative authority.[49]
Consider a practical example. In one of the German Federal Court cases, it was held that when consenting to enter into a contract using another p
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