PF_PPT pruh+znak_PF_13_gray5+fialovy_RGB Zápatí prezentace Locatio-conductio operis or emptio-venditio? JUDr. P. Salák jr. Ph.D. www.law.muni.cz PF_PPT2 PF_PPT_nahled nEmptio-venditio – Exchange for exchange n nLocatio-conductio (lease, usufructuary lease) is characterized as a contract, in case there is a ceded using of a thing, performance of a work or a creation of a work for a financial payment (merces) n nlease – using of a thing x usufructuary lease – enjoying of a thing (taking fruits) n Zápatí prezentace 2 www.law.muni.cz PF_PPT2 PF_PPT_nahled Locatio-conductio nRoman law (classical) nLocatio-conducio n nRoman law (german pandectistic) nLocatio-conductio rei nLocatio-conductio operis nLocatio-conductio operarum n nCode Napoleon (1804) nLease contract and contract for work together nABGB (1811) nLease and usufructuary lease (2. part, title XXV) nService contract and contract for work (2. part, title XXVI) nBGB + Scheme 1937 nLease contract, contract for work, employment contract – separate x in a row nCC 1950, CC 1964 (after 1991) and CC 2012 nSeparated from a lease contract and employment conract nContract for a work near to a command contract and transport contract Zápatí prezentace 3 www.law.muni.cz PF_PPT2 PF_PPT_nahled Gai III.145 n„Adeo autem emptio et uenditio et locatio et conductio familiaritatem aliquam inter se habere uidentur, ut in quibusdam causis quaeri soleat, utrum emptio et uenditio contrahatur an locatio et conductio, ueluti si qua res in perpetuum locata sit.“ n nPurchase and sale are so nearly akin to letting and hiring that in some cases it is a question under which category the contract falls; for instance, when land is leased in perpetuity, asoccurs with the land of municipalities, which is leased on the condition that, so long as the rent is paid, the lessee and his heirs shall continue in possession. But here the better opinion is that the contract is one of letting and hiring. n n Zápatí prezentace 4 pruh+znak_PF_13_gray5+fialovy_RGB PF_PPT Zápatí prezentace 5 Custom-made thing – Contract for work or contract of sale? www.law.muni.cz PF_PPT2 PF_PPT_nahled Gai 3.147 n„Item quaeritur, si cum aurifice mihi conuenerit, ut is ex auro suo certi ponderis certaeque formae anulos mihi faceret et acciperet uerbi gratia denarios CC, utrum emptio et uenditio an locatio et conductio contrahatur. Cassius ait materiae quidem emptionem uenditionemque contrahi, operarum autem locationem et conductionem; sed plerisque placuit emptionem et uenditionem contrahi. atqui si meum aurum ei dedero mercede pro opera constituta, conuenit locationem conductionem contrahi.“ n nAgain, if a goldsmith agrees to make me rings of a certain weight and fashion out of his own gold for, say, two hundred denarii, it is a question whether the contract is purchase and sale or letting and hiring. Cassius says the material is bought and sold, the labour is let and hired, but most writers hold that there is only a purchase and sale. But if I provide the gold and agree to pay him for his work, the contract is settled to be a letting and hiring. Zápatí prezentace 6 www.law.muni.cz PF_PPT2 PF_PPT_nahled Roman law – Locatio conductio nLocator ALWAYS hands a thing over to conductor: nRei – object of lease (ship, house) nOperarum – object is a physical performance of work, so as if he hands „his body“ nOperis – e.g. cleaning of clothes – it is necessary to hand mentioned clothes for cleaning nOperis – thing, which is about to emerge – also in this case, it is necessary to hand a basic stuff over for processing nRing – gold (alternatively stone) nClothes – cloth (not necessarily threads, buttons – less significant components) nIf locator does not hand it over, but conductor uses his personal one - contract of sale – for distinction important so called „criterion of the supplier of stuff“ n n Zápatí prezentace 7 www.law.muni.cz PF_PPT2 PF_PPT_nahled German Law nAllgemeines preussisches Landesrecht – may be a contract of work, even when the maker supplies the cloth nEhrenberg (one of authors of BGB) talks about special initiative of the orderer (drawings, instructions how to proceed) n nPiece of work x contract of sale nNot important the delivery of stuff, but the idea nIdea – who is the author of the form, who individualizes it – so called „criterion of the individualization of thought“ n nE.g. Clothes made to measure nAt dressmaker you choose the dress from the album of clothes, that she offers to sew. nYou bring the photo of the dress that you want her to sew for you Zápatí prezentace 8 www.law.muni.cz PF_PPT2 PF_PPT_nahled Czech law 1950-2012 nCC1950, CC1964 – german inspiration – criterion of the individualization of thought x modification was very brief n nCommercial code 1990 - criterion of the supplier of stuff (influence of international law) n Zápatí prezentace 9 www.law.muni.cz PF_PPT2 PF_PPT_nahled CC 2012 nSection 2587 nA work is to be understood as the making of a particular thing which is not subject to a contract of sale, as well as maintenance, repair or alteration of a thing, or an activity with any other result. A work is to be understood as any construction, maintenance, repair or alteration of a structure or part thereof. n nSection 2590 n(1) A contractor shall perform the work with necessary care within the stipulated period and procure all that is needed for its performance. n nSection 2594 n(1) The contractor shall notify the client without undue delay of the unsuitability of a thing handed over or a mandate given to him by the client. This does not apply if he could not have ascertained the unsuitability even by exercising necessary care. n nSection 2596 nIf a contractor procures a thing which was processed during the performance of the work and such a thing becomes a component part of the work, the contractor is in the position of a seller in respect of that thing. The purchase price of the thing is presumed to be included in the price of the work. n n n n n Zápatí prezentace 10 pruh+znak_PF_13_gray5+fialovy_RGB PF_PPT Thank You for Your attention P. Salák jr. Zápatí prezentace 11