Zbornik Radova: Pravni Fakultet u Novom Sadu (Jan 2019)
Limitations of freedom of ownership and testamentary freedom
Abstract
The first issue discussed in this paper relates to freedom of ownership, which is perceived as a part of the general freedom of individual, which limitations are presented through numerous theoretical classifications, conditioned by positive law and doctrinal perception of the freedom of ownership itself. The norms and principles of a legal order determine the boundaries and the content of property, governed by the rules of public law, which directly reflects on the limits of freedom of ownership, and consequently on the boundaries of freedom of testation, as well. The second part of the paper is devoted to the general legal limitations of freedom of testation, in which public order, imperative regulations and good customs are discussed. In the presentation of the conceptual definition, it has been pointed out that in the civil codifications different concepts are used for denoting the same general restriction of the freedom of disposition, while in theoretical explanations, the same term has different content, which makes the problem of defining the term of public order and other general restrictions even more complex. Through a critical analysis of legal formulations of general restrictions on the freedom of disposition, the need for a conceptual distinction between all three general restrictions are explained. The result of this explanation is the observation of distinction between "public order in the broader sense", which includes imperative regulations, good customs and "public order in the narrow sense", that involves legal principles that are not covered by imperative regulations.
