Pravo (Apr 2024)
STRUCTURE AND RATIO LEGIS OF RETENTION RIGHT IN CONTEMPORARY CIVIL LAW
Abstract
The subject of this work is critical analysis of key segments of the civil law institute of retention, i.e., the right to retain the debtor’s property – primarily in positive Serbian law, but also in European regulations with the longest tradition of civil codes. Through the application of various scientific methods, particularly axiological and comparative law, the author analyzes and evaluates the following segments of Ius retentionis: definition, content and effect, forms, conditions for establishment, protection, and termination, with demarcation from related institutes. Commenting on various positive legislative solutions, the author also reflects on: the solutions of two previously drafted drafts that embody potential proposals for future Serbian civil law; as well as the model-rule DCFR, which constitutes part of the “soft” law of the EU, with which the domestic solution is useful to harmonize in the future, with the aim of determining the direction of further development of this institute. By providing explanation of some doctrinal and disputed retention issues (such as: permitted object, scope, legal nature), the author provides an authentic picture of this useful, but controversial institute. The author concludes that retention can be described as unfinished real right sui generis, an atypical legal real guarantee authentically exercised by self-protection technique, whose ratio legis is threefold: social, material and procedural justification. All of this finally outlines the direction of its further affirmation, i.e., the strengthening of retention in all segments of the institute, regarding: effect, content, expansion of the object, simplified conditions for establishment, as well as an increasing number of modalities.
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