Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 71

To be sure, this pair of terms “time and law” has many facets all of which are worthwhile thinking about intensely2. But we will concentrate primarily on that implication which is relevant for our context. To do so, it is necessary to first give a general overview of that specter’s breadth.

To begin with, there is an aspect that might be called “law in time”: a paradigmatic representative of this aspect is the mere existence of the academic discipline of legal history; by definition, legal historians study law in a particular temporal setting. Its subject is the observation of law, a legal instrument, or legal thinking in the past – be it as a topic in itself, be it as a subject in evolution, or be it as a contrast to the present time. It is, accordingly, the time axis that unveils the fascinating evolution of an insolvent debtor’s treatment which began in western Europe with the law’s explicit permission to the creditors to cut the debtor in pieces and is nowadays diametrically opposed by rescuing this very debtor3.

Another example of this aspect is what is called a “dynamic reference” – i.e. a reference in a statute to another statute (or circumstance) where this reference is meant to direct to the respective latest version of that referred-to statute (rather than the one which was in force at the time of the enactment of the referring statute). A final example is the methodological question whether the so-called historic interpretation of a statute is of any relevance – and if so to which degree? Does it matter when the historic legislator of the German Civil Law Code (Bürgerliches Gesetzbuch) from the end of the 19th century expresses a certain understanding of a particular norm? Should it affect the norm’s interpretation today, more than 120 year later?

Opposed to that law in time aspect is the other one which might be put under the heading of “time in law”. This relates to all those legal and statutory emanations which have an explicit or implicit reference to the course of time. To begin with the latter, the implicit referral: again, a few examples demonstrate what is meant. The first one is the economically fantastic invention to stretch the sales contract into a long term relationship. For a better understanding, compare the ancient Roman purchase of an ox on the cattle market with buying a car today; in the first case the exchange of ox and purchase price took place at the same moment –hic et nunc–, in the latter case the buyer will pay the last installment possibly 3 years from the moment in which he was handed over the car.

A further example is what is called in Germany –and elsewhere– torpedo law suits; thereby the potential defendant of a law suit makes use of time –more precisely: of tardiness in combination with the principle of lis pendens– by preemptively suing the potential plaintiff with a negative declaratory action in a jurisdiction which is notorious for its slowness. The European legislator felt it necessary to amend the rules of the Brussels Ia-Regulation in order to cut off this unfair gambling with time. A final example (out of hundreds of others) is the intricate problem of how long shall it be permissible to bind the other party or even third persons? When, for instance, a beer brewery pays the entrepreneur for the entire equipment of a new bar, how long shall the brewery be allowed to oblige the entrepreneur to sell exclusively its own beer? Or: how long is a testator allowed to bind his or her heirs by a condition in the testament?4. In German law, there are some rules in the law of succession which suggest that the time frame is confined to one generation (30 years), whereas in the Common Law the “rule against perpetuities” is overly complex so that there is no clear answer to this question.

With regard to the explicit reference to the time in law the most prominent and most obvious example are rules on the statute of limitations, which establish an explicit time limit to the enforceability of claims5. Another explicit reference to time is to be found in the context of a preliminary injunction: this remedy is, generally speaking, available only when time is pressing. If there is no need for a quick decision, no injunction will be granted. In the German “Grundgesetz” (Constitution) a somewhat less obvious but yet highly interesting reference to the passing of time is contained in art. 14: “Property and the right of inheritance shall be guaranteed”. Students tend to be irritated when asked why this combination of guaranteed subjects was chosen (rather than, for instance, property and freedom of contract or the like). Upon close inspection, though, the answer is simple because the right of inheritance grants a temporal depth dimension to property6.

The final example of explicit reference to time is what might be called long-term-contracts: a lease contract, for instance, is entered into for the duration of a week, a year or any other time span; the same is true for a labor or a service contract – but also for a contract which implies some lending such as a sale under retention of title, and most prominently a loan agreement. By definition, the borrowed money has to be paid back after a given period of time and an additional amount of money (interest) has to be paid for the lender’s risk bearing for the time in between. The latter is precisely the issue which makes this small digression to the law-time relationship educative: it is the passing of time that determines the particular role of a creditor in a credit relationship. Since much can happen in the period between disbursing the loan to and its repayment by the debtor so that the creditor has to bear the risk resulting therefrom.