BASIC_CONCEPTS_OF_GREEK_CIVIL_LAW.pdf

PENELOPE AGALLOPOULOU

BASIC CONCEPTS OF GREEK CIVIL LAW

ANT. N. SAKKOULAS ATHENS

STÆMPFLI

BRUYLANT

BERNE

BRUSSELS


PENELOPE AGALLOPOULOU Professor of Civil Law University of Piraeus

BASIC CONCEPTS OF GREEK CIVIL LAW Translated & Edited by

Youlika Kotsovolou Masry, LL.B., Ph.D.

ANT. N. SAKKOULAS

STÆMPFLI

BRUYLANT

ATHENS

BERNE

BRUSSELS

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher.

Title of the Greek original and author’s name: Πηνελόπη Αγαλλοπούλου ΒΑΣΙΚΕΣ ΕΝΝΟΙΕΣ ΑΣΤΙΚΟΥ ΔΙΚΑΙΟΥ Αθήνα, 2003

Athens, 2005 ISBN 960-15-1356-6 (Ant. N. Sakkoulas) ISBN 2-8027-1963-7 (Bruylant) ISBN 3-7272-2722-2 (Stæmpfli)

© Ant. N. Sakkoulas Publishers © Etablissement Emile Bruylant, S.A. 69 Solonos St., Athens 106 79, Greece Rue de la Régence 67, 1000 Bruxelles Tel.: (+30) 210 3615.440 and 3618.198 Tel.: (+32) 2512.9845 Fax: (+30) 210 3610.425 Telefax: (+32) 2511.7202 Stoa tou Vivliou: 5 Pesmatzoglou St., Athens 106 79, Greece Tel./Fax: (+30) 210 3217.437 © Stæmpfli Publishers Ltd., Berne Komotini: 88 N. Zoidou St., Komotini 691 00, Greece Wölfli Street 1, P.O. Box 8326 Tel.: (+30) (25310) 26.323 and 33.245 CH-3001 Berne, Switzerland www.stæmpfliverlag.com email: [email protected] www.ant-sakkoulas.gr

Cover design based on a painting by Paul Klee (Italian Town, 1928) Printed in Greece

For Lena

PREFACE Unlike what happens in many other areas of literature and scholarship, translations of Greek law books into English, or for that matter into any foreign language, have never been at the center of intellectual endeavor in Hellas. In a sense this is surprising considering the fact that Greek law is based on a series of most respectable sources: Ancient Greek law, which was the precursor and intellectual source of the Roman law of the classical period (jus Greco-romanum), Roman law, Byzantine law, and in modern time some of the strongest legal traditions in Europe. Specifically, the Greek civil law is mainly based on the Civil Code which entered into force on February 23, 1946, as modified by recent laws, especially in the area of family law and the law of obligations. This Code, other than being the offspring of the earlier mentioned traditional sources, is also grounded in the German Civil Code. Nonetheless, it constitutes an original creation of the Greek legal thought and is known for its clear and succinct style as well as for its overall progressive and avant-garde character, especially as far as family law is concerned. Moreover, the Greek civil law has come to include many new statutes of paramount importance, such as the laws for the protection of the consumer or the laws regarding the new types of contracts, so prominent in our era. Still, it is only during the last few years that the interest in Greek law in general and in the Greek civil law in particular has been rising, a development that has already occasioned a number of translations of Greek law books into English which were well received throughout Europe. Naturally, this change in perspective is not unrelated to the accession of Greece to the European Union and the increasing importance of the country’s role in this broader context of extremely interdependent national identities.

X

PREFACE

It is in this light that both the publishers of the present work and I decided to undertake an English translation of this comprehensive and at the same time ‘law made simple’ textbook of Greek civil law. The particular structure of this book (highlighting two of the five parts of Greek civil law), originally dictated by the needs of its readership to get acquainted with Greek civil law without necessarily becoming attorneys, may further justify the undertaking of the translation and its anticipated practical usefulness. Indeed, the idea behind writing this book in the original Greek was to help students of disciplines other than law grasp the notions of civil law, so central to all aspects of life and business, whatever their current intellectual orientation or future profession. To better serve this purpose, the text was intentionally designed to devote a much lengthier discussion to the two branches of civil law that are pivotal to all private and business concerns (General Principles and the Law of Obligations) and offer throughout a wide range of examples from everyday life further illustrating the already simplified analysis of all legal concepts discussed. Finally, because the new types of contracts that have emerged in our times (leasing, factoring, franchising, time-sharing) are ubiquitous, they too have been included so as to equip students and future professionals with all the conceptual tools they would need to better understand the world and more effectively participate in it. It is hoped that these same features will prove helpful to the European readers and beyond −both lay and professional− should the need arise for them to understand and apply Greek civil law. This may take place either in the context of actual dealings across national borders which would include Greece, or of comparative research involving issues that touch upon Greek law. The English edition of this book, which is also fully updated, may additionally be of practical use to the many diaspora Greeks overseas, both the laymen and their attorneys, providing them with an immediate and direct understanding of Greek civil law. I am immensely grateful to Dr. Youlika Kotsovolou Masry who agreed to get involved in the translation and editing of a legal text such as this, despite her absence from the law scene for nearly thirty years, time during which she was pursuing very different intellectual and literary endeavors in the United States of America. Words of thanks are also in order to attorneys Alexandros Koutsoukalis and Melina Sotou, holders of graduate degrees in law from the Department

PREFACE

XI

of Law of the Democritus University of Thrace, for their assistance with the preparation of the index for this book. Last but not least I owe many thanks to Ant. N. Sakkoulas, Stæmpfli, and Bruylant publishers for agreeing to this project and encouraging Greek authors of law books, like myself, to present their work in languages other than Greek. Moreover, I am grateful to the same for their diligent attention to the technical aspects of this publication. Athens, November 2004

P. Agallopoulou

Table of Contents PREFACE

IX

BASIC GREEK BIBLIOGRAPHY

LVII

LIST OF ABBREVIATIONS

LXIII

1. Introduction to Law CHAPTER A LAW, MORALITY, CUSTOM I.

THE CONCEPT OF LAW

1

II.

RULES OF MORALITY

1

III.

RULES OF CUSTOMS

2

CHAPTER B DIVISIONS OF LAW I.

DOMESTIC AND INTERNATIONAL LAW

1. Domestic Law 2. International Law II.

BRANCHES OF DOMESTIC LAW

1. Public Law 2. Private Law III.

BRANCHES OF INTERNATIONAL LAW

1. Public International Law 2. Private International Law 3. International Criminal Law

4 4 4 4 4 5 8 8 8 8

XIV

TABLE OF CONTENTS

4. Law of the European Union (or European Community Law) A. Primary Community Law B. Secondary or Derivative Community Law

8 9 12

CHAPTER C SOURCES OF LAW I.

THE LAW

1. Concept and Distinctions 2. When the Law Enters into Force A. When the Law Enters into Force Formally B. When the Law Enters into Force Substantively 3. Repeal of the Law 4. Retroactive Effect of the Law II.

THE CUSTOM

16 16 17 17 17 18 19

1. The Concept 2. Distinctions of Customs 3. When the Custom Enters into Force 4. When the Custom is Abolished

19 19 19 20 20

III.

THE GENERALLY ACCEPTED RULES OF INTERNATIONAL LAW

20

IV.

THE RATIFIED BY LAW INTERNATIONAL TREATIES

21

V.

THE RULES OF LAW OF THE EUROPEAN UNION (OR EC LAW)

22

CHAPTER D JUDICIAL DECISIONS (JURISPRUDENCE) AND THE WORK OF LEGAL SCHOLARS I.

JUDICAL DECISIONS (JURISPRUDENCE)

25

II.

THE WORK OF LEGAL SCHOLARS

26

CHAPTER E RULES OF LAW I.

THE CONCEPT

27

II.

DISTINCTIONS

27

1. Rules of Law that are General – Rules of Law that are Special 2. Rules of Non-mandatory and of Mandatory Law

27

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(or Public Policy) III.

28

INTERPRETATION OF THE RULES OF LAW

1. Authentic Interpretation 2. Scientific Interpretation A. Literal Interpretation B. Rational Interpretation C. Teleological Interpretation a. Corrective Interpretation b. Supplemental Interpretation

28 28 29 29 29 30 31 31

2. General Principles of Civil Law INTRODUCTION I.

THE MEANING OF THE TERM “CIVIL LAW”

33

II.

THE HISTORY OF THE GREEK CIVIL CODE

34

III.

USEFULNESS OF THE KNOWLEDGE OF CIVIL LAW

35

IV.

THE CONTENT OF THE GENERAL PRINCIPLES OF CIVIL LAW

36

PART ONE THE SUBJECTS OF LEGAL RELATIONS CHAPTER A GENERAL I. II.

LEGAL CAPACITY (OR CAPACITY TO HOLD RIGHTS AND ASSUME OBLIGATIONS) TYPES OF PERSONS

37 37 37 38

1. Natural Persons 2. Legal Persons CHAPTER B NATURAL PERSONS I.

BEGINNING AND END OF NATURAL PERSONS

1. Beginning of the Natural Person 2. End of the Natural Person

39 39 40

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3. Evidence Regarding the Beginning and End of the Natural Person A. General B. Legal Presumptions 4. Missing Person (absentia) A. General B. Conditions for Declaring a Person as Missing C. The Process for Declaring a Person as Missing D. Consequences of Declaring a Person as Missing E. Reappearance of the Missing Person II.

PROPERTIES AND STATUS OF THE NATURAL PERSON

1. Name 2. Gender 3. Citizenship 4. Age 5. Health 6. Religion 7. Honor 8. Kinship 9. Domicile A. The Concept and Meaning of Domicile B. Distinctions C. Special Domicile D. The Difference between Domicile and Residence III.

THE PROTECTION OF PERSONS

1. Protection of the Personality A. The Concept of Right to One’s Personality B. The Content of the Protection C. Protection of the Memory of the Deceased 2. Protection of the Name A. The Concept of Right to a Name B. The Content of the Protection 3. Protection of the Products of One’s Intellect A. The Concept of Right to the Products of One’s Intellect B. The Content of the Protection 4. Protection of the Individual from the Gathering and Processing of Personal Data

40 40 41 42 42 42 42 43 44 44 44 45 45 45 46 46 46 47 47 47 48 48 49 49 49 49 50 51 51 51 52 53 53 53 54

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TABLE OF CONTENTS

CHAPTER C LEGAL PERSONS I.

THE CONCEPT

57

II.

CATEGORIES

57 57 58 58

1. Legal Persons of Public Law 2. Legal Persons of Private Law 3. Legal Persons of Mixed or Dual Nature III.

LEGAL PERSONS OF CIVIL LAW

1. General Rules A. Formation of the Legal Person B. Capacity of the Legal Person C. Title and Seat of the Legal Person D. Administration of the Legal Person E. Juridical Acts of the Legal Person F. Liability of the Legal Person for the Unlawful Acts of Its Representing Organs G. Protection of the Legal Person H. End of the Legal Person a. Dissolution of the Legal Person b. Liquidation of the Legal Person IV.

THE ASSOCIATION

1. The Concept 2. Conditions for Its Constitution A. Constitutive Deed B. Charter C. Application to the Court D. The Decision of the Court E. Registration of the Association in the Public Register of Associations 3. Organization and Operation of the Association A. The Administration of the Association B. The Meeting of the Members of the Association C. Other Organs of the Association 4. Rights and Obligations of the Members of the Association 5. Ceasing to be a Member of the Association 6. Dissolution of the Association V.

THE FOUNDATION

59 59 59 59 60 60 60 61 62 62 63 63 63 63 64 64 64 64 64 65 65 65 66 66 66 66 67 68

XVIII

VI.

TABLE OF CONTENTS

1. The Concept 2. Conditions for Establishing a Foundation A. Establishing Deed B. By-laws C. Presidential Decree 3. Organization and Operation of the Foundation 4. Dissolution of the Foundation

68 68 68 69 69 69 70

THE FUND RAISING COMMITTEE

70 70 70 70 70 71

1. The Concept 2. Conditions for Its Constitution A. Constitutive Deed B. Presidential Decree 3. Dissolution of the Fund Raising Committee VII.

THE CIVIL PARTNERSHIP

1. The Concept 2. Conditions for the Acquisition of Legal Personality

71 71 71

PART TWO THE RIGHT CHAPTER A CONCEPT AND DISTINCTIONS OF RIGHTS I.

THE CONCEPTS OF LEGAL RELATION AND RIGHT

73

II.

TYPES OF RIGHTS

74 74 75

1. Property, Personal, and Mixed 2. ‘Power Conferring’ and ‘Condition Forming’ Rights CHAPTER B CLAIM AND DEFENDANT’S PLEA I.

THE RELATIONSHIP BETWEEN RIGHT AND CLAIM

77

II.

THE RELATIONSHIP BETWEEN CLAIM AND LEGAL ACTION

1. Legal Action in the Substantive Sense of the Term 2. Legal Action in the Procedural Sense of the Term

78 78 78

THE DEFENDANT’S PLEA

79

III.

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CHAPTER C ACQUISITION, CHANGE, AND LOSS OF A RIGHT I.

ACQUISITION OF A RIGHT

1. Original Acquisition 2. Derivative Acquisition II.

CHANGE OF A RIGHT

1. Subjective Change 2. Objective Change III.

LOSS OF A RIGHT

1. Loss of a Right with the Consent of the Bearer 2. Loss of a Right without the Consent of the Bearer

80 80 80 80 81 81 81 81 81

CHAPTER D USE AND ABUSE OF A RIGHT I.

THE EXERCISE OF A RIGHT

82

II.

THE ABUSE OF A RIGHT

83 83 83 84

1. General 2. Conditions Determining the Abusive Exercise of a Right 3. Legal Consequences of the Abusive Exercise of a Right 4. Means of Defense of the Adversely Affected Party from the Abusive Exercise

85

CHAPTER E THE PROTECTION OF RIGHTS I.

JUDICIAL PROTECTION

1. General 2. Distinctions of Civil Courts A. First Instance Courts B. Courts of Appeals C. The Court of Cassation (Areios Pagos) 3. The Procedural Steps to Litigation before a First Instance Court A. Bringing an Action B. The Defense of the Defendant C. Evidence D. Court Ruling

86 86 87 87 88 89 89 90 90 91 91

XX

II.

TABLE OF CONTENTS

4. Legal Remedies 5. Forcible Execution 6. Provisional Remedies

91 92 92

SELF-RULE OR PRIVATE JUSTICE

93 93 94 95

1. Self-redress 2. Self- defense 3. State of Necessity CHAPTER F PRESCRIPTION AND TERM OF EXTINCTION I.

PRESCRIPTION

1. The Concept 2. The Prescriptive Period 3. Beginning of the Prescriptive Period 4. Suspension of Prescription A. The Concept B. Distinctions a. Absolute Suspension b. Suspension of Completion 5. Interruption of the Prescriptive Period II.

TERM OF EXTINCTION

1. The Concept 2. Differences between Prescription and Term of Extinction

97 97 98 98 99 99 99 99 100 101 102 102 102

PART THREE JURIDICAL ACTS CHAPTER A THE CONCEPT AND DISTINCTION FROM OTHER SIMILAR CONCEPTS I.

GENERAL

103

II.

THE JURIDICAL ACT

104

III.

ACTS NOT CONSTITUTING A JURIDICAL ACT

104 104 105

A. Quasi Juridical Acts B. Material Acts

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TABLE OF CONTENTS

CHAPTER B TYPES OF JURIDICAL ACTS I.

UNILATERAL JURIDICAL ACTS AND CONTRACTS

1. Unilateral Juridical Acts 2. Contracts A. Unilaterally Obliging Contracts B. Reciprocal Contracts II.

GRATUITOUS AND ONEROUS JURIDICAL ACTS

106 106 106 107 107

1. Gratuitous Juridical Acts 2. Onerous Juridical Acts

107 107 107

III.

JURIDICAL ACTS INTER VIVOS AND MORTIS CAUSA

108

IV.

FORMAL AND INFORMAL JURIDICAL ACTS

108 108 108

1. Formal Juridical Acts 2. Informal Juridical Acts CHAPTER C CONDITIONS FOR THE CONCLUSION OF A VALID JURIDICAL ACT I.

GENERAL

109

II.

CAPACITY FOR CONCLUDING A JURIDICAL ACT

109 109

1. The Concept 2. Differences between: Legal Capacity, the Capacity to Conclude Juridical Acts, and the Capacity for Delictual Liability 3. The Institution of Judicial Assistance A. General B. Who is Placed under Judicial Assistance C. The Procedure D. The Consequences of Placement under Judicial Assistance a. Privative Judicial Assistance b. Concurrent Judicial Assistance c. Combination of Privative and Concurrent E. Lifting of the Judicial Assistance 4. Distinctions of Persons Based on their Capacity to Conclude Juridical Acts A. Fully Capable of Concluding Juridical Acts

110 111 111 112 112 113 113 114 114 115 115 115

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B. Fully Incapable of Concluding Juridical Acts a. Absolutely Incapable b. Relatively (or Temporarily) Incapable c. The Difference between Absolute and Relative Incapacity C. Limitedly Capable of Concluding Juridical Acts a. Minors Having Completed the Tenth Year of Age b. Persons under Privative Judicial Assistance in Part c. Persons under Concurrent Judicial Assistance d. Persons under Privative Judicial Assistance in Combination with Concurrent e. The Difference between the Limited Capacity for Juridical Acts of Minors Having Completed the Tenth Year of Age and Persons who Have been Placed under Privative Judicial Assistance in Part, Concurrent Judicial Assistance, or a Combination of Privative and Concurrent

115 115 116 117 118 119 121 122 123

123

III.

WILL TO CONCLUDE A JURIDICAL ACT

124

IV.

WILL FREE OF DEFECTS

124 124 124 124 125 127 127 127 128 129 129 129 130

1. Error in the Reasons Leading up to the Shaping of the Will A. The Concept B. Distinctions C. Consequences 2. Fraud A. The Concept B. Conditions C. Consequences 3. Threat A. The Concept B. Conditions C. Consequences V.

CONVERGENCE OF WILL AND DECLARATION

1. Simulated Juridical Acts A. The Concept

131 131 131

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VI.

B. Distinctions C. Consequences 2. Error as to the Declaration A. The Concept B. Distinctions C. Consequences

132 132 133 133 133 134

DECLARATION OF THE WILL

135 135 136 136 137 137 138 138 139

1. Unilateral Juridical Acts 2. Contracts A. Stage of Negotiations B. Stage of Promise to Conclude a Contract C. Stage of Conclusion of the Final Contract a. Offer b. Acceptance c. Time of Conclusion of a Contract VII.

COMPLIANCE WITH FORM

1. General 2. Types of Form A. Constitutive and Evidential Form a. Constitutive Form aa. Private Document bb. Notarial Document cc. Declaration before a Public Authority b. Evidential Form B. Form Required by Law and Form Required by the Agreement of the Parties VIII.

XXIII

THE CONTENT OF THE JURIDICAL ACT TO COMPLY WITH THE LAW AND ‘GOOD MORALS’

1. The Content of the Juridical Act to Comply with the Law 2. The Content of the Juridical Act to Comply with ‘Good Morals’

139 139 139 139 139 140 141 141 142 142 142 142 143

CHAPTER D INTERPRETATION OF JURIDICAL ACTS I.

RULES OF INTERPRETATION

145

II.

SUPPLEMENTAL AND ‘CONDITION FORMING’ INTERPRETATION

146

XXIV

TABLE OF CONTENTS

CHAPTER E DEFECTIVE JURIDICAL ACTS I.

CONCEPT AND DISTINCTIONS

148

II.

NULL AND VOID JURIDICAL ACTS

148 148

1. The Concept 2. Difference between Null and Void and Inactive or Inoperative Transaction 3. Types of Nullity A. Initial and Supervening B. Absolute and Relative C. Full and Partial

149 149 149 150 150

III.

VOIDABLE JURIDICAL ACTS

151

IV.

DIFFERENCE BETWEEN NULL AND VOID AND VOIDABLE JURIDICAL ACTS

152

CHAPTER F CONDITIONS AND TERMS (TIME-CLAUSES) I.

CONDITIONS

1. Concept and Elements of the Condition 2. Non-genuine Conditions 3. Types of Conditions A. The Suspensive Condition B. The Resolutory Condition 4. Juridical Acts not Susceptible to Conditions 5. The Impact of Certain Conditions on the Validity of the Juridical Act 6. The Function of the Condition A. Stage of Pendency of the Condition a. Suspensive Conditions b. Resolutory Conditions B. Stage of Fulfillment or Cancellation of the Condition II.

TERMS (TIME-CLAUSES)

1. The Concept 2. ‘Term’ as an Additional Clause to the Juridical Act A. The Concept

153 153 154 154 154 155 155 156 157 157 157 158 159 161 161 161 161

TABLE OF CONTENTS

B. Types a. Suspensive Term (time-clause) b. Resolutory Term (time-clause) C. The Difference between Condition and Term 3. ‘Term’ as an Expression or Determination of Time A. The Concept B. Types C. The Beginning of the Term D. The End of the Term 4. ‘Term’ as a Term of Extinction

XXV

162 162 162 162 162 162 163 163 163 164

CHAPTER G REPRESENTATION AND POWER OF ATTORNEY I.

REPRESENTATION

1. The Concept 2. Types of Representation A. Direct and Indirect B. Active and Passive C. Legal and Voluntary 3. Conditions of Direct Representation II.

POWER OF ATTORNEY

1. The Concept 2. Ways of Granting Power of Attorney 3. Types of Power of Attorney A. General and Specific Power of Attorney B. Express and Tacit Power of Attorney C. Individual and Collective Power of Attorney 4. Form of the Juridical Act Granting Power of Attorney 5. Termination of the Power of Attorney A. Reasons for Termination of the Power of Attorney a. General Reasons b. Special Reasons B. Consequences of Termination C. Transactions after Termination 6. Lack of Power of Attorney 7. Self-contracting

165 165 166 166 166 167 167 169 169 169 170 170 170 170 171 171 171 171 172 173 173 174 176

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3. Law of Obligations INTRODUCTION CHAPTER A THE LAW OF OBLIGATIONS I.

CONCEPT AND DIVISIONS OF THE LAW OF OBLIGATIONS

179

II.

SIGNIFICANCE OF THE LAW OF OBLIGATIONS

179

III.

FUNDAMENTAL PRINCIPLES OF THE LAW OF OBLIGATIONS

180 180 181 182 183

1. The Principle of Autonomy of the Private Will 2. The Principle of Good Faith 3. The Principle of Favoring the Debtor (or the ‘Feebler’ Party) 4. The Principle of Liability CHAPTER B OBLIGATION I.

THE CONCEPT OF OBLIGATION

185

II.

OBLIGATION AND OBLIGATIONAL RELATION

185

III.

OBLIGATION AND RESPONSIBILITY

186

IV.

NATURAL OR IMPERFECT OBLIGATION

187

PART ONE TYPES OF OBLIGATIONS CHAPTER A TYPES OF OBLIGATIONS ACCORDING TO THEIR OBJECT I.

GENERIC AND SPECIFIC OBLIGATIONS

1. The Concept of Generic and Specific Obligations 2. The Significance of Distinguishing between Generic and Specific Obligations 3. Choice 4. Specification (or Concretization) II.

ALTERNATIVE OBLIGATION

1. The Concept of Alternative Obligation 2. Simplification of the Alternative Obligation

189 189 190 190 191 193 193 194

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III.

3. Alternative Faculty 4. The Difference between Alternative Obligation and Alternative Faculty

194

MONETARY OBLIGATION

195 195 195 197 197

1. The Concept of Monetary Obligation and Money A. Money in the Broad Sense of the Term B. Money in the Strict Sense of the Term 2. The Value of Money 3. The Introduction of the Euro as the Legal Currency of Greece A. General B. The Institutional Framework of the Economic and Monetary Union C. Legal Framework for the Euro 4. Rules Applying to the Monetary Obligation 5. Payment of Monetary Obligations A. Debt in National Currency B. Debt in Foreign Currency IV.

OBLIGATION TO PAY INTEREST

1. The Concept of Interest 2. Types of Interest A. Contractual Interest (Interest by Agreement) B. Legal Interest C. Discount Interest 3. Compound Interest V.

XXVII

OBLIGATION TO COMPENSATE

1. The Concept 2. Conditions for the Obligation to Compensate A. Damage a. Concept and Types of Damage b. Types of Property Damage B. Legal Grounds for Liability C. Causal Relation 3. Computation of Benefits in the Assessment of Damage 4. Damage Due to Concurrent Fault of the Injured Party A. Liability to Compensate B. Contribution of the Injured Party to the Damage or Its Extent

195

198 198 198 200 202 202 202 203 203 203 204 204 205 205 206 207 207 207 207 207 208 209 210 211 211 212 212

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TABLE OF CONTENTS

C. Causal Relation 5. Types of Compensation

213 214

CHAPTER B TYPES OF OBLIGATIONS ACCORDING TO THEIR SUBJECT I.

GENERAL

215

II.

DIVISIBLE OBLIGATION

215 215 215 215 216

1. The Concept 2. Distinctions A. Passive Divisible Obligation B. Active Divisible Obligation III.

JOINT AND SEVERAL OBLIGATION

1. The Concept 2. Distinctions A. Passive Joint and Several Obligation B. Active Joint and Several Obligation IV.

INDIVISIBLE OBLIGATION

1. The Concept 2. Distinctions A. Passive Indivisible Obligation B. Active Indivisible Obligation

216 216 216 217 217 218 218 218 218 218

PART TWO CIVIL LIABILITY CHAPTER A THE CONCEPT AND DISTINCTIONS OF CIVIL LIABLITY I.

GENERAL

221

II.

THE CONCEPT OF CIVIL LIABILITY

222

III.

TYPES OF CIVIL LIABILITY

222 222 223

1. Subjective and Objective Liability 2. Contractual and Extra-contractual Liability CHAPTER B CONDITIONS FOR CIVIL LIABILITY I.

GENERAL

225

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II.

UNLAWFUL BEHAVIOR

1. The Concept 2. Reasons for Waiving the Unlawful Character of the Act A. Self-redress B. Self-defense C. State of Necessity D. Consent of the Injured Party III.

FAULT

1. The Concept 2. Capacity for Delictual Liability 3. Degrees of Fault A. Intention a. Immediate Intention b. Eventual Intention B. Negligence a. ‘Gross’ Negligence b. ‘Slight’ Negligence

225 225 226 226 226 226 226 227 227 227 228 228 229 229 229 229 229

CHAPTER C LIABILITY FOR THE ACTS OF THIRD PARTIES (LIABILITY FOR THE ACTS OF AN UNDERLING) I.

GENERAL

231

II.

CONDITIONS FOR THE ESTABLISHMENT OF LIABILITY FOR THE ACTS OF AN UNDERLING

232

CONSEQUENCES OF THE LIABILITY FOR THE ACTS OF AN UNDERLING

233

III.

PART THREE GENERATION OF THE OBLIGATION CHAPTER A CONTRACTUAL OBLIGATIONS I.

GENERAL

235

II.

THE PRINCIPLE OF THE FREEDOM OF CONTRACTS

236

III.

TYPES OF CONTRACTS

236 237 237

1. Formal and Informal 2. Reciprocal and Unilaterally Obliging Contracts

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3. Gratuitous and Onerous Contracts 4. Consensual and Delivery Contracts 5. Forced Contracts and Contracts of Adhesion (or Accession) 6. Mixed (Compound) Contracts 7. Contracts in Favor of or Burdening a Third Party A. Contracts in Favor of a Third Party a. The Concept of the Contract in Favor of a Third Party b. Distinctions of the Contracts in Favor of a Third Party c. Relations between the Parties B. Contracts Burdening a Third Party 8. Regulated and Non-regulated Contracts (Nominate/ Innominate)

238 238 238 239 240 240 240 240 241 241 242

CHAPTER B EXTRA-CONTRACTUAL OBLIGATIONS I.

OBLIGATIONS FROM UNLAWFUL ACTS

1. General 2. Types of Offenses in General 3. Civil, Criminal, and Disciplinary Offense: Relationship 4. Delictual Liability A. General B. Conditions Required for Delictual Liability a. Unlawful Behavior b. Fault c. Damage d. Causal Relation C. Results of the Delictual Act II.

OBLIGATIONS FROM UNJUST ENRICHMENT

1. General 2. Conditions for Unjust Enrichment A. Enrichment of a Person B. Enrichment from the Property or to the Detriment of the Other C. Causal Relation between Enrichment and Impoverishment D. Lack of Legal Grounds for the Enrichment

243 243 244 244 245 245 245 246 246 246 246 246 247 247 247 248 248 248 248

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III.

XXXI

3. Legal Consequences of Unjust Enrichment 4. Cases of Exclusion of the Claim for Unjust Enrichment A. Payment of Non-due Debt with Knowledge of the Facts B. Payment of Non-due Debt Made out of Special Moral Duty or Reasons of Propriety C. Payment for Immoral Cause

250 251

OBLIGATIONS FROM MANAGEMENT OF ANOTHER’S AFFAIRS

252

251 251 252

PART FOUR DEVELOPMENT OF THE OBLIGATION CHAPTER A NORMAL DEVELOPMENT OF THE OBLIGATION I.

WAY OF FULFILLING THE PERFORMANCE

1. Fulfillment of Performance in Good Faith A. General B. Extent of the Application of the Fulfillment of Performance in Good Faith C. Consequences of the Application of Good Faith in the Fulfillment of Performance 2. Partial Fulfillment of Performance 3. Fulfillment of Performance by a Third Party A. General B. Cases where Performance by a Third Party is Precluded C. Consequences of Fulfillment of Performance by a Third Party

255 255 255 256 257 258 259 259 259 259

II.

PLACE OF FULFILLMENT OF THE PERFORMANCE

260

III.

TIME OF FULFILLMENT OF THE PERFORMANCE

261

IV.

RIGHT OF RETENTION

263 263 263 263 263 263 264

1. The Concept 2. Conditions for the Exercise of the Right of Retention A. Claim of the Creditor B. Counter Claim of the Debtor C. Relation between the Reciprocal Claims 3. Way of Exercising the Right of Retention

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4. Consequences of the Exercise of the Right of Retention

264

CHAPTER B ANOMALOUS DEVELOPMENT OF THE OBLIGATION I.

IMPOSSIBILITY OF PERFORMANCE

1. The Concept and Types of Impossibility of Performance A. Impossibility of Performance Arising from Fault and not Due to Fault B. Initial and Supervening Impossibility of Performance C. Subjective and Objective Impossibility of Performance D. Total and Partial Impossibility of Performance E. Natural, Legal, Economic, and Moral Impossibility of Performance 2. Consequences of the Impossibility of Performance A. Impossibility of Performance Arising from Fault of the Debtor a. Total Impossibility of Performance b. Partial Impossibility of Performance B. Impossibility of Performance not Due to Fault a. Total Impossibility of Performance b. Partial Impossibility of Performance II.

DEBTOR’S DEFAULT

265 265 265 266 266 266 267 268 268 268 268 269 269 270

1. The Concept and Conditions for the Debtor’s Default A.Valid Obligational Relation B. Possible Performance C. Past Due Performance D. Actionable Performance E. Call Upon the Debtor to Perform F. Fault of the Debtor 2. Consequences of the Debtor’s Default A. Compensation B. Intensification of the Debtor’s Liability 3. Debtor’s Default Lifted

270 270 270 270 271 271 271 272 272 272 273 273

III.

IMPROPER PERFORMANCE

274

IV.

CREDITOR’S DEFAULT

275

TABLE OF CONTENTS

1. The Concept and Conditions for the Creditor’s Default A. Performance Must be Offered B. Performance Must be Possible C. Performance Must be Furnished ‘in Deed’ D. Appropriate Performance E. Not Acceptance of the Performance Offered 2. Consequences of the Creditor’s Default A. Reduction of the Debtor’s Liability B. Creditor’s Obligation to Pay for Expenses 3. Creditor’s Default Lifted

XXXIII

275 275 275 275 276 276 277 277 277 278

CHAPTER C PRINCIPLES APPLYING TO RECIPROCAL CONTRACTS I.

GENERAL

279

II.

PLEA OF THE UNPERFORMED CONTRACT

279 279

1. The Concept 2. Consequences of Opposing the Plea of the Unperformed Contract 3. Difference between the Plea of the Unperformed Contract and the Right of Retention III.

IMPOSSIBILITY OF PERFORMANCE

1. Impossibility of Performance not Due to Fault 2. Impossibility of Performance Due to Fault A. Impossibility of Performance Due to Debtor’s Fault B. Impossibility of Performance Due to Creditor’s Fault

280 280 281 281 282 282 283

IV.

DEFAULT BY ONE OF THE PARTIES

284

V.

IMPROPER FULFILLMENT OF THE PERFORMANCE

285

VI.

UNFORESEEABLE CHANGE OF CIRCUMSTANCES

285 285 286 286

1. General 2. Conditions for the Application of Article 388 CC 3. Legal Consequences of the Application of Article 388 CC

XXXIV

TABLE OF CONTENTS

PART FIVE REINFORCEMENT OF THE OBLIGATION CHAPTER A GENERAL

289

CHAPTER B EARNEST

291

CHAPTER C PENALTY CLAUSE

293

PART SIX TRANSFER OF THE OBLIGATION CHAPTER A GENERAL

295

CHAPTER B ASSIGNMENT OF CLAIM I.

II.

THE CONCEPT AND CONDITIONS FOR ASSIGNMENT

1. Conclusion of the Assignment Contract 2. Assignable Claim 3. Notification

296 296 296 297

LEGAL EFFECTS OF THE ASSIGNMENT

298

CHAPTER C ASSUMPTION OF DEBT I.

THE CONCEPT

299

II.

PRIVATIVE ASSUMPTION OF DEBT

299

III.

CUMULATIVE ASSUMPTION OF DEBT

300 300

1. General 2. Case of Transfer of Patrimonium or Enterprise in Its Entirety

300

XXXV

TABLE OF CONTENTS

PART SEVEN EXTINCTION OF THE OBLIGATION CHAPTER A PAYMENT I.

THE CONCEPT

303

II.

CONDITIONS FOR VALID PAYMENT

303 304 304 304

1. Payment by the Debtor 2. Payment to the Creditor 3. Appropriate Payment CHAPTER B OTHER PERFORMANCE IN LIEU OF PAYMENT I. II.

CONCEPT AND CONDITIONS FOR FURNISHING OTHER PERFORMANCE IN LIEU OF PAYMENT

305

CONSEQUENCES OF FURNISHING OTHER PERFORMANCE IN LIEU OF PAYMENT

305

CHAPTER C DEPOSIT WITH A PUBLIC BODY I.

CONCEPT AND CONDITIONS FOR DEPOSIT WITH A PUBLIC BODY

1. Legitimate Reason for Deposit 2. Thing Capable of Deposit 3. Deposit with the Appropriate Authority II.

LEGAL EFFECTS OF PUBLIC DEPOSIT

306 306 307 307 307

CHAPTER D SET OFF I.

CONCEPT AND TYPES OF SET OFF

1. Voluntary or Contractual Set off 2. Involuntary or Unilateral Set off II.

CONDITIONS FOR INVOLUNTARY OR UNILATERAL SET OFF

1. Reciprocal Claims 2. Existing and Valid Claims 3. Claims of the Same Kind 4. Past Due Claims

309 309 309 310 310 310 310 310

XXXVI

TABLE OF CONTENTS

5. Set off not to be Prohibited 6. Declaration of Set off III.

EFFECTS OF INVOLUNTARY OR UNILATERAL SET OFF

CHAPTER E RELEASE OF DEBT

311 311 311

312

PART EIGHT REGULATION OF IMPORTANT CONTRACTS CHAPTER A GENERAL

313

CHAPTER B THE MAIN CONTRACTS REGULATED BY THE CIVIL CODE I.

DONATION

1. The Concept and Features of Donation A.The Concept B. Features 2. Conclusion of the Donation Contract 3. Obligations of the Donor 4. Revocation of the Donation II.

SALE

1. The Concept and Features of Sale A.The Concept B. Features 2. Conclusion of the Sale Contract 3. Obligations of the Parties A. Obligations of the Seller a. Principal Obligations b. Collateral Obligations B. Obligations of the Buyer a. Principal Obligations b. Collateral Obligations 4. Non-fulfillment of the Obligations of the Parties A. Non-fulfillment of the Obligations of the Seller a. Liability for Defect in Title aa. The Content of the Liability

314 314 314 314 314 315 315 315 315 315 315 316 316 316 316 317 317 317 317 318 318 318 318

TABLE OF CONTENTS

bb. Release from Liability b. Liability for Material Defects or Lack of Conceded Qualities aa. Introductory bb. Conditions for the Generation of Liability cc. The Content of Liability dd. Release from Liability ee. Guarantee for the Thing Sold B. Non-fulfillment of the Obligations of the Buyer

XXXVII

318 319 319 319 320 321 321 322

III.

EXCHANGE

322

IV.

LEASE OF A THING

323 323 323 323 323 323 324 324 325 325 325 325 325 325 325

1. The Concept and Features of the Lease of a Thing A. The Concept B. Features 2. Conclusion of the Lease of a Thing Contract 3. Obligations of the Parties A. Obligations of the Lessor a. Principal Obligation b. Collateral Obligations B. Obligations of the Lessee a. Principal Obligation b. Collateral Obligations 4. Termination of the Lease A. Lease of a Thing for a Fixed Term B. Lease of a Thing for an Indefinite Period V.

EMPLOYMENT CONTRACT

1. The Concept and Features of the Employment Contract A. The Concept B. Features 2. Conclusion of the Employment Contract 3. Obligations of the Parties A. Obligations of the Employee a. Principal Obligation b. Collateral Obligations B. Obligations of the Employer a. Principal Obligation

326 326 326 326 327 327 327 327 327 328 328

XXXVIII

VI.

TABLE OF CONTENTS

b. Collateral Obligations 4. Termination of the Employment Contract A. Employment Contract for a Fixed Term B. Employment Contract for an Indefinite Period C. Death of the Employee

328 328 328 329 329

CONTRACT FOR WORK

329 329 330 330 330 330 331 331 331 331 331

1. The Concept and Features of the Contract for Work 2. Conclusion of the Contract for Work 3. Obligations of the Parties A. Obligations of the Contractor a. Principal Obligation b. Collateral Obligations B. Obligations of the Master of Work a. Principal Obligation b. Collateral Obligations 4. Termination of the Contract for Work 5. The Difference between Employment Contract and Contract for Work VII.

BROKERAGE

1. The Concept of Brokerage 2. Conclusion of the Brokerage Contract 3. Obligations of the Parties VIII.

MANDATE

1. The Concept and Features of Mandate A. The Concept B. Features 2. Conclusion of the Mandate Contract 3. Obligations of the Parties A. Obligations of the Mandatary B. Obligations of the Mandator 4. Termination of the Mandate IX.

X.

LOAN

332 332 332 332 332 333 333 333 333 333 334 334 334 334

1. The Concept and Features of the Loan A. The Concept B. Features 2. Conclusion of the Loan Contract

334 334 334 335 335

LOAN FOR USE

335

TABLE OF CONTENTS

XI.

1. The Concept and Features of the Loan for Use A. The Concept B. Features 2. Conclusion of the Loan for Use Contract 3. Obligations of the Parties A. Obligations of the Lender for Use B. Obligations of the Borrower for Use 4. Expiration of the Contract of Loan for Use A. Loan for Use for a Fixed Term B. Loan for Use for an Indefinite Period C. Death of the Borrower for Use 5. Difference between Loan for Use and Loan 6. Difference between Loan for Use and Lease of a Thing

335 335 336 336 336 336 336 337 337 337 337 337 338

DEPOSIT

338 338 338 338 338 338 338 339 339 339 339

1. The Concept and Features of Deposit A. The Concept B. Features 2. Conclusion of the Contract of Deposit 3. Obligations of the Parties A. Obligations of the Depositary B. Obligations of the Depositor 4. Termination of the Contract of Deposit A. Deposit for a Fixed Term B. Deposit for an Indefinite Period XII.

XXXIX

GUARANTEE

1. The Concept and Features of the Guarantee A. The Concept B. Features 2. Conclusion of the Contract of Guarantee 3. The Operation of the Contract of Guarantee 4. Differences between the Contract of Guarantee and Cumulative Assumption of Debt

340 340 340 340 340 340 341

CHAPTER C MAIN CONTRACTS IN CONTEMPORARY TRANSACTIONS REGULATED BY SPECIAL LAWS I.

GENERAL

342

XL

II.

TABLE OF CONTENTS

THE LEASING CONTRACT

1. General 2. The Concept and Features of Leasing A. The Concept B. Features 3. Usefulness of the Leasing Contract 4. Conclusion of the Leasing Contract A. Form B. Publicity 5. The Operation of the Leasing Contract A. General B. The Relationship between the Parties a. Relationship between Lessor and Lessee b. Relationship between Lessor and Supplier c. Relationship between Lessee and Supplier 6. Termination of the Leasing Contract III.

THE TIME-SHARING CONTRACT

1. General 2. The Concept and Features of Time-sharing A. The Concept B. Features 3. Usefulness of the Time-sharing Contract 4. Conclusion of the Time-sharing Contract 5. Obligations and Rights of the Parties A. Obligations and Rights of the Lessor a. Obligations of the Lessor b. Rights of the Lessor B. Obligations and Rights of the Lessee a. Obligations of the Lessee b. Rights of the Lessee 6. Protection of the Rights of the Lessee 7. Control of the Time-sharing Contracts and Imposition of Sanctions IV.

THE FACTORING CONTRACT

1. General

342 342 343 343 343 344 345 345 345 346 346 346 346 347 347 347 348 348 348 348 349 350 350 351 351 351 352 352 352 353 353 354 355 355

TABLE OF CONTENTS

V.

XLI

2. The Concept and Features of the Factoring Contract A. The Concept B. Features 3. Usefulness of the Factoring Contract 4. Types of Factoring Contracts 5. Conclusion of the Factoring Contract 6. The Operation of the Factoring Contract A. General B. The Relationship between the Parties a. Relationship between Factor and Supplier b. Relationship between Factor and Debtor-Client c. Relationship between Supplier and Debtor-Client 7. Duration and Expiration of the Factoring Contract A. Factoring Contract for a Fixed Term B. Factoring Contract for an Indefinite Period

355 355 356 357 357 357 358 358 358

THE FORFAITING CONTRACT

360 360 361

1. The Concept of the Forfaiting Contract 2. The Operation of the Forfaiting Contract

358 359 359 359 360 360

CHAPTER D NON-REGULATED OR INNOMINATE CONTRACTS I.

GENERAL

362

II.

THE FRANCHISE CONTRACT

363 363 363 363 363

1. General 2. The Concept and Features of Franchising A. The Concept B. Features 3. Advantages and Disadvantages of the Franchise Contract A. Advantages a. Advantages for the Franchisee b. Advantages for the Franchisor B. Disadvantages a. Disadvantages for the Franchisee b. Disadvantages for the Franchisor

365 365 365 366 366 366 367

XLII

TABLE OF CONTENTS

4. Types of Franchising A. Distribution Franchising B. Franchising of Services C. Production or Industrial Franchising D. Mixed Franchising 5. Conclusion of the Franchise Contract 6. Main Obligations of the Parties A. Main Obligations of the Franchisor B. Main Obligations of the Franchisee 7. Termination of the Franchise Contract A. Franchise Contract for a Fixed Term B. Franchise Contract for an Indefinite Period C. Legal Consequences of the Termination of the Franchise Contract

367 367 367 368 368 368 369 369 369 370 370 370 371

4. Property Law INTRODUCTION

373

PART ONE THINGS CHAPTER A CONCEPT AND DISTINCTIONS I.

THE CONCEPT

375

II.

DISTINCTIONS

376 376 376 376 377 377 377 377 378

1. Movables and Immovables 2. Fungibles and Non-fungibles 3. Consumables and Non-consumables 4. Principal and Dependent 5. Component Parts and Accessories A. Component Parts B. Accessories 6. Things out of Commerce (res extra commercium)

XLIII

TABLE OF CONTENTS

PART TWO POSSESSION CHAPTER A THE CONCEPTS OF POSSESSION AND DETENTION I.

THE CONCEPT OF POSSESSION

381

II.

THE CONCEPT OF DETENTION

382

CHAPTER B ACQUISITION, LOSS, AND PROTECTION OF POSSESSION I.

ACQUISTION OF POSSESSION

1. Original Acquisition 2. Derivative Acquisition

382 382 382

II.

LOSS OF POSSESSION

382

III.

PROTECTION OF POSSESSION

383

PART THREE OWNERSHIP CHAPTER A THE CONCEPT OF OWNERSHIP

385

CHAPTER B TYPES OF OWNERSHIP I.

FULL OWNERSHIP

386

II.

BARE OWNERSHIP

386

III.

CO-OWNERSHIP

386

IV.

OWNERSHIP OF A STOREY OR HORIZONTAL OWNERSHIP

387

V.

VERTICAL OWNESRHIP

388

CHAPTER C RESTRICTIONS OF OWNERSHIP I.

RESTRICTIONS OF OWNERSHIP IMPOSED BY LAW

II.

RESTRICTIONS OF OWNERSHIP

388

XLIV

TABLE OF CONTENTS

FROM THIRD PARTY RIGHTS

389

CHAPTER D ACQUISITION OF OWNERSHIP I.

GENERAL

390

II.

DERIVATIVE ACQUISITION OF OWNERSHIP

390 390 392 392

1. Transfer of Ownership of Immovables 2. Transfer of Ownership of Movables A. The General Rule B. The Exception to the Rule (Transfer of Movable by Non-owner) III.

ORIGINAL WAYS OF ACQUISITION OF OWNERSHIP

1. Acquisitive Prescription A. Ordinary Acquisitive Prescription B. Extraordinary Acquisitive Prescription 2. Occupancy of a Thing Belonging to No one 3. Finding of a Lost Thing CHAPTER E LOSS OF OWNERSHIP

392 394 394 395 396 396 396

397

CHAPTER F PROTECTION OF OWNERSHIP I.

GENERAL

398

II.

MEANS OF PROTECTION

398

PART FOUR SERVITUDES CHAPTER A THE CONCEPT AND DISTINCTIONS I.

THE CONCEPT

401

II.

DISTINCTIONS

401 401 402 402

1. Predial (or Real) Servitudes 2. Personal Servitudes a. Usufruct

XLV

TABLE OF CONTENTS

b. Habitation c. Limited Personal Servitudes

403 404

CHAPTER B CONSTITUTION OF SERVITUDES I.

PREDIAL (OR REAL) SERVITUDES

1. Constitution of Servitude by Juridical Act 2. Constitution of Servitude by Acquisitive Prescription II.

PERSONAL SERVITUDES

1. Usufruct A. Constitution by Juridical Act B. Constitution by Acquisitive Prescription 2. Habitation 3. Limited Personal Servitude

405 405 405 406 406 406 406 407 407

CHAPTER C EXTINCTION OF SERVITUDES I.

PREDIAL (OR REAL) SERVITUDES

408

II.

PERSONAL SERVITUDES

408 408 409 409

1. Usufruct 2. Habitation 3. Limited Personal Servitudes CHAPTER D PROTECTION OF SERVITUDES

409

PART FIVE REAL SECURITY RIGHTS CHAPTER A PLEDGE I.

THE CONCEPT

411

II.

FEATURES

411

III.

TYPES OF PLEDGE

412 413 413

1. Common Pledge 2. Fictitious Pledge (Pledge by Registration)

XLVI

TABLE OF CONTENTS

3. Legal Pledge

413

CHAPTER B COMMON PLEDGE I.

THE CONCEPT

414

II.

CONSTITUTION OF THE PLEDGE

414

III.

RIGHTS AND OBLIGATIONS OF THE CREDITOR SECURED BY PLEDGE

1. Rights 2. Obligations

415 415 415

CONSTITUTION OF MORE THAN ONE RIGHT OF PLEDGE ON THE SAME THING

415

V.

EXTINCTION OF THE RIGHT OF PLEDGE

416

VI.

PROTECTION OF THE RIGHT OF PLEDGE

417

IV.

CHAPTER C FICTITIOUS PLEDGE (PLEDGE BY REGISTRATION) I.

THE CONCEPT

418

II.

LIMITATIONS IN THE CONSTITUTION OF FICTITIOUS PLEDGE

418

III.

ADVANTAGES OF FICTITIOUS PLEDGE

419

IV.

CONSTITUTION OF FICTITIOUS PLEDGE

419

V.

DURATION OF FICTITIOUS PLEDGE

420

VI.

PRIORITY AMONG CREDITORS OF FICTITIOUS PLEDGES

420

VII.

SPECIAL OBLIGATIONS OF THE PLEDGER

420

VIII.

SUPPLEMENTAL AND ‘BY ANALOGY’ APPLICATION OF THE PROVISIONS OF THE GREEK CIVIL CODE

421

CHAPTER D MORTGAGE I.

THE CONCEPT

422

II.

FEATURES

422

III.

CONSTITUTION OF A MORTGAGE

423

XLVII

TABLE OF CONTENTS

1. Title for the Constitution of a Mortgage 2. Recordation of the Title in the Mortgage Records

423 424

IV.

DEBTOR’S RIGHTS OF THE CLAIM SECURED BY MORTGAGE

424

V.

CREDITOR’S RIGHTS OF THE CLAIM SECURED BY MORTGAGE

425

VI.

MORE MORTGAGES ON THE SAME IMMOVABLE

425

VII.

THE LIFTING OF A MORTGAGE

426 426 426

1. Extinction 2. Deletion CHAPTER E PRENOTICE OF MORTGAGE I.

THE CONCEPT

427

II.

CONSTITUTION OF PRENOTICE OF MORTGAGE

427

1. Title Required for the Constitution of Prenotice of Mortgage 2. Recordation of the Title

428 428

CONVERSION OF PRENOTICE OF MORTGAGE TO MORTGAGE

428

III. IV.

LIFTING OF THE PRENOTICE OF MORTGAGE

1. Extinction 2. Deletion

428 429 429

PART SIX THE PUBLICITY OF REAL RIGHTS REGARDING IMMOVABLES CHAPTER A THE SYSTEM OF THE PUBLIC BOOKS OF RECORDATION I.

THE OPERATION OF THE SYSTEM

431

II.

THE DISADVANTAGES OF THE SYSTEM

432

CHAPTER B THE SYSTEM OF LAND REGISTRY I.

THE OPERATION OF THE SYSTEM

433

XLVIII

II.

TABLE OF CONTENTS

THE PRINCIPLES OF THE LAND REGISTRY SYSTEM

434

5. Family Law INTRODUCTION I.

THE CONCEPT OF FAMILY LAW AND FAMILY RELATIONSHIPS

435

II.

REFORMS OF GREEK FAMILY LAW

436

III.

THE CHARACTERISTICS OF FAMILY LAW

436

PART ONE MARRIAGE CHAPTER A REQUIREMENTS FOR VALID MARRIAGE I.

POSITIVE REQUIREMENTS

439

II.

IMPEDIMENTS

440

CHAPTER B FORMALITIES RELATING TO CONTRACTING MARRIAGE I.

DECLARATIONS OF THE WILL

II.

FORMALITIES RELATING TO THE CEREMONY OF MARRIAGE

1. Marriage by Religious Ceremony 2. Civil Marriage CHAPTER C DEFECTIVE MARRIAGE

442 442 442 443

444

CHAPTER D THE RESULTS OF THE MARRIAGE FOR THE SPOUSES I.

PERSONAL RELATIONSHIPS

1. Obligation to Cohabit 2. Running the Conjugal Life 3. The Spouses’ Surname 4. Joint Contribution to the Needs of the Family

445 445 445 445 446

XLIX

TABLE OF CONTENTS

II.

PROPERTY RELATIONSHIPS

1. The Autonomy of Assets 2. Claim to Participate in the Increments 3. ‘Community Property’

446 446 447 448

CHAPTER E DISSOLUTION OF MARRIAGE I.

GENERAL

450

II.

DIVORCE

450 450 450 450 451 451 451 453 453

1. Types of Divorce A. Divorce by Mutual Consent (Uncontested) a. Prerequisites b. Procedure B. Contested Divorce a. Grounds for Divorce b. Procedure 2. The Results of Divorce PART TWO MEDICALLY ASSISTED HUMAN REPRODUCTION AND KINSHIP CHAPTER A MEDICALLY ASSISTED HUMAN REPRODUCTION I.

INTRODUCTORY REMARKS

455

II.

GENERAL CONDITIONS FOR MEDICALLY ASSISTED HUMAN REPRODUCTION TO BE ALLOWED

456

SPECIAL CONDITIONS REQUIRED FOR POST MORTEM MEDICALLY ASSISTED HUMAN REPRODUCTION

457

SPECIAL CONDITIONS FOR MEDICALLY ASSISTED HUMAN REPRODUCTION IN THE CASE OF USE OF A SURROGATE MOTHER

457

THE ANONYMITY OF THE PERSONS WHO HAD OFFERED THEIR SPERM OR FERTILIZED OVA

459

THE FATE OF EXCESS FROZEN SPERM OR FERTILIZED OVA

459

III. IV. V. VI.

CHAPTER B KINSHIP

460

L

TABLE OF CONTENTS

CHAPTER C ESTABLISHMENT OF THE PARENT-CHILD RELATIONSHIP I.

ESTABLISHMENT OF MATERNAL DESCENT

462

II.

ESTABLISHMENT OF PATERNAL DESCENT

462 463 463 463 463 464 464

1. Presumption of Paternity 2. Acknowledgment of Paternity A. Ways of Acknowledgment of Paternity a. Voluntary Acknowledgement b. Judicial Acknowledgement B. The Results of Acknowledgement PART THREE THE RELATIONSHIP BETWEEN PARENTS AND CHILDREN CHAPTER A THE CHILD’S SURNAME I. II.

THE SURNAME OF CHILDREN BORN DURING MARRIAGE

465

THE SURNAME OF CHILDREN BORN OUT OF WEDLOCK

465

CHAPTER B SPECIAL OBLIGATIONS I.

OBLIGATION FOR ASSISTANCE, AFFECTION, AND RESPECT

467

II.

OBLIGATION TO RENDER SERVICES

467

III.

PARENTS’ GRANTS TO THEIR CHILDREN

467

IV.

MUTUAL OBLIGATION FOR MAINTENANCE

468

CHAPTER C PARENTAL CARE I.

THE CONCEPT

470

II.

BEGINNING OF PARENTAL CARE

470

III.

THE EXERCISE OF PARENTAL CARE DURING MARRIAGE

471

LI

TABLE OF CONTENTS

IV.

THE EXERCISE OF PARENTAL CARE IN CASE OF DIVORCE, ANNULMENT, OR INTERRUPTION OF CONJUGAL LIVING

1. General 2. Ways of Dealing with the Issue of the Exercise of Parental Care A. Granting the Exercise of Parental Care to One of the Parents B. Granting the Exercise of Parental Care to both Parents Jointly C. Distributing the Exercise of Parental Care between the Parents D. Granting the Exercise of Parental Care to a Third Party V. VI.

471 471 471 471 472 472 472

THE EXERCISE OF PARENTAL CARE OF CHILDREN BORN OUT OF WEDLOCK

472

THE CESSATION OF PARENTAL CARE

473

PART FOUR TUTELAGE OF MINORS

474

PART FIVE ADOPTION

475

PART SIX FOSTER CARE

476

PART SEVEN JUDICIAL ASSISTANCE

477

PART EIGHT JUDICIAL ADMINISTRATION OF ANOTHER’S AFFAIRS

478

6. Succession Law INTRODUCTION I.

THE CONCEPT OF SUCCESSION LAW

479

LII

TABLE OF CONTENTS

II.

THE SIGNIFICANCE OF TAXING THE INHERITANCE

479

III.

BASIC TERMS OF SUCCESSION LAW

480

PART ONE TESTAMENTARY SUCESSION CHAPTER A THE CONCEPT AND FEATURES OF THE WILL

481

CHAPTER B DRAWING UP A WILL I.

CAPACITY TO DRAW UP A WILL

482

II.

TYPES OF WILLS

482 483 483 483 484 484

1. Ordinary Wills A. The Holographic Will B. The Public Will C. The Secret Will 2. Extraordinary Wills CHAPTER C REVOCATION OF THE WILL I.

THE CONCEPT

486

II.

GENERAL WAYS OF REVOKING A WILL

486

III.

SPECIAL WAYS OF REVOKING A WILL

486

CHAPTER D PUBLICATION OF THE WILL AND DECLARATION OF THE HOLOGRAPHIC WILL AS AUTHENTIC I.

PUBLICATION OF THE WILL

488

II.

DECLARATION OF THE HOLOGRAPHIC WILL AS AUTHENTIC

489

CHAPTER E THE CONTENT AND INTERPRETATION OF THE WILL I.

THE CONTENT OF THE WILL

490

II.

THE INTERPRETATION OF THE WILL

490

LIII

TABLE OF CONTENTS

CHAPTER F NULL AND VOID AND VOIDABLE WILLS I.

NULL AND VOID WILLS

492

II.

VOIDABLE WILLS

493

CHAPTER G THE EXECUTOR OF THE WILL

494

PART TWO SUCCESSION BY VIRTUE OF THE LAW (OR INTESTATE SUCCESSION) CHAPTER A GENERAL REMARKS

495

CHAPTER B RANKS OF INTESTATE SUCCESSION AND SURVIVING SPOUSE I.

FIRST RANK

497

II.

SECOND RANK

498

III.

THIRD RANK

499

IV.

FOURTH RANK

500

V.

FIFTH RANK

500

VI.

SIXTH RANK

500

VII.

THE SURVIVING SPOUSE

500

CHAPTER C COLLATION I.

THE CONCEPT

501

II.

THE WAY COLLATION IS EFFECTED

501

PART THREE FORCED HEIRSHIP CHAPTER A CONCEPT, RANKS, AND PERCENTAGE OF FORCED SHARE

LIV

TABLE OF CONTENTS

I.

THE CONCEPT OF FORCED HEIRSHIP

505

II.

RANKS OF FORCED HEIRSHIP

505

III.

THE FORCED HEIRSHIP SHARE

506

CHAPTER B DISHERITANCE

507

PART FOUR ACCEPTANCE AND RENUNCIATION OF THE INHERITANCE AND UNWORTHINESS OF HEIR CHAPTER A DEVOLUTION AND ACQUISITION OF INHERITANCE I.

THE CONCEPT OF DEVOLUTION OF INHERITANCE

509

II.

ACCEPTANCE OF INHERITANCE

509

III.

RENUNCIATION OF INHERITANCE

510

IV.

ACCEPTANCE OF INHERITANCE WITH THE BENEFIT OF INVENTORY

510

CHAPTER B UNWORTHINESS OF HEIR

512

PART FIVE WAYS FOR PERSONS OTHER THAN THE HEIRS TO DRAW BENEFITS FROM THE ESTATE CHAPTER A FIDEICOMMISSARY SUBSTITUTION OF HEIR (OR FIDEICOMMISSION) I.

THE CONCEPT

513

II.

TIME OF DEVOLUTION OF THE FIDEICOMMISSION

514

CHAPTER B LEGACY I.

THE CONCEPT

515

II.

ACCEPTANCE AND RENUNCIATION OF LEGACY

515

TABLE OF CONTENTS

LV

III.

516

THE DIFFERENCE BETWEEN HEIR AND LEGATEE

CHAPTER C CHARGE (MODUS)

516

CHAPTER D DONATION MORTIS CAUSA

517

PART SIX CERTIFICATE OF HEIRSHIP CHAPTER A THE CONCEPT CHAPTER B CONSEQUENCES OF ISSUANCE OF THE CERTIFICATE OF HEIRSHIP

PART SEVEN JUDICIAL LIQUIDATION OF SUCCESSION PART EIGHT VACANT SUCCESSION INDEX

519

520

521

522 523


∗

A. INTRODUCTION TO LAW ALEXIADIS, S., Elements of Law and Technical Legislation, 1979. nd ARAVANTINOS, I., Introduction to the Science of Law, 2 ed., 1983. KARAKOSTAS, I., Einführung in das Griechische Privatrecht, 2003. nd KERAMEUS, K. – KOZYRIS, PH. (eds.), Introduction to Greek Law, 2 ed.,

1993 (in English). MANOLEDAKIS, I., Introduction to Science, 1980. MICHELAKIS, E., Introduction to Law and the Science of Law, 1968. PANTAZOPOULOS, N., Introduction to the Science of Law, 1976. th VALLINDAS, P., Introduction to the Science of Law, 6 ed., 1956.

B. INTRODUCTION TO CIVIL LAW DELIYANNIS, I., Introduction to Civil Law, 1989. DIMAKIS, P., Introduction to Private Law and Elements of the General

Principles of Civil Law, Vols. A-C, 1986-1987. DORIS, F., Introduction to Civil Law, Vols. A & B1, 1991. IATROU, A., An Outline of the Greek Civil Law, 1986 (in English). KEFALAS, CH., Introduction to Private Law, Vol. A, 3d ed., 2003. KRISPI – NICOLETOPOULOU, E., Elements of Civil Law, Vol. A, 1971. PANAGOPOULOS, K., Introduction to Law and to Civil Law, 1999. SPYRIDAKIS, I., Introduction to Civil Law, 3d ed., 2004. STATHOPOULOS M. – AVGOUSTIANAKIS M. (eds.), Introduction to Civil Law, 1992. th VAVOUSKOS, K., Manual of Civil Law, 5 ed., 1995.

Unless otherwise noted or inferred, all law books listed here are in the Greek language (Translator’s note). ∗

LVIII


C. ARTICLE BY ARTICLE COMMENTARIES ON THE CIVIL CODE ERMAK (INTERPRETATION OF THE CIVIL CODE – collective work under

the general supervision of A. Litzeropoulos): Interpretation of Selected Articles from all the Books of the Civil Code, 1949-1987. GEORGIADIS AP. – STATHOPOULOS M., Commentary on the Civil Code (collective work, Article-by-Article interpretation): Vol. I, General Principles (1978); Vol. II, General Law of Obligations (1979); Vols. III & IV, Special Law of Obligations (1980, 1982); Vols. V & VI, Property Law (1985); Vols. VII & VIII, Family Law (1991, 2003 {2nd ed.}); Vols. IX & X, Succession Law (1996, 1998). SPYRIDAKIS, I. – PERAKIS, E., Civil Law, Vol. A, General Principles (1976); Vol. B/1, Law of Obligations, General Part (1978); Vol. B/2, Law of Obligations, Special Part (1978); Vol. C, Property Law (1970); Vol. D, Family Law (1977); Vol. E, Succession Law (1977). D. GENERAL PRINCIPLES OF CIVIL LAW ASPROGERAKAS – GRIVAS, K., General Principles of Civil Law, 1981. th BALIS, G., General Principles of Civil Law, 8 ed., 1961. FILIOS, P., General Principles of Civil Law, Vol. A (2001); Vol. B (2002). GAZIS, A., General Principles of Civil Law, Vols. A-C (1970-1974). GEORGIADIS, AP., General Principles of Civil Law, 3d ed., 2002. KARASSIS, M., General Principles of Civil Law – The Juridical Act, Vol. A,

1996. KARASSIS, M., Manual of General Principles of Civil Law – The Law of the

Juridical Act, 1996. PAPACHRISTOU, A., General Principles of Civil Law (Article-by-Article

interpretation), 1987. PAPANTONIOU, N., General Principles of Civil Law, 3d ed., 1983. PAPASTERIOU, D., General Principles of Civil Law, Vols. I/a (1994); I/b (1998). SHINAS, G., Elements of Civil Law, Vol. A, General Principles, 1989. th SIMANTIRAS, K., General Principles of Civil Law, 4 ed., 1988. SPYRIDAKIS, I., General Principles (According to the Civil Code), 1987. nd TOUSSIS, A., General Principles of Civil Law, 2 ed., Vols. A & B, 1979. VATHRAKOKILIS, B., General Principles, 2001.


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E. LAW OF OBLIGATIONS BALIS, G., Law of Obligations, General Part, 3d ed., 1969. DELIYANNIS, I., Law of Obligations, Introduction (University Lectures),

1976. DELIYANNIS, I. – KORNILAKIS, P., Special Law of Obligations, Vols. I, II,

and III, 1992. nd FILIOS, P., Law of Obligations, General Part, 2 ed., 1996. FILIOS, P., Law of Obligations, Special Part, Vols. I/1 (2002); I/2 (1997); II/1 (1998); II/2 (1998). FOURKIOTIS, K., The Greek Law of Obligations, General Part (unfinished), Vol. A (1964); Vol. B (1996); Vol. C (1972); Vol. D (1974). GEORGIADIS, AP., Law of Obligations, General Part, 1999. th GEORGIADIS, AP., New Types of Contracts in Contemporary Economy, 4 ed., 2000. GEORGIADIS, AP., Law of Obligations, Special Part, Vol. I, 2004. th GEORGIADIS, AST., Law of Obligations, General Part, Vols. I-II, 4 ed., 2003. KAFKAS, K. – KAFKAS, D., Law of Obligations (Article-by-Article Interpretation) Special Part, 5th ed., Vol. A (1974); Vol. B (1975). KEFALAS, CH., Manual of the General Law of Obligations, 1984. KORNILAKIS, P., Abridged Special Law of Obligations, 2000. KORNILAKIS, P., Special Law of Obligations, Vol. I, 2002. LITZEROPOULOS, A., Elements of the Law of Obligations (University Lectures), 1960. MANTZOUFAS, G., Law of Obligations, 3d ed., 1959. MICHAILIDIS – NOUAROS, G., Law of Obligations (University Lectures), 1959. PAPACHRISTOU, A., Law of Obligations, General Part, 1986. SHINAS, G., Elements of Civil Law, Vol. B, Law of Obligations, General Part (1989); Vol. C, Law of Obligations, Special Part (1989). SPYRIDAKIS, I., Manual of Civil Law, General Law of Obligations, 3d ed., 2004. nd SPYRIDAKIS, I., Manual of Civil Law, Special Law of Obligations, 2 ed., 2004. STATHOPOULOS, M., Contract Law in Hellas, 1995 (in English). STATHOPOULOS, M., General Law of Obligations, 3d ed., 1998. TOUSSIS, A., Law of Obligations, Vol. I, General Part (1973); Vol. II/1, Special Part (1975).

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TRIANTAFYLLOPOULOS, K., The Greek Law of Obligations, General Part,

3d ed., 1943. ZEPOS, P., Law of Obligations, A: General Part, 2nd ed., (1955); B: Special Part, 2nd ed., (1965). F. PROPERTY LAW BALIS, G., Property Law, 1961. nd DIMAKIS, P., Property Law, 2 ed., 1986. FILIOS, P., Property Law, Vols. I & II, 2000. GEORGIADIS, AP., Property Law, Vol. I (1991); Vol. II (1993). GEORGIADIS, AP., On Securing Credits, 2001. KARIBALI – TSIPTSIOU, Y., Property and Trust Law in Hellas, 2003 (in

English). KOUSOULAS, CH., Property Law, 2004. PAPACHRISTOU, A., Property Law, 1985. PAPASTERIOU, D., Manual of Property Law, Vol. I/a (1999); Vol. I/b

(2000); Vol. II (2001), Vol. III/a (2004). SPYRIDAKIS, I., Property Law, Vols. A, B, C, 2001. th TOUSSIS, AN. (TOUSSIS AR. ed.), Property Law, 4 ed., 1988. VAVOUSKOS, K., Property Law, 1986. G. FAMILY LAW BALIS, G., Family Law, 1961. DASKAROLIS, G., Lectures on Family Law, Vol. I (1992); Vol. II (2002). DELIYANNIS, I., Family Law, Vol. I, 1986. DELIYANNIS, I. – KOUTSOURADIS, A., Family Law, Vol. II, 1987. FILIOS, P., Family Law, Vol. I (2003); Vol. II (2004). GAZIS, A., The New Family Law: Its Problems, 1985. KOUMANTOS, G., Family Law, Vols. I & II , 1988. KOUNOUGERI – MANOLEDAKI, E., Family Law, Vols., I & II, 3d ed.,

2003. MICHAILIDIS – NOUAROS, G., Family Law, 1975. PANAGOPOULOS, K., Family Law, 1998. nd PAPACHRISTOU, TH., Manual of Family Law, 2 ed., 1998. PAPADIMITRIOU, G., Family Law, 1997. ROILOS, G. – KOUMANTOS, G., Family Law, Vols. I-III (1965-1966). SPYRIDAKIS, I., Family Law, 1984. th TOUSSIS, A., Family Law, 4 ed., 1979.

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VATHRAKOKILIS, B., Family Law, 2000.

H. SUCCESSION LAW th

BALIS, G., Succession Law, 5 ed., 1965. DIMAKIS, P., Succession Law, 1987. th FILIOS, P., Succession Law, General Part, 5 ed., 2003. th FILIOS, P., Succession Law, Special Part, 5 ed., 2003. LITZEROPOULOS, A., Succession Law, Vol. A (1957); Vol. B (1958). nd PAPACHRISTOU, A. Succession Law, 2 ed., 1983. PAPANTONIOU, N., The Law of Succession, 3d ed., 1989. PSOUNI, N., Succession Law, Vol. I, 2004. SPYRIDAKIS, I, Manual of Civil Law: Succession Law, 3d ed., 2004. SPYRIDAKIS, I., Succession Law, 2002. TOUSSIS, A., Succession Law, 1969. VOUZIKAS, E., Succession Law, Vol. I (1972); Vol. II (1976); Vol. III

(1983).

LIST OF ABBREVIATIONS AP ArcN Arm CC CCPr ComN CrC decis ECB ECSB EEC EMI EU EmergL ERMAK Civil FEK footn KNoB L LegD No NoB para PrD RoyD subpara

Areios Pagos (Greek Supreme Court) Archives of Court Rulings (Archeio Nomologias, a Greek Law Journal) Armenopoulos (a Greek Law Journal) Civil Code Code of Civil Procedure Commercial Law Criminal Code decision European Central Bank European System of Central Banks European Economic Community European Monetary Institute European Union Emergency Law in Greek ‘EPMAK’ (article-by-article Commentary on the Civil Code/various authors) Issue of the Official Government Gazette (Fyllo Efimeridos tis Kiverniseos) footnote Code of Law Tribune (Kodikas Nomikou Vimatos) Law Legislative Decree Number Law Tribune (Nomiko Vima, a Greek Law Review) paragraph Presidential Decree Royal Decree subparagraph

1. Introduction to Law

CHAPTER A LAW, MORALITY, CUSTOM I. THE CONCEPT OF LAW From the moment man began living in society – even of a rudimentary type – it became obvious that it was necessary to find a way to regulate human relations. Thus the first rules of communal living emerged. Most of these rules are rules of law.1 Law is the sum total of heteronomous rules regulating communal living in a mandatory way. When analyzing the above definition, it is necessary to offer certain clarifications: 1. Heteronomous rules are the rules enacted by the state following a certain procedure. People do not regulate their social relations by themselves. 2. The qualification of such rules as mandatory signifies that non compliance with them results in sanctions. 3. Finally, by stating that these rules regulate life in a social setting we mean that said rules regulate the external behavior of man; not his inner world. II. RULES OF MORALITY Rules of morality are the autonomous rules addressing the inner world of man. The rules of morality have the following characteristics:

1

For the concept of the rules of law, see below Ch. E, I.

2


1. They are autonomous. In contrast to the rules of law which are heteronomous, the rules of morality stem from the conscience of man. 2. Contrary to the rules of law which regulate the external behavior of human beings, the rules of morality address the inner world of man, i.e. the human conscience. 3. The rules of morality are not mandatory and, unlike the rules of law, non compliance with them does not result in sanctions. The only consequence for man when not complying with the rules of morality is his guilt feelings. Example: In case of non compliance with a rule of law, such as when a person kills another person, there are sanctions. Non compliance with the rules of morality does not result in sanctions. For example, if one is covetous of his neighbor’s assets, the only consequence is that he will have guilt feelings.

However, despite their differences, there is a close connection between the rules of law and the rules of morality. A great number of the rules of law are influenced by the rules of morality. This can be seen from the fact that many a time the rules of law make reference to the rules of morality in which case the latter become indirectly rules of law. For example, Articles 1782 and 9193 of the Greek Civil Code expressly refer to the ‘good morals’ (boni mores).4 III. RULES OF CUSTOMS Rules of customs are the non mandatory rules concerning the social behavior of men. As is the case with the rules of law, the rules of customs concern the external behavior of man, but, as is the case with the rules of morality, they are non mandatory. Non compliance with them may result in social disapprobation. Examples of rules of customs: Exchange of greetings between persons who know each other; offering a present to a friend on his birthday; expression of condolences in the case of death of a relative or friend.

2

Article 178 of the Greek Civil Code stipulates: “A transaction which is contrary to good morals shall be null and void.” 3 Article 919 of the Greek Civil Code stipulates: “A person who has intentionally caused prejudice to another in a manner contrary to good morals shall be liable for compensation.” 4 ‘Good morals’ are the views on morality, and especially social morality, of the average social man.

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In certain instances the rules of law refer to modes of behavior established in business transactions, in which case such behavioral rules are considered as rules of customs. For example, Articles 200 and 288 of the Greek Civil Code5 make reference to the business usage.6

5

Article 200 stipulates: “Contracts shall be interpreted according to the requirements of good faith, taking also into consideration business usage.” Article 288 stipulates: “The debtor shall be bound to fulfill the performance in accordance with the requirements of good faith taking also into consideration business usage.” 6 Business usage refers to the sum total of practices prevailing in transactions.

CHAPTER B DIVISIONS OF LAW I. DOMESTIC AND INTERNATIONAL LAW 1. Domestic Law Domestic law is the sum total of rules regulating the legal relations of persons living in a state. 2. International Law International law is the sum total of rules regulating those legal relations which extend beyond the boundaries of the state. II. BRANCHES OF DOMESTIC LAW The domestic law has two branches: public law and private law. 1. Public Law Public law is the sum total of rules regulating on the one hand the organization and operation of the state and on the other hand the relations of the citizens with the state. By organization and operation of the state we mean not only the organization and operation of the state per se, but also of the various legal persons of public law exercising state authority, e.g. the municipalities, the communities, etc. By relations between state and citizens which are regulated by public law, we mean the relations in which the state, or any legal person of public

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law,1 acts as an authority exercising agent, i.e. as a party which, in the course of its exercise of supreme authority, is capable of compelling the citizens to conform. In this category fall, for example, the rules imposing taxes, the rules concerning military service, the rules imposing punishment on those who commit crimes, etc. The main branches of public law are: A. Constitutional Law Constitutional law is the sum total of rules which define the form of government of the state, establish the basic principles of organization and operation of the state, and determine the individual rights of the citizens. B. Administrative Law Administrative law is the sum total of rules regulating the organization and operation of the sector of public service. C. Criminal Law Criminal law is the sum total of rules determining the acts punishable by law and the penalties to be imposed if such acts are committed. D. Procedural Law Procedural law is the sum total of rules determining on the one hand the organization and operation of the courts and on the other hand the procedure to be followed before the courts for the sake of proper conferment of justice. The branch of procedural law is subdivided in law of civil procedure, law of criminal procedure, and law of administrative procedure, depending on the category to which the disputes under litigation belong. 2. Private Law Private law is the sum total of rules regulating the relations between persons who are equal vis-à-vis each other. In other words the private law regulates relations between persons, natural or legal, or between private citizens and the state where the latter is not acting as an authority exercising agent. 1

See below General Principles of Civil Law, Part One, Ch. C, II, 1.

6


Rules of private law are, for example, the rules regulating the contracts of sale, loan, or services. The same rules regulate the relations in which the state is involved as a private citizen, e.g. purchase or lease of an immovable on the part of the state for the purpose of using it as office space. The main branches of private law are the following: A. Civil Law Civil law is the law regulating the relations between all persons when they act as private citizens, e.g. it regulates their relations vis-à-vis other persons and things. The civil law constitutes the general private law, as opposed to other branches of private law which have detached themselves and constitute the special private law. Following the division of the Greek Civil Code in Five Books, the Greek civil law is divided into the following five parts: a. General Principles: in the general principles are contained the general rules which apply not only to civil legal relations but also to legal relations regulated by other branches of law. b. Law of Obligations: the law of obligations contains the rules regulating the so called ‘obligational relations’, i.e. the legal relations created between creditors and debtors (e.g. loan, sale, lease of a thing). c. Property Law: the property law contains the rules regulating the relations between persons and things (e.g. rules regulating matters of ownership, pledge, mortgage). d. Family Law: the family law contains the rules regulating family relations (e.g. relations resulting from marriage, divorce, or the relationships between children and parents). e. Succession Law: the succession law contains the rules regulating the fate of the estate of the deceased (e.g. how should a will be drawn up, who shall inherit the estate of the deceased in case he has not drawn up a will). B. Commercial Law Commercial law is the branch of private law referring to and regulating matters of commerce. The main branches of commercial law are the following:

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a. General Commercial Law: the general commercial law contains general rules referring to the qualifications of the merchant and the definition of commercial activities. b. Law of Commercial Companies (Business Associations): the law of commercial companies regulates matters pertaining to commercial companies.2 c. Law of Negotiable Instruments: the law of negotiable instruments refers to such negotiable instruments as, for example, bills of exchange, promissory notes, checks, etc. d. Bankruptcy Law: the bankruptcy law refers to matters of the bankruptcy of merchants. e. Insurance Law: the insurance law refers to matters of private insurance. f. Maritime Law: the maritime law regulates on the one hand the acquisition of and profiting from sea-vessels and on the other hand matters of transportation by sea. g. Aviation Law: the aviation law regulates matters of transportation by air. C. Labor Law Labor law is the sum total of rules regulating the relationships generated from dependent employment. The labor law is divided in two parts: individual and collective labor law. a. Individual Labor Law: the individual labor law regulates the relationship of dependent employment, e.g. the conclusion of the employment contract, the rights and obligations of employer and employee, the termination of employment, etc. b. Collective Labor Law: the collective labor law refers to collective agreements, collective industrial disputes, and the organization and operation of trade unions and employers’ associations. Although labor law is a branch of private law, it harbors tendencies of veering to the direction of public law. This happens because, for the sake of protection either of the employees or of society as a whole, the state interferes and regulates a number of issues, especially in the area of collective labor law. Thus, many labor law rules are rules of public law. 2

The following are commercial companies (business associations): the general partnership, the limited partnership, the silent partnership, the close corporation (often called ‘limited liability company’), the corporation, and the cooperative.

8


D. Law of Intellectual Property The law of intellectual property is the sum total of rules regulating the rights of persons as creators of intellectual work, e.g. the rights of the author or of the music composer. III. BRANCHES OF INTERNATIONAL LAW The main branches of International Law are Public International Law, Private International Law, Criminal International Law, and the Law of the European Union (European Community Law). 1. Public International Law Public international law is the sum total of rules regulating the relations among various states. 2. Private International Law Private international law is the sum total of rules determining which law will apply in a legal relation where several states are involved. For example, if a German citizen causes an accident in Greece, which law will determine matters of his liability: the German or the Greek? Or, if a Dutchman marries a Greek woman and they live in Belgium, the question arises: according to which law (the Dutch, the Greek, or the Belgian) will their relations to their children be regulated? 3. International Criminal Law International criminal law is the sum total of rules regulating the criminal responsibility of states and providing for the sanctions to be imposed as regards acts seriously offending the universal principles of law. The objective of the international criminal law is to punish crimes against humanity (usually committed at wartime), e.g. genocide. 4. Law of the European Union (or European Community Law) The law of the European Union or European Community Law is the sum total of rules governing the structure, authority, operation of the European Union, and its relations with the member states, the citizens of the

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member states, and with other countries.3 The law of the European Union is primarily public law at a supranational level. Many of its rules, however, refer to private law, in particular to commercial and labor law.4 The law of the European Union is divided into primary and secondary. A. Primary Community Law Primary Community law is the law of the Treaties which established or amended the European Communities.5 The primary Community law consists basically of the three founding Treaties of the European Communities,6 the various Treaties of accession of the new member states7 to the European 3

See P. Kanellopoulos, The Law of the European Union, 4th ed., 2003, p. 262. See P. Dagtoglou, European Community Law, Vol. I, 2nd ed., 1985; P. Agallopoulou, Introduction to European Community Law, 1988, p. 65. 5 The various Treaties which are concluded following direct negotiations between the governments of the member states of the European Union are subsequently ratified by the national parliaments of these states. 6 After the end of World War II the need for European unification was intensely felt. But the main step towards the European unification was taken on May 9, 1950 by the then French Foreign Minister Robert Schumann. Based on an initial proposal of Jean Monnet, Schumann put forward a plan aiming at placing the entire Franco-German production of coal and steel under the control and supervision of a Supranational Authority in the framework of an organization in which other European countries could participate. This proposal was accepted by Belgium, Germany, France, Italy, Luxembourg, and The Netherlands and on April 18, 1951 the Treaty founding the European Community of Steel and Coal (ECSC) was signed in Paris. It entered into force on July 25, 1952. Few years later, and specifically on March 25, 1957, the six members of the first European Community signed in Rome the Treaties for the foundation of the European Economic Community (EEC) and the European Atomic Energy Community (EURATOM) which entered into force on January 1, 1958 (see Agallopoulou, op. cit., p. 11 et seq.; Th. Christodoulidis, “The Historic Background of the European Unification”, in K. Stefanou – A. Fatouros – Th. Christodoulidis, (eds.), Introduction to European Studies, (collective work), Vol. A, 2001, p. 25 et seq., esp. p. 36 et seq.; K. Stefanou, European Integration, 6th ed., Vol. A, 2002, p. 17 et seq.). 7 The European Communities of the initial six members (Belgium, France, Germany, Italy, Luxembourg, and The Netherlands) subsequently expanded with the addition of new members which signed Treaties of accession. More specifically: (a) the Treaty of accession of Great Britain, Denmark, and Ireland was signed on January 22, 1972 and entered into force on January 1, 1973; (b) the Treaty of accession of Greece was signed on May 28, 1979 and entered into force on January 1, 1981; (c) the Treaty of accession of Spain and Portugal was signed on June 12, 1985 and entered into force on January 1, 1986; (d) the Treaty of accession of Sweden, Finland, and Austria was signed on June 25, 1994 and entered into force on January 1, 1995; (e) the Treaty of accession of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia was signed on April 16, 2003 and entered into force on May 1, 2004. 4

10


Communities, the Single European Act,8 the Treaty for the European Union (Treaty of Maastricht),9 the Treaty of Amsterdam,10 and the Treaty of Nice.11 At this point it is important to note that the Single European Act, and to a much greater extent the Treaty for the European Union (Treaty of Maastricht), constitute landmarks in the evolution of the European unification.12 The Treaty of Amsterdam does not compare in significance to the Single European Act and the Treaty for the European Union. This is because on the one hand it does not include steps of major importance towards the unification of Europe and on the other hand it omits fundamental amendments necessary mainly for the envisioned broadening of the European Union.13 Finally, it should be noted that the most recent Treaty, the Treaty of Nice, chiefly aimed at the institutional preparation of the European Union precisely in order to realize the maximum broadening of its scope.14 15 The above account, despite its brevity, suffices to reveal the main trend in the development of the European Union: a progressive concern for 8

The Single European Act, which was signed on February 17/28, 1986 and entered into force on July 1, 1989, made important changes to the original Treaties. In particular it obliged the European Community to establish the internal market by December 31, 1992, increased the rights of the European Parliament, gave official status to the European Council, strengthened the economic and social cohesion among the member states, and established the european political cooperation (see Agallopoulou, op. cit., p. 18; Christodoulidis, op. cit., p. 73 et seq.). 9 The Treaty for the European Union (Treaty of Maastricht), which was signed on February 7, 1992 and entered into force on November 1, 1993, made very important changes to the original Treaties. The Treaty of Maastricht established the European Union, founding it on the European Communities, as the latter were supplemented by new community policies and forms of cooperation. 10 The Treaty of Amsterdam, which was signed on October 2, 1997 and entered into force on May 1, 1999, revised the Treaty for the European Union and established a more democratic Europe securing the respect of human rights and democratic principles by the member states. 11 The Treaty of Nice, signed on February 26, 2001 and entered into force on February 1, 2003, made changes to the Treaty for the European Union and the founding Treaties of the European Communities. This Treaty basically aspired to regulate institutional matters not previously regulated by the Treaty of Amsterdam (see A. Gerontas – I. Markakis (eds.), The Treaty of Nice, 2002; P. Kanellopoulos, op. cit., p. 70 et seq.). 12 See P. Dagtoglou, Basic Elements of the Treaty of Maastricht, 1993, p. 21. 13 See P. Dagtoglou, Basic Elements of the Treaty of Amsterdam, 1999, p. 41. 14 The case of the subsequent accession of the ten states (see above footn. 7, e) is directly related to this development. 15 Other states which have applied for membership to the European Union are Bulgaria, Romania, and Turkey.

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broadening the European Union on the one hand and for establishing it as a political entity in the new world order on the other. In this light it is not surprising that the issue of a Constitution for the European Union would arise. Indeed, with the European Union coming to a turning point in its existence, the European Council which met in Laeken, Belgium, on December 14 and 15, 2001, convoked the European Convention on the Future of Europe.16 On July 18, 2003 the President of the European Convention officially submitted to the President of the European Council in Rome draft of a Treaty for the establishment of a Constitution for Europe which had been earlier adopted by consensus by the European Convention on June 13 and July 10, 2003. This Constitution: -

“enshrines the citizen’s rights by incorporating the European Charter of Fundamental Rights; turns Europe towards its citizens by holding out new opportunities for them; establishes a clear, transparent apportionment of powers between the Union and its member states, enabling national parliaments to intervene, and provides Europe with stable, democratic, and effective institutions.”17

This draft of the Treaty for the establishment of the Constitution of Europe constituted a good starting point for the Intergovernmental Conference. Certain modifications to the basic text have already been agreed by the Intergovernmental Conference in their meeting of June 17/18, 2004. The Treaty establishing the Constitution was finally signed on October 29, 2004 by the heads of state or government of the 25 member states and the 3 candidate countries. This Treaty can only enter into force when it has been ratified by each of the signatory countries in accordance with the constitutional procedures of each of them (parliamentary approval and/or referendum). Once the Treaty has been ratified and the ratification has been 16

The composition of the European Convention was such that included the main parties involved in the discussion on the future of the European Union: representatives of the heads of states or governments of the member states, representatives of the national parliaments of the member states, members of the European Parliament, representatives of the European Commission (in Internet site, http://european-convention.eu.int). 17 See V. Giscard d’ Estaing, Chairman of the European Convention, Rome Declaration, July 18, 2003 (in Internet site: http://european-convention.eu.int).

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officially notified by all the member states, it can enter into force and become effective. B. Secondary or Derivative Community Law Secondary Community law is the law consisting of the acts of the legislative organs of the European Union issued according to the process laid down by the primary Community law. More specifically: The European Parliament18 jointly with the Council,19 or the Council by itself, or the European Commission20 issue regulations and directives, make 18

The European Parliament consists of representatives of the member states of the European Union elected every five years by direct universal suffrage. Its composition reflects the major political currents in the European Union. One of its main functions is the legislative function. Specifically, the European Parliament examines the proposals of the Commission and, along with the Council, exercises the legislative power conferred upon it (Arts. 189-201, Treaty of the European Community). 19 The Council of the European Union, or Council of Ministers, consists of a representative of each member state at the ministerial level. It convenes under different compositions depending on the issues on the agenda (e.g. financial matters, international affairs, education). It is the legislative organ of the European Union. Many a time it exercises its legislative function jointly with the European Parliament. Moreover, the European Council’s task is to ensure the coordination of the general economic policies of the member states (Arts. 202-210, Treaty of the European Community). The Council of the European Union should not be confused with the European Council which is composed of the heads of state or government and aims at two things: to propel the European Union towards development and to determine its general orientation. The European Council does not adopt legal acts which are binding for the member states in a formal way (see Art. 13, Treaty of the European Union). Moreover, the Council of the European Union should not be confused with the Council of Europe which is an international organization. 20 The European Commission, or just “The Commission”, consists of members selected by the various member states on the basis of their general competence and undisputed independent standing. Up until April 30, 2004, their number was twenty. With the accession to the European Union of the ten new members on May 1, 2004, the members of the Commission became thirty. This number was to hold until October 31, 2004 since the office of the present Commission would run until then. After November 1, 2004 there will only be one member per country, i.e. twenty five members in all. Once the European Union reaches the number of twenty seven states, i.e. once Bulgaria and Romania join the European Union, the Council will fix the maximum number of commissioners. The Commission has the right to initiate legislation. Consequently, it formulates legislative proposals and submits them to the Council and the European Parliament (‘right of initiative’). The legislative process of the European Union largely depends on the effective cooperation of these three organs. In addition to its legislative function, the European Commission monitors the observance and

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decisions, and express recommendations and opinions.21 The following is a brief discussion of the regulations, directives, decisions, and recommendations and opinions of the European Union. a. Regulations: the regulations apply in full to all member states, are binding as regards all their parts, and are directly applicable to the member states.22 Thus, the characteristics of the regulations are the following: -

they apply to all member states throughout the European Union, regardless of national borders; they are binding as regards all their parts and their application is mandatory, i.e. a member state may not apply the provisions of a regulation incompletely or selectively; they are directly applicable to the member states, i.e. it is not necessary for the regulations to be transposed into national law because they confer rights and impose duties in the same way as national law.

The regulations are published in the Official Journal of the European Union and enter into force on the day specified in them or, in the absence thereof, on the 20th day following that of their publication.23 b. Directives: the directives are only binding for the member state to which they are addressed as far as the objective to be achieved is concerned but leave the selection of the form and methods for the fulfillment of the objective set forth by them to the national authorities.24 Thus, the characteristics of the directives are the following: proper implementation of the Community Law by the member states (Arts. 211-219, Treaty of the European Community). 21 See Art. 249, Treaty of the European Community. 22 Examples of regulations: (1) Council Regulation (EC) No 2026/1997 of October 6, 1997 on protection against subsidized imports from countries not members of the European Community; (2) Council Regulation (EC) No 1215/1999 of June 10, 1999 amending Regulation No 19/65/EEC on the application of Article 81, 3 of the Treaty to certain categories of agreements and concerted practices; (3) Council Regulation (EC) No 44/2001 of December 22, 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; (4) Council Regulation (EC) No 6/2002 of December 12, 2001 on Community designs and models. 23 See Art. 254, 2 Treaty of the European Community. 24 Examples of directives: (1) Commission Directive 90/388/EEC of June 28, 1990 on competition in the markets for telecommunication services; (2) Council Directive 92/59/EEC

14


-

-

Contrary to the regulation, which is generally binding, the directive is only binding for the member state(s) it is addressed to, without it being excluded, of course, that it may be addressed to all member states. The directive is binding for the member state it addresses as regards the objective to be achieved; but it is left to the national authorities to decide on the form and methods through which the objective will be incorporated into their national legal systems. This implies that the member states, while obliged to achieve the objective of the European Union directive, and in fact within the time frame set for it by the directive itself, in so doing they have the flexibility to take into account their special national circumstances. Thus, the law-making process unfolds in two stages:

In the first stage (European Community stage) the objective laid down by the directive is determined in a binding way as far as the specific addressees are concerned and the same is true regarding the time frame within which it must be achieved. In the second stage (national stage) the objective set by Community Law is transposed into the national law of the member state(s) it addresses and becomes incorporated in it by the issuance on the part of the latter of the relevant acts. As was earlier mentioned, the member states are free to choose the form and methods by which to transpose into national law their Community obligations generated by the directive. For example, it is immaterial to the European Union if Greece, in order to achieve the objective aimed at by a Community directive, opts for the issuance of statutory law, Presidential decree, or Ministerial decision. The directives are published in the Official Journal of the European Union. If they are addressed to all the member states, they enter into force (just like the regulations) on the day specified in them or, in the absence thereof, on the 20th day following that of their publication.25 Other directives take effect on the day the member states they are addressed to are notified.26

of June 29, 1992 on general product safety; (3) Council Directive 93/13/EEC of April 5, 1993 on unfair terms in consumer contracts; (4) Directive 1999/44 of the European Parliament and of the Council of May 25, 1999 on certain aspects of the sale of consumer goods and associated guarantees. 25 See Art. 254, 2, Treaty of the European Community. 26 See Art. 254, 3, Treaty of the European Community.

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15

c. Decisions: The decisions are binding as regards all their parts for all the recipients referred therein. Recipients of a Community decision may be one or more member states27 as well as natural or legal persons, i.e. private citizens, companies, etc.28 Thus, the characteristic traits of a decision are the following: -

-

The decision is binding only for its recipients which may be one or many (member states or persons, natural or legal). Therefore, the character of the decision is individual and this is where it differs from the regulation. The decision is binding as regards all its parts. Therefore, it differs from the directive which is binding only with regard to its objective. The recipients of the decisions are notified and upon such notification the decisions take effect.29

d. Recommendations and opinions: The recommendations aim at offering advice to the recipient to conform to a certain behavior.30 The opinions constitute the expression of an estimation of circumstances or facts.31 Recipients of the recommendations and opinions are usually member states but it is also possible for them to address natural or legal persons as well. The recommendations and opinions are not binding. Consequently, they do not entail legal consequences for their recipients.

27

Example of a Community decision addressed to a member state: according to Articles 87 and 88 of the Treaty of the European Community, the Commission of the European Union may with a decision permit or prohibit the granting of public aids. 28 Example of a Community decision addressed to persons: decision of the Commission of the European Union ascertaining the abuse of a company’s dominant position in the market (Art. 85, Treaty of the European Community) or decision declaring the nullity of agreements tampering with free competition (Art. 81, Treaty of the European Community). 29 See Art. 254, 3 Treaty of the European Community. 30 If, for example, it is feared that the adoption or amendment of provisions laid down by law may cause distortion to the concept of free competition in the common market, the European Commission may recommend to the member state(s) involved such measures as may be appropriate to avoid the distortion in question (Art. 97, Treaty of the European Community). 31 If, for example, the Commission considers that a member state has failed to fulfill an obligation under the Treaty, it delivers a well reasoned opinion on the matter, after giving the member state concerned the opportunity to submit its remarks (Art. 226, Treaty of the European Community).

CHAPTER C SOURCES OF LAW According to Article 1 of the Greek Civil Code, the sources of law are the law and the custom. However, aside from these two, sources of law are also the generally accepted rules of international law, the international treaties which have been ratified by law, and the rules of law of the European Union. I. THE LAW 1. Concept and Distinctions Law is the written rule, i.e. the statutes enacted by the state. The law is distinguished in substantive and formal. By substantive law we mean the statutes enacted by the state which establish rules, it being irrelevant which particular organ enacted them. By formal law we mean the law which is generated by the appropriate (according to the Constitution) legislative organ, i.e. the Parliament and the President of the Republic and for the enactment of which the process laid down by the Constitution has been followed.1 It follows from the above definitions that the difference between substantive and formal law lies in this: in the substantive law we focus on the content, i.e. we examine whether the statute contains a legal rule or not, whereas in the formal law we focus on the form with which the law in question is clothed. ∗

According to the Constitution currently in force (of 1975, amended in 1986 and 2001), Greece is a “presidential parliamentary democracy” (Translator’s note). 1 The laws are voted by the Parliament; they are promulgated and published by the President of the Republic (Arts. 26, para. 1; 42; 70-77 of the Greek Constitution). ∗

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Usually the formal law is also substantive, such as for example the Constitution, the Civil Code, L. 1268/1982 concerning the structure and operation of the universities, L. 1329/1983 amending the Greek Civil Code so as to harmonize it with the constitutional principle of the equality of sexes. There are, however, cases where a formal law is not necessarily substantive law as well, such as for example the budget of the state which does not contain a legal rule. The opposite is equally possible, i.e. that a law may be substantive without also being formal. For example, a police ordinance imposing a fine to those disturbing the peace and quiet contains a substantive legal rule. As is evident from Article 1 of the Greek Civil Code, only the substantive statute constitutes a source of law, i.e. the statute containing a legal rule regardless of whether it is also formal law. 2. When the Law Enters into Force Regarding the question when a law enters into force we need to distinguish between the statute’s formal and substantial validity. This distinction, however, is only relevant when we have a formal statute establishing a substantive legal rule. A. When the Law Enters into Force Formally The law enters into force formally at the time of its publication in the Official Government Gazette (FEK). Such publication helps determine which law is the most recent one. This is important given the fact that the posterior law repeals the anterior of contrary content. ∗

B. When the Law Enters into Force Substantively The law enters into force substantively, i.e. it is enacted, ten days after its publication in the Official Government Gazette,2 provided that the law itself does not stipulate otherwise. In the computation of the ten day time period, the day on which the law was published in the specific issue of the Official Government Gazette is not included, i.e. the ten day time period begins on the day following the publication (Art. 241, 1 CC) and ends at the

The acronym FEK (ΦΕΚ) stands for ‘Issue of the Government Gazette’/ ‘Φύλλο Εφηµερίδος της Κυβερνήσεως’ (Translator’s note). ∗

2

See Art. 103, Introductory Law to the Civil Code.

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expiration of the entire tenth day since publication (Art. 242 CC). For example, if a law was published in the issue of the Official Government Gazette dated February 1, it will enter into force on February 12. Nonetheless, the fact that the enforcement of the law begins ten days after its publication in the Official Government Gazette holds only if the law itself does not make other provisions in this regard. This is because several times the law itself specifies the day on which it shall enter into force. Many laws contain the standard phrase that they shall enter into force at the time of their publication in the Official Government Gazette, such as, for example, L. 1268/1982 on the structure and operation of the universities, L. 1329/1983 which amended the Greek Civil Code so as to reflect the principle of equality between the sexes. Other laws state that they shall enter into force after a period of time longer than the ten days following their publication in the Official Government Gazette, such as L. 1837/1989 on the protection of minors regarding employment contracts which stipulates that the law shall enter into force three months after its publication in the Official Government Gazette. During the time extending between the publication of the law and the date it enters into force the law is substantively inactive. 3. Repeal of the Law A law is repealed by a posterior law. Article 2 of the Greek Civil Code stipulates that “the law remains in force so long as it has not been abrogated, explicitly or implicitly, by another rule of law”. When one examines this statement, and in view of the fact that, according to Article 1 of the Greek Civil Code, all rules of law are contained in the laws and the customs, one might think that the law may be repealed by either a law or a custom. However, in the Legislative Decree of May 7/10, 19463 it was expressly stated that “the custom cannot abrogate the law.” Consequently, the law may only be repealed by another, more recent, law. A law may be repealed explicitly or implicitly. The repeal is explicit when the newer law contains a specific provision stating that the earlier law is thereby abrogated. The repeal is implicit when the content of the more recent law is contrary to or incompatible with the content of the earlier law. 3

See Art. 2 para. 2, LegD May 7/10, 1946 “On the Restoration of the Civil Code and its Introductory Law”.

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4. Retroactive Effect of the Law According to Article 2 of the Greek Civil Code, the law provides for the future and has no retroactive effect. Retroactive effect of a law means that the law may be applied to situations or relations which were created prior to its entering into force. In principle, the law does not have retroactive effect. Exceptionally, it is possible for a law to have retroactive effect either because it explicitly states so, or because this is deduced from its content, as, for example, in the case of interpretive laws which are considered in force from the time the law they interpret was enacted.4 II. THE CUSTOM 1. The Concept Custom is the unwritten rule of law established after long and consistent practice of a certain behavior by the members of a society in the belief that it constitutes mandatory law. The elements of the custom are: A. Consistent adoption of a uniform behavior over a long period of time. B. Belief on the part of those following such behavior that there exists a corresponding rule of law compelling them to do so. The customs to which the Civil Code refers are those established after the Greek Civil Code had entered into force, i.e. after February 23, 1946, because the ones that were in force prior to that time had been explicitly abrogated by law.5 Today the significance of customs is limited due to the fast pace at which social life progresses and the constant issuance of laws. 2. Distinctions of Customs The customs are distinguished in general, local, and special. A. General Custom General custom is the custom which holds throughout the country. For example, before the enactment of the Civil Code, in Greece the belief that

4 5

See below Ch. E, III, 1. See Art. 1, Introductory Law to the Civil Code.

20


the unmarried status of the sisters should prevent the brother from getting married tended to be elevated to general custom. B. Local Custom Local custom is the custom which holds in a certain local area. For example, before the enactment of the Greek Civil Code, there was a custom in the Aegean islands according to which the firstborn son would inherit the father’s patrimony and the firstborn daughter the mother’s to the exclusion of the other siblings. Moreover, the custom called for the mother to also bequeath one of her farmlands to her firstborn son. C. Special Custom Special custom is the custom applying to the persons of a certain group, such as for example the merchants’ customs or the physicians’ code of behavior based on custom. 3. When the Custom Enters into Force The custom is considered having entered into force from the time it was created. 4. When the Custom is Abolished The custom may be abrogated explicitly or implicitly by the enactment of a posterior law. Explicit, for example, is the abrogation by law6 of all the customs that existed in Greece before the Civil Code was put into force. It is also possible for a custom to be abrogated by another, more recent custom, opposite or different from the earlier one. III. THE GENERALLY ACCEPTED RULES OF INTERNATIONAL LAW According to the Constitution, “the generally accepted rules of the international law” constitute a source of law.7 These rules constitute a direct source of domestic law because they are integrated in the Greek law and

6 7

See Art. 1, Introductory Law to the Civil Code. See Art. 28, para. 1 of the Greek Constitution.

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prevail over every contrary statutory provision. For this to happen, no particular act on the part of the state is needed. The theory of Public International Law determines which the ‘generally accepted rules of the international law’ are. Such are the rules of the general international customs and the general principles of law recognized by the state, e.g. the rules about conducting war or the responsibility of the state for its illegal acts. In case of doubt as to whether a rule constitutes a generally accepted rule of the international law, the matter will be decided by the Supreme Special Court provided by the Constitution.8 IV. THE RATIFIED BY LAW INTERNATIONAL TREATIES According to Article 28, para. 1 of the Greek Constitution, “the international treaties, as from their ratification by law and their coming into force under the conditions of each of them,9 shall constitute an integral part of domestic Greek law and shall prevail over any contrary statutory provision.” When interpreting the above constitutional provision we see that ‘ratification of the international treaty’ calls on the one hand for a parliamentary vote on the relevant formal law10 and on the other hand for clothing the treaty in question with the appropriate status conferred to it by a Presidential act issued in accordance with the rules of the international law.11 Examples of such texts of international law are the International Treaties by which organizations such as the United Nations or the Council of Europe were established. Also, the International Conventions adopted by international organizations, such as, for example, the International Conventions of Labor of the International Labor Organization or the International Conventions of the United Nations or the Council of Europe.

8

See Article 100, para. 1 (f) of the Greek Constitution. An International Treaty, for example, may include the provision that in order to be put to force it needs to be ratified by at least a certain number of states. 10 See Art. 28, para. 1 in conjunction with Art. 36, para. 2 of the Greek Constitution. 11 See K. Ioannou – K. Economidis – Ch. Rozakis – A. Fatouros, Public International Law (Theory of Sources), 1988, p. 117 et seq.; Ev. Venizelos, Lessons of Constitutional Law, 1991, p. 144. 9

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V. THE RULES OF LAW OF THE EUROPEAN UNION (OR EUROPEAN COMMUNITY LAW) 1. Rules of Primary Community Law The rules of primary Community law12 became domestic Greek law from the moment the Treaty of accession of Greece to the European Communities was ratified or from the moment of ratification of the Treaties amending the founding Treaties, such as the Single European Act, the Treaty for the European Union (Treaty of Maastricht), the Treaty of Amsterdam, and the Treaty of Nice, in accordance with the process laid down by Article 28, paras. 2 and 3 of the Greek Constitution.13 2. Rules of Secondary or Derivative Community Law In view of the fact that Greece, by acceding to the European Communities acceded to a Community with law making authority, i.e. the authority to create rules of law,14 it is not only the rules of primary Community Law that are directly binding and, consequently, constitute a source of law for the country, but also many of the rules of secondary or derivative Community Law.15 More specifically: A. The regulations are binding as regards all their parts and have general and direct legal force in every member state. B. Regarding the directives, it should be mentioned that they constitute a type of Community general statute (“loi-cadre”) which is most appropriate for harmonizing legislations.16 As was already mentioned, the member states are bound only by the objective set forth by the directives; but when transposing such directives into their national law, they have the flexibility of taking into account the national circumstances. Consequently, we must distinguish between the following: 12

See above Ch. B, III, 4, A. The Treaty of accession of Greece to the European Communities was ratified by L. 945/1979; the Single European Act was ratified by L. 1681/1987; the Treaty for the European Union was ratified by L. 2077/1992; the Treaty of Amsterdam was ratified by L. 2691/1999; the Treaty of Nice was ratified by L. 3001/2002. 14 See Dagtoglou, European Community Law, op. cit., p. 199. 15 See above Ch. B, III, 4, B. 16 See N. Moussis, European Union: Law, Economy, Politics, 9th ed., 2001, p. 23. 13

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a. If the member state has taken the necessary legislative or administrative steps in order to transpose the directive into its national law, i.e. if in the case of Greece it has transposed it into Greek law, the directive takes effect immediately since it thus becomes part of the domestic law.17 b. However, in case a directive has not been transposed into national law, the European Court of Justice has determined through a long line of cases that, under certain circumstances, the citizen of a member state may appeal directly to the provisions of such directive.18 That is, in this case the citizen of a member state may vindicate the rights conferred to him by a given directive and even be successful as he pleads his case before the national courts. For this to happen (i.e. for a directive to take immediate effect), the following conditions need to concur according to the consistent view of the European Court of Justice established through a long line of cases: -

the provisions of the directive must lay down the rights of the European Union citizen with sufficient clarity and precision; the specific right invoked must not be dependent on a condition or a measure that the member state may take; the national authorities must not have any room for maneuver regarding the content of the rules to be enacted; the time period provided for the transposition of the directive into national law must have already expired.

The European Court of Justice has applied the principle of ‘immediate effect’ only in cases between citizens and member states and then only when the directive was for the citizen’s benefit and not to his detriment.19 On the contrary, the ‘immediate effect’ of the directives has not 17

Examples of directives that have been incorporated to Greek law: with L. 2472/1997 Greek law was adapted to the provisions of Directive 95/46/EC of the European Parliament and of the Council of October 24, 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. With PrD 150 of June 25, 2001 Greek law was adapted to Directive 99/93/EC of the European Parliament and of the Council of December 13, 1999 regarding the Community framework for electronic signatures. 18 See Dagtoglou, op. cit., p. 226 et seq.; G. Vitalis, Community Legal Order, 1988, p. 45 et seq.; Agallopoulou, op. cit., p. 74; N. Skandamis, European Law (Institutions and Legal Orders of the European Union), Vol. I, 3d ed., 1997, p. 437 et seq.; Kanellopoulos, op. cit., p. 274; P. Paparseniou, Community Directives and Citizen’s Rights, 2002, p. 59 et seq. 19 This is the so-called ‘vertical direct effect’. In its judgments in A. Francovich and D. Bonifaci the European Court of Justice held that member states are liable to pay damages

24


been accepted by the European Court of Justice in relations among the citizens themselves.20 It should also be pointed out that after the expiration of the time period set for the transposition of a directive into national law, the directive acquires full legal status vis-à-vis all, i.e. all state authorities are obliged to interpret and apply national law according to the directive in question. C. The decisions which are addressed to a member state and compel it to exhibit a certain behavior from which flow citizen’s rights may also produce immediate legal effects for the citizens of the European Union, if the above mentioned conditions required for the directive to produce such results concur. This means that, in this case, the citizens of the member state to which a decision is addressed may have recourse to the national courts in order to seek legal protection regarding the rights conferred to them by the decision in question.21

where loss is sustained by reason of failure to transpose a directive or by transposing it incompletely. It was the question of eventual liability of the member state in the event of failure of timely transposition of a directive pertaining to the protection of the employees in case of the employer’s insolvency (see the jointly tried cases C-6/90 Francovich and C-9/90 Bonifaci, in European Court Reports 1991, p. I-05357). 20 This is the so-called ‘horizontal direct effect’ (see Moussis, op. cit., p. 23). 21 See Dagtoglou, op. cit., p. 225; Vitalis, op. cit., p. 47 et seq.; Agallopoulou, op. cit., p. 75; Skandamis, op. cit., p. 452 et seq.

CHAPTER D JUDICIAL DECISIONS (JURISPRUDENCE) AND THE WORK OF LEGAL SCHOLARS I. JUDICIAL DECISIONS (JURISPRUDENCE) By judicial decisions (jurisprudence ) we mean the sum total of court rulings giving answers to specific legal questions. The court rulings do not constitute a source of law but they contribute to the formation of law in the following ways: ∗

1. by interpreting the rules of law; 2. by filling a vacuum in the law (lacuna). This happens when the court rulings shape new institutions lying outside the existing legal framework (e.g. regarding matters of improper performance or the deactivation of a right); 3. by providing a concrete content to certain abstract legal notions (e.g. ‘good morals’, ‘good faith’, ‘important cause/reason’). When through a string of court rulings the same judgment is made on a specific legal issue, we talk about consistent judicial precedent. Nevertheless, such consistent judicial precedent is not formally binding for the courts which in a future case of similar content may rule differently. However, in actuality the consistent judicial precedent of higher courts does have a binding effect for the lower courts. This is especially true of the consistent judicial precedent of the Court of Cassation (Areios Pagos), the Greek Supreme Court,1 which may be The term literally means wisdom of the law, prudenatia juris (Translator’s note). Regarding the structure and hierarchy of the civil courts, see below General Principles of Civil Law, Part Two, Ch. E, I, 2. ∗

1

26


considered as the most important means for creating customary law as far as the meaning of a specific rule of law is concerned. That is, when the same legal meaning has been consistently given to a rule of law by Areios Pagos, it is reasonable to believe that the view of the courts will be the same in the future as well. II. THE WORK OF LEGAL SCHOLARS The work of legal scholars, i.e. the theoretical study of law, does not constitute a source of law. The mission of the work of legal scholars is the following: 1. To study the rules of law in force and to provide interpretation, critique, and suggestions as to how to fill an eventual vacuum in the law. 2. To occupy itself with matters of legislative policy, i.e. study the social data, provide a critique of the existing legal framework, point out the need for change, and propose alternative new statutes, as they may seem appropriate.

CHAPTER E RULES OF LAW I. THE CONCEPT Rules of law are the heteronomous rules1 regulating the social life of people in a mandatory way. The rules of law are contained in the statutes of law and in the customs (Art. 1 CC). II. DISTINCTIONS We will limit ourselves to the most important distinctions of the rules of law. They are: 1. Rules of Law that are General – Rules of Law that are Special A. Rules of Law that are General Rules of law that are general are the rules regulating all the situations and relations of persons without distinctions. For example, in the framework of private law, civil law is a law that is general.2 B. Rules of Law that are Special Rules of law that are special are the rules of law regulating certain categories of legal relations. For example, in the framework of private law, labor law is a law that is special because its rules apply only to a certain category of persons, the persons who are in a dependant relationship of employment. 1 2

Regarding the meaning of the term ‘heteronomous rule of law,’ see above Ch. A, I. See above Ch. B, II, 2, A.

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2. Rules of Non-mandatory and of Mandatory Law (or Public Policy) A. Rules of Law that are Non-mandatory Rules of non-mandatory law (jus dispositivum) are the rules which apply only if the parties have not agreed otherwise, i.e. those rules which may be set aside by the will of the parties. Example: In the Article 595 of the Greek Civil Code it is stipulated that in the case of lease of a thing the rent shall be paid at the agreed or usual time periods. If no agreement regarding such periods exists, the rent is payable at the expiration of the lease. This provision contains a non-mandatory rule of law because it allows the parties to determine the time for the payment of the rent as they see fit. Only if such determination has not been made in the rental agreement is the last part of the provision of the law applicable, i.e. the provision that the rent is payable at the expiration of the lease.

B. Rules of Law that are Mandatory (Rules of Public Policy) Mandatory rules of law (jus cogens) are the rules of law which must apply regardless of the content of the parties’ will. Those rules cannot be set aside by the will of the parties. Example: For the valid transfer of ownership of an immovable a notarial deed is needed (Arts. 369 and 1033 CC). It is not possible for the parties to agree between themselves that a private document will suffice. If, despite this prohibition, the parties proceed to transfer the ownership of an immovable by a private document, the transfer will be null and void, i.e. it will not generate any legal effects.3

III. INTERPRETATION OF THE RULES OF LAW By interpretation of a rule of law we mean the attempt to discover its meaning. There are two kinds of interpretation: authentic interpretation (interpretation authnentica) and scientific interpretation (intepretatio doctrinalis). 1. Authentic Interpretation By authentic interpretation we mean the interpretation provided by the legislator himself through another statute of law called interpretive law.

3

See below General Principles of Civil Law, Part Three, Ch. E, II, 1.

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Example: Let us suppose that a certain law makes provisions for unemployment benefits to be given to young unemployed persons without specifying who qualifies for ‘young unemployed.’ To clarify this, another law is passed specifying what is meant by ‘young unemployed’: a person who has completed the twentieth year of age but is not older than twenty nine and has been out of work for such and such time from the day he was registered in the special registry for the ‘young unemployed’. The second statute of law is retroactive, i.e. it is considered in force from the time of the enactment of the law it interprets.

Even Articles of the Civil Code interpret other Articles. For example, Article 973 explains what is meant by ‘real rights’: the rights securing direct and against all (erga omnes) power over a thing. The meaning of ‘thing,’ however, is given by Article 947 of the Greek Civil Code stipulating that ‘things’ are only corporeal objects. In this case Article 947 is interpretive of Article 973. 2. Scientific Interpretation Scientific interpretation is the work of the jurists (judges or theoreticians of law) and it may be literal, rational, or teleological. A. Literal Interpretation Literal interpretation is the interpretation focusing on the letter of the law, that is, on the wording of the law. For this type of interpretation one has recourse to the rules of grammar and linguistics. For example, we use literal interpretation to find out the meaning of the word ‘to’ in Article 331 of the Greek Civil Code where it is stated that “…the rules of Articles 915 to 918 are applicable.” With the help of this kind of interpretation we establish that in the reference made in Article 331 the word ‘to’ means that Article 918 is included in the counting (“915 to 918 inclusive”). B. Rational Interpretation In order to interpret a rule of law rationally we have recourse to certain arguments. These arguments are the following: a. The ‘argumentum a contrario’: this is the argument where we make the following inference: since the law expressly regulates a certain matter, say matter x, the contrary must hold true for matter y which is diametrically opposite to matter x.

30


Example: Articles 915-917 of the Greek Civil Code stipulate which persons are incapable of being legally at fault for purposes of delictual responsibility. By way of contrast, those not mentioned therein are capable of delict and may be held liable.

b. The ‘argumentum a minore ad majus,’ i.e. the argument that what is prohibited by law for the lesser, is prohibited all the more for the greater. Example: Since, according to Article 136 of the Greek Civil Code, even the minor who has reached the age of fifteen cannot conclude an employment contract as an employee unless he has the consent of the persons exercising care over him, it follows that the minor who has not reached the age of fifteen cannot enter into such employment contract.

c. The ‘argumentum a majore ad minus,’ i.e. the argument that what is permitted by law for the greater, is permitted all the more for the lesser. Example: If the highest permissible interest for a loan is 8%, it follows that it is permissible to conclude a loan agreement at 5%.

d. The ‘argumentum a silentio legis,’ i.e. the argument where we infer that the conclusion we draw on a certain matter is true from the fact that the law remains silent on it. Example: Article 1475 of the Greek Civil Code rules that a father may acknowledge as his own a child born outside of wedlock provided that the mother gives her consent. If the father has died, such acknowledgment may be effected by the paternal grandfather or grandmother. By the fact that the law states nothing regarding the possibility for other descendants of the grandfather or the grandmother, i.e. the child’s uncles and aunts, to provide such acknowledgement, it follows (argumentum a silentio legis) that the lawmaker wanted to exclude these other parties.

C. Teleological Interpretation The teleological interpretation focuses on the purpose the specific rule of law serves. In order to discover this purpose several things are taken into consideration, e.g. the previously existing law, the preliminary work done during the stage of preparation of the law in question, the events leading up to the institution of the specific rule of law. The teleological interpretation may be either of the corrective or of the supplementing type.

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a. Corrective interpretation Corrective interpretation is used when the lawmaker expressed himself in either a more restrictive or a more expansive way than he intended. Corrective interpretation is distinguished in broad interpretation (interpretatio extensiva) and narrow interpretation (interpretatio restrictiva). aa. Broad interpretation: this type of interpretation is used when the lawmaker expressed himself more restrictively than he intended. In this instance, with the use of broad interpretation the same rule of law is applied to other cases which we consider included according to the spirit of the law. Example: Article 4 of the Greek Civil Code stipulates that the ‘alien’ in the masculine gender enjoys the rights of the national. By broadly interpreting the term ‘alien’ in the masculine gender the alien female is also included.

bb. Narrow interpretation: this type of interpretation is used when the lawmaker expressed himself in a broader way than he intended. By using the narrow interpretation we limit the cases to which the letter of the law leads us to believe that the rule applies so as to include only those that the lawmaker intended to include. Example: The reference made in the Article 1115 of the Greek Civil Code is to the ‘common real right’ without specification as to whether such right is on things movable or immovable. By using the narrow interpretation, and in conjunction with the mention of the requirement for notarial deed in the second part of the sentence in the same Article, it is being accepted that the rule of law in question refers to things immovable and not movable.

b. Supplemental interpretation The supplemental interpretation helps fill the vacuums (lacuna) which exist in the law. Such vacuums exist in the law in the following instances: aa. when the lawmaker, although aware of a certain matter, did not regulate it; Example: Article 947, para. 2 of the Greek Civil Code states that “shall also be deemed things the natural forces or energies, in particular the electric current and the heat, in so far as such forces are subject to control when concentrated within a limited space.” The lawmaker deliberately left out the magnetic forces and nuclear energy so that the vacuum might be filled by interpretation.

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bb. when the lawmaker did not think of a certain case, such as for example the improper fulfillment of the performance or the deactivation of a right; cc. when the lawmaker could not have anticipated a certain case because it emerged after the specific law entered into force. Example: An old law (L. 2269/1920) regulated the work schedule of employees in companies engaged in the transportation of persons or things by land (motor and railroad) or by sea. It made no mention of air transportation because the use of air transportation was not generalized at the time.

The supplemental interpretation is effected by way of analogy. Analogy is the application of a certain rule of law to a case for which it was not originally intended but which has similarities with the one regulated by the law. Example: L. 2269/1920 which had no provision for matters of air transportation was nevertheless applicable to them up until a law was passed specifically regulating air transportation. This was possible because the case of air transportation had similarities with the cases of motor, railroad, and sea transportation which were regulated by L. 2269/1920.

2. General Principles of Civil Law

INTRODUCTION I. THE MEANING OF THE TERM “CIVIL LAW” The civil law regulates the legal relations of all persons acting as private citizens. The civil law is not the law of the ‘urban dwellers.’ The reason for the adoption of the term ‘civil law’ is explained historically. The term ‘civil law’ is the translation of the Latin term jus civile which for the Romans signified the law of the civitas, i.e. of the ‘city-state’ (any ‘city-state’) and included both the private and the public law. Later on, when the law of the Roman Empire was codified by the Emperor Justinian, it was named corpus juris civilis, i.e. the body of law governing the civitas, the ‘city-state,’ including again both the private and the public law. At the end of the Middle Ages, when the scientific editing of the Justinian legislation began, the use of the term jus civile was limited to the private law because the public law of that time was regulated by new institutions. Thus, the term jus civile ended up referring solely to the private law. In Greek, the Latin term jus civile was originally rendered as “political law.” The term “civil law” was first used by the first Civil Law of 1856 which encompassed both civil and political rights. It served the purpose of distinguishing between ‘political’ and ‘civil’ rights. ∗

In classical antiquity the Greek term polis and its Roman equivalent civitas did not simply mean the city, as opposed to the countryside, but a state known as ‘city-state’ in which the sovereignty was vested in the free citizens of an independent city and extended over the territories under its direct control (Translator’s note). ∗

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II. THE HISTORY OF THE GREEK CIVIL CODE The first attempts to draft a Civil Code began in 1835 and the last one was undertaken in 1930 by the Venizelos government when a Constitutive and a broader Revisory Committee were established producing in 1933 the “Draft of the Civil Code.” But the final editing of the Draft of the Civil Code was assigned to Professor Georgios Balis by the Metaxas government and the Civil Code published in 1940 (Emergency Law 2250/1940) was intended to become operative on July 1, 1941. However, war and foreign occupation led to the suspension of its operativeness. After the liberation, it was decided to revise the Civil Code. This resulted in the publication of Emergency Law 777/1945 entitled “Greek Civil Code” which came into force on February 23, 1946. However, few months later, the Legislative Decree of May 7/10, 1946 retroactively repealed the Civil Code of 1945 and put into force, also retroactively (i.e. from February 23, 1946), the Civil Code of 1940.1 The Civil Code of 1940, with certain subsequent revisions, is valid to this day. The following laws significantly reformed the Greek Civil Code: -

-

1

L. 1250/1982 established the civil marriage alongside the religious one. L. 1329/1983, in addition to introducing the necessary reforms so as to reflect the equality of rights between the two sexes, which is in line with the Constitution, also proceeded to partially modernize the Greek Civil Code, especially in matters of family law. Specifically, this law established the eighteenth year of age as the age of majority (as opposed to the previous twenty first), modified the institution of divorce, abolished the institution of dowry, restructured the relationships between parents and children substituting ‘paternal care’ for ‘parental authority,’ and equated the children born out of wedlock with children born in marriage. L. 2447/1996 further modernized institutions of family law which had not been previously included in the reform introduced by L. 1329/1983. More specifically, this law radically restructured the institutions of

Up to the time that the Civil Code entered into force, according to the Decree of February 23, 1835, the following were in force in Greece: the Byzantine-Roman Law, as modified by subsequent laws, and three local codes: the Ionian code, the code of Samos, and the code of Crete, operative in the corresponding geographical areas.

GENERAL PRINCIPLES OF CIVIL LAW

-

35

adoption and tutelage of minors, introduced the institution of foster care, and replaced the antiquated institutions of ‘judicial interdiction’ and ‘judicial supervision’ by the new, contemporary one of judicial assistance. L. 3043/2002 drastically reformed the provisions of the Greek Civil Code regarding the seller’s liability for real defects and for the absence of conceded qualities. L. 3089/2002 on medically assisted human reproduction regulated the various methods of assisted medical reproduction and the way it affects matters of descent.

The text of the Civil Code was officially recast into the simplified version of Modern Greek, demotike, by PrD 456/1984. ∗

III. USEFULNESS OF THE KNOWLEDGE OF CIVIL LAW The usefulness of the knowledge of civil law is immeasurable. The rules of civil law accompany man throughout his life and regulate practically all his actions, from the simplest (e.g. buying groceries or using transportation by making use of the various means of transportation) to the most serious ones (e.g. purchase or sale of immovables, marriage, divorce, or the drawing up of a will). Even after man’s death, it is the civil law (specifically the law of succession) that regulates matters pertaining to his estate. Moreover, the knowledge of civil law, which is the most important branch of private law, facilitates the knowledge of the other branches of law. For anyone not necessarily aiming at practicing law, the knowledge of certain basic concepts of civil law is indispensable because in the business world the transactions revolving around goods, labor, and capital are mainly regulated by the civil law, such as for example the contracts of sale, exchange, loan, and guarantee.

Demotike (the demotic) is the form of Modern Greek based on colloquial use and characterized by the free acceptance of loanwords and the simplification of inflections. The previous form of Modern Greek, the katharevousa (from ‘katharos’, meaning pure), was the language conforming to classic Greek and rejecting foreign vocabulary. See Webster’s Third New International Dictionary, 3d unabridged edition (Translator’s note). ∗

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IV. THE CONTENT OF THE GENERAL PRINCIPLES OF CIVIL LAW Following the division of the Greek Civil Code, the civil law of Greece is divided in five parts: General Principles, Law of Obligations, Property Law, Family Law, and Succession Law.2 The General Principles include the general rules which govern not only civil legal relations but also legal relations included in other branches of law. More specifically, the General Principles contain the provisions of the law regarding persons, rights, and juridical acts.

2

For a brief account of the content of each branch of law, see above Introduction to Law, Ch. B, II, 2, A.

PART ONE THE SUBJECTS OF LEGAL RELATIONS CHAPTER A GENERAL I. LEGAL CAPACITY (OR CAPACITY TO HOLD RIGHTS AND ASSUME OBLIGATIONS) The subjects of legal relations1 are the persons. This implies that the persons can hold rights and assume obligations (Art. 34 CC), because every legal relation generates rights and obligations. The ability for one to be the subject of rights and obligations is called legal capacity, or ability to hold rights and be subject to duties, or personality.2 Every person has the ability to hold rights and be subject to duties. II. TYPES OF PERSONS The Greek law recognizes two types of persons, natural and legal. 1. Natural Persons All human beings are natural persons regardless of age or other distinctions such as gender, citizenship etc. In the old days not all persons 1

For the concept of legal relation, see below Part Two, Ch. A, I. For the difference between legal capacity, capacity to conclude juridical acts, and capacity for delictual liability (i.e. to be held accountable for civil wrongdoing), see below Part Three, Ch. C, II, 2. 2

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were considered natural persons since there were slaves who were not deemed capable of being the subject of rights and duties. 2. Legal Persons Legal persons are unions of persons pursuing a certain goal or aggregates of property assets appointed to serve a given purpose and having acquired an independent personality (legal personality) by complying with the rules of law. This means that the entities in question are thus enabled to hold rights and assume obligations. These entities are called “legal persons” because they are not entities that exist in nature, as is man, but obtain their legal existence through a rule of law.

CHAPTER B NATURAL PERSONS I. BEGINNING AND END OF NATURAL PERSONS 1. Beginning of the Natural Person A. The natural person begins with live birth. The birth of a person, assuming of course that the person is born alive, constitutes the starting point of his personality. As soon as the newborn is separated from the mother’s body, it acquires legal capacity (or capacity to hold rights and assume obligations), even if it breathes only for a second and regardless of whether the newborn was born capable of surviving or not. B. But, according to a rule of law (Art. 36 CC), the as yet unborn child, the embryo (nasciturus), if born alive, is considered born at the time of conception as far as the rights that accrued during gestation are concerned.1 The practical significance of this rule may be seen mainly in matters of inheritance.2 Example: A, a married man without children, died suddenly of cardiac arrest. According to the law (Arts. 1814 and 1820 CC), ½ of his inheritance goes to his wife and the other ½ to his parents and siblings.3 If A, who has no children, leaves his wife pregnant at the time of his death, the distribution of his inheritance can 1

Should the child be stillborn, Article 36 of the Greek Civil Code does not apply. Article 36 equally applies to other rights (other than the rights to succession), e.g. claim for damages caused to the embryo (nasciturus) during the mother’s pregnancy. See A. Gazis, General Principles of Civil Law, Vol. B1, 1973, p. 6; I. Karakatsanis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 36, No 7; N. Papantoniou, General Principles of Civil Law, 3d ed., 1983, p. 98; I. Spyridakis, General Principles (According to the Civil Code), 1987, p. 184; K. Simantiras, General Principles of Civil Law, 4th ed., 1988, p. 259; D. Papasteriou, General Principles of Civil Law, Vol. I/b, 1998, p. 30; Ap. Georgiadis, General Principles of Civil Law, 3d ed., 2002, p. 116. 3 See below Law of Succession, Part Two, Ch. B. 2

40


only take place after the birth of the child. In case the child is stillborn, ½ of A’s inheritance goes to his wife and the other ½ to his parents and siblings. In case the child is born alive, the latter is considered as if he had been alive at the time of the father’s death, in which case he has the same rights to his father’s inheritance as he would have had if he had been alive at the time of the father’s death. Consequently, ¼ of the father’s inheritance will go to the wife and ¾ to the child (Arts. 1813 and 1820 CC). A’s parents and siblings will have no part in the inheritance. Even if A’s child is born alive but dies shortly after, Article 36 of the Greek Civil Code is applicable in which case the following will happen: initially the wife of A will inherit ¼ of his inheritance and the child ¾. However, after the child’s death, the mother will acquire the child’s share (¾) to the exclusion of other relatives (Art. 1814 CC).

By establishing Article 36, the Greek lawmaker makes the provision that, after a person’s death, his inheritance goes to the members of his own family and not to his other relatives, if a child of his which at the time of his death was an embryo (nasciturus) was born alive. Without the provision of Article 36, the child that would have been born, even if such birth had taken place only a few seconds after the father’s own death, would have had no rights to the paternal inheritance. 2. End of the Natural Person The natural person ends with the person’s death (Art. 35 CC). Medical science determines with precision the exact time of death. 3. Evidence Regarding the Beginning and End of the Natural Person A. General Anyone claiming, for purposes of exercising a certain right, that a natural person died or lived at a certain point in time or that such person was survived by someone else, is obliged to adduce evidence (Art. 37 CC). The simplest way to prove the birth or death of a person is to produce the corresponding certificate which is generally based on a medical report.4

4

See Art. 32 of L. 344/1976, “On Certificates of Registry,” as modified by Art. 26, para. 9 of L. 2130/1993. In the event a person died under circumstances making the issuance of a medical certificate an impossibility, such as if one was killed during a battle, the death may be certified by eye witnesses who saw his dead body. On the basis of such testimonies, it is then possible for the death certificate to be issued (see Art. 38, para. 1 of L. 344/1976).


41

Example: A goes to B, tenant of his father’s apartment, and asks him to pay him the rent due to his father because his father died and A is now the legal heir of the deceased. A, who in order to exercise his right (the right to collect rent) makes the claim that his father died, is under the obligation to provide evidence to this effect.

B. Legal Presumptions a. Presumption of death If the death of a person whose body was not recovered is certain but happened under circumstances that preclude the existence of eye witnesses (e.g. plane crash), the death of that person is deemed to have been proved (Art. 39 CC). In this case the presumption of death is established and it is possible for a death certificate to be obtained on the basis of the report of the authorities.5 In case a person’s death is not certain but very probable, action may be taken to declare such person as missing (‘in absentia’) by a court ruling.6 b. Presumption of simultaneous death If more persons died and it is not possible to establish the order of survival, it is presumed that they all died simultaneously (Art. 38 CC.), i.e. the presumption of simultaneous death is established. The presumption of simultaneous death is rebuttable, i.e. it can be overturned by the person whose interests are endangered by its application. However, the party whose interests are endangered can only overturn the presumption when proving that one of the deceased died before or after the others. Example: A and B, husband and wife, who had no children died aboard a ship during a shipwreck. The closest relative of A is his brother K, and the closest relatives of B are her parents. According to the presumption of simultaneous death, since A and B died simultaneously, each will be succeeded by his closest relatives. Consequently, according to Article 1814 of the Greek Civil Code, K will inherit his brother A and the parents of B will inherit their daughter. However, if K, wishing to inherit part of B’s share as well, claims that A died after B − in which case A had already inherited B’s ½ share at the time of her death (according to the provisions of Article 1820 of the Greek Civil Code stating that, in the 5 6

See Art. 38, para. 3 of L. 344/1976 “On Certificates of Registry.” See below Ch. B, I, 4.

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absence of children, the surviving spouse inherits ½ of the deceased spouse’s share) − then K has to prove the fact that A survived B. In the event that K is able to prove his claim (e.g. with eyewitnesses) that B died before A, the presumption of simultaneous death is overturned and K does have the right to also inherit B’s ½ share because his brother A had a right to it at the time of his death, since the husband survived his wife even for a short while. In this case B’s parents will only inherit ½ of their daughter’s share.

4. Missing Person (absentia) A. General There are cases when the death of a person, although not certain, is nevertheless very probable. In such cases the uncertainty created may be detrimental to the interest of some individuals. Thus, the Greek Civil Code has a provision according to which, following a certain process, one may demand from the court to declare the missing person ‘an absentee’ (Arts. 4050 CC). B. Conditions for Declaring a Person as Missing (an absentee) In order for a person to be declared as missing, ‘an absentee’, his death must be very probable. The death of a person is very probable if one of the following happens: -

-

if he disappeared while his life was in danger (e.g. during war or a shipwreck) and at least one year has elapsed from that time, i.e. the time of his exposure to the mortal danger, or, in the case of prolonged danger (e.g. battle), since its last instance (Art. 41 CC); if the person has been gone for a long time and there is no news from him. In this case at least five years must have elapsed since the last piece of news from him was dispatched, not since the time it was received (Art. 41 CC).

C. The Process for Declaring a Person as Missing Anyone whose rights depend on a person’s death, e.g. spouse or children, has standing to submit a petition to the court for such person to be declared as missing (‘in absentia’). Competent court to rule on the petition is the One-member Court of First Instance of the last domicile or residence


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of the missing person or, if such does not exist, the court of the capital of the state.7 The procedure for judicial declaration of a person as missing follows the rules established in the Greek Civil Code (Arts. 42-47 CC) and the Code of Civil Procedure (Art. 783 et seq. CCPr.). An absentee is declared a missing person by a court ruling. D. Consequences of Declaring a Person as Missing The publication in the press of a summary of the irreversible court ruling8 declaring a person as missing (Art. 47 in conjunction with Art. 43, 1 CC) establishes the legal presumption of death for the missing person which is effective against all (erga omnes). This implies that henceforth the rights depending on the absentee’s death may be exercised as if the death had been proven, i.e. the rights to succession or the cessation of the parental care exercised by the absentee. The results of the judicial declaration of a person as missing begin at the time determined by the court as the beginning of absentia (Art. 48 CC). Exceptionally, the only result that does not automatically follow from the court ruling declaring a person as missing is the dissolution of marriage. Instead, such ruling constitutes grounds for divorce (Art. 1440 CC). Example: A is declared a missing person because there is no news from him for ten years. With the court ruling the process of succession begins, i.e. his assets are distributed to his heirs, but his marriage is not automatically dissolved. His wife B, wishing to remarry, will have to file for divorce on the grounds of the declaration of absentia. She can remarry only after the issuance of the divorce.

The legal presumption of death for the absentee may be overturned by an irreversible court ruling lifting the declaration of absentia (Art. 46 CC).9

7

The court rules ex parte, i.e. according to the voluntary jurisdiction reserved for noncontentious matters (see Arts. 739, 740, 1 CC, and 783 et seq. CCPr.). 8 According to Art. 785, para. 1 of the Code of Civil Procedure, for the judicial declaration of a person as missing to be valid it is not sufficient for the court ruling to be final non appealable (either because an appeal was filed but rejected or because no appeal was timely filed), as stated in the Article 47 of the Greek Civil Code, but also irreversible, i.e. such that cannot be overturned by any legal remedy. 9 The court decision lifting the declaration of absentia, just as the one establishing it, is published in the press after becoming irreversible (Art. 47 in conjunction with Art. 43, 1 CC, and Art. 785, 1 CCPr.).

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E. Reappearance of the Missing Person In the event that after the declaration of a person as missing he reappears, he is entitled to recover his assets from those who had inherited him following the relevant procedure (Articles 46, 49, 50, and 1883 of the Greek Civil Code). As far as the marriage of the person declared an absentee is concerned, if it had not been dissolved through divorce, it continues to exist.10 If it had been dissolved through divorce, the marriage is not automatically reestablished. In the event that the former spouses wish to continue to be married, they need to remarry. II. PROPERTIES AND STATUS OF THE NATURAL PERSON 1. Name The name, which consists of first and last name, serves as a means of distinction for purposes of legal individualization of the person. The first name is determined by the parent who has the care of the child. Because normally the parental care of a child belongs to both parents, they will jointly select the child’s first name. In the event of disagreement, the court will decide (Art. 1512 CC). The last name11 is acquired in one of the following ways: A. Children born during the marriage of their parents take the last name the parents have determined for them by means of a joint, irrevocable declaration, i.e. a declaration that cannot be revoked, made prior to the marriage (Article 1505, 1 CC). Thus determined, the last name, which is the same for all children born of the same parents, may be one of two: the last name of either parent or a combination of both last names (Art. 1505, 2 CC). In case the parents do not determine the last name they wish for their children to have, the children take the last name of their father (Art. 1505, 3 CC). B. Children born out of wedlock shall assume the last name of their mother (Art. 1506, 1 CC). If a child born out of wedlock was subsequently acknowledged by the father as his own, then his parents, either both or just

10 11

See below Family Law, Part One, Ch. E, II, 1, B, a, aa. See below Family Law, Part Three, Ch. A.


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one of them, may add the paternal last name to the child’s last name by making a declaration to the registry of civil status (Art. 1506, 3 CC). C. The adopted child takes the last name of the adoptive parent (Art. 1563 CC). D. The abandoned children shall assume their last name by way of an administrative act. The registrar of civil status who issues the birth certificate of a child shall determine his last name as well as the names of his father and mother.12 E. Finally, it needs to be emphasized that marriage does not change the wife’s last name (Art. 1388, 1 CC). Only in their social relations each spouse may, upon the other spouse’s consent, use the last name of the latter or add it to his own (Art. 1388, 2 CC). 2. Gender Gender is also a means of determining a person’s identity. The Greek Constitution declares the equality of the two sexes (Art. 4, 2). The Greek Civil Code was appropriately modified by L. 1329/1983 so as to reflect the constitutional principle of the equality of sexes. 3. Citizenship Citizenship is the special legal relationship one has with a particular country. Matters of citizenship are regulated by the Code of Greek Citizenship.13 4. Age Reaching a certain age is considered by law a criterion of a person’s mental maturity which determines the capacity of the person to conclude legal transactions or to be held accountable for civil wrongdoing (delictual liability), as well as several other special capacities, such as the capacity to conclude an employment contract as an employee (Art. 136 CC), the capacity to adopt (Arts. 1543, 1582 CC), or the capacity to consent to an adoption (Art. 1555 CC).

12

See Art. 24, para. 4 of L. 344/1976 “On Certificates of Registry.” Matters of citizenship are regulated by L. 3284/2004 which constitutes the new Code of Greek Citizenship in Hellas. 13

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5. Health Physical as well as mental disabilities or mental disturbances may influence the capacity of a person to conclude legal transactions14 or to be held accountable for tort/delict.15 6. Religion The Greek Constitution (Art. 13) establishes the principle of religious freedom which consists in the freedom of religious consciousness and the freedom of worship. Before the articles of the Greek Civil Code regulating marriage were modified by L. 1250/1982 introducing civil marriage,16 religion influenced a good number of matters of family law. Today the influence of religion is very limited. For example, concerning marriage between persons belonging to different Christian denominations, or marriage between persons embracing different religions, the religious ceremony performed conforms to the requirements of each Christian denomination, or of each of the religions of the future spouses, assuming that the other (than the Greek Orthodox) Christian denomination or the other (than the Christian) religion are recognized in Greece (Art. 1371 CC).17 ∗

7. Honor Honor is the social esteem and dignity due to every person and it is protected by special provisions of the Greek Civil Code (e.g. Art. 57 which refers to the right to one’s personality, Art. 920 which refers to communicated defamatory statements against a person, etc.).

14

See below Part Three, Ch. C, II, 4. See below Part Three, Ch. C, II, 2. 16 The marriage can be performed either by way of a declaration of agreement of the future spouses, made simultaneously, before the Mayor or the President of the Community of the place where the marriage takes place (civil marriage), or by way of a religious ceremony performed by a priest of the Greek Orthodox Church or a minister of any other Christian denomination, or of any other religion known in Greece (religious marriage). See Art. 1367, 1 of the Greek Civil Code. See also below Family Law, Part One, Ch. B, II. The religion of the Greeks is Christian and their Christian denomination is Greek Orthodox (Translator’s note). 17 Regarding the meaning of the term ‘recognized,’ see below Family Law, Part One, Ch. B, II, 1, footn. 1. 15

∗


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8. Kinship The term kinship means that two or more persons are related to each other.18 There are two kinds of kinship: by blood, i.e. consanguinity (Art. 1461 CC), and by marriage alliance, i.e. affinity (Art. 1462 CC). To be blood relatives means that two persons are either issued the one from the other (e.g. parent and child), or that they are both issued from the same ascendant (e.g. siblings). To be related by marriage alliance means that the blood relatives of the one spouse are related to the blood relatives of the other spouse (e.g. if A and B are husband and wife and B has parents and siblings, the latter are relatives by marriage alliance to A). 9. Domicile A. The Concept and Meaning of Domicile Domicile is the place where a person has established himself with the intention of making it the permanent center of his life and relationships (Art. 51, 1 CC). A person’s domicile is important in many matters of civil law. For example, in legal transactions the domicile determines the place of performance (Arts. 320-321 CC). Example: If A has to give B the 1,000 euros he owes him and they have not agreed as to where the debt will be paid, according to the law, A (the debtor) must make the payment in the place of the domicile of B (the creditor).

The domicile is also important for matters of civil procedure. For example, the competence of the court, as far as locus is concerned, is determined by the domicile of the defendant regarding actions brought against him (Art. 22 CCPr.). Example: If A, whose domicile is in Athens, does not pay the 15,000 euros he owes to B, whose domicile is in Lamia, B (the plaintiff) will bring action against A (the defendant) before the First Instance Court of Athens, i.e. the court located in the area where the defendant has his domicile.

18

See below Family Law, Part Two, Ch. B.

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B. Distinctions There are two types of domicile: voluntary and legal or obligatory. a. Voluntary domicile Voluntary domicile is the domicile a person chooses freely for himself. For a person to acquire voluntary domicile the following are required: aa. The person needs to actually establish himself in a certain place. bb. The person must indeed have the intention of making this locale the permanent center of his life and relationships. b. Legal (obligatory) domicile Legal or obligatory domicile is the one determined by law. Persons having such domicile are: aa. Those appointed to a public service position with life tenure; they shall have their domicile in the place where their services are supposed to be rendered (Art. 54 CC). bb. The minors under parental care; they shall have for domicile the domicile of their parents, or of the parent who alone exercises the parental care (Art. 56, 1 CC). cc. The minors under tutelage; they shall have for domicile the domicile of their tutor (Art. 56, 2 CC). dd. Those placed under privative judicial assistance in whole;19 they shall have for domicile the domicile of their judicial assistant (Art. 56, 2 CC). C. Special Domicile In the Greek civil law every person can have only one domicile. Exceptionally, in matters related to the exercise of one’s profession, the place where one practices his profession is considered as special domicile (Art. 51, 3 CC). Example: Merchant A, who has stores in Athens, Thessaloniki, and Patras, has his permanent dwelling in Athens where he lives together with his family. His domicile is in Athens, whereas in Thessaloniki and Patras he has special domicile.

19

See below Part Three, Ch. C, II, 3.


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D. The Difference between Domicile and Residence The difference between domicile and residence consists in this: in the residence one dwells only temporarily and has no intention of establishing himself permanently there. ∗

Example: During the summer, A, whose domicile is in Athens, goes on vacation to the island of Hydra for twenty days. For those twenty days Hydra becomes his place of residence.

III. THE PROTECTION OF PERSONS20 1. Protection of the Personality A. The Concept of Right to One’s Personality The law recognizes and protects every man’s right to his personality. The right to one’s personality refers to the right to all those things which are indispensable (sine qua non) for the existence of a person, such as life, health, free development of the personality, honor, and the private area of the personality. Outside the general provision of Article 57 of the Greek Civil Code which protects the personality as a whole, there are also the special provisions of Articles 58 and 59 which provide for the protection of the right to one’s name and the products of one’s intellect. Such rights are established as separate rights due to the great practical significance of the issues connected therewith. However, before referring to the protection provided by Article 57 of the Greek Civil Code, we need to emphasize that the right to one’s personality is also protected by the Greek Constitution. Articles 2 para. 1, 5 para. 1, 7 para. 2, 9 paras. 1 & 2, and Article 19 of the Greek Constitution make the protection of the value of man a primordial duty of the state, The two ingredients present in the domicile are corpus, one’s physical residence in a given place, and animus, the intent of having that place as one’s principal and permanent establishment (Translator’s note). 20 Though the stipulations of Arts. 57-60 of the Greek Civil Code referring to the protection of persons are located in the chapter dealing with natural persons, it is accepted that by analogy they also apply to the protection of legal persons. See Gazis, op. cit., Vol. B2, 1974, p. 62; Α. Κritikos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 62, No 2; Papantoniou, op. cit., p. 143; Spyridakis, op. cit., p. 320; Simantiras, op. cit., p. 313; Papasteriou, op. cit., p. 122; Ap. Georgiadis, General Principles of Civil Law, op. cit., p. 152 et seq. ∗

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protect the free development of one’s personality, secure one’s private and public life, the privacy of one’s communications and the right to one’s physical and psychological well being. The general provision of Article 57 of the Greek Civil Code allows for the protection of the personality in the event of its unlawful offense by another. This, for example, happens in the case of slander, the use – without permission – of a person’s photographs for commercial purposes, the circulation of printed matter offending the private life of a person, etc. Special protection is provided regarding offenses directed against the memory of the deceased person. B. The Content of the Protection In case of unlawful offense of the personality, the person has the following rights: a. The right to demand the cessation of the offense (Art. 57, 1, 1 CC). This means that the person has the right to demand for the state of affairs which existed prior to the offense to be reinstated. For example, in the event of circulation of printed matter offending the private life of a person, the claim is for such printed matter to be removed from circulation. b. The right to demand the non-recurrence of the offense in the future (Art. 57, 1, 1 CC). This means that one may demand for the offense not to be repeated in the future. For example, it may be demanded that no such printed matter offending the private life of the person be published again. c. The right to raise a claim for damages (Art. 57, 2 CC). Damages may be claimed only when the defendant was at fault and has caused the petitioner material damage.21 Examples: − In the case of circulation of printed matter offending the private life of a person, what constitutes damage is the diminution of that person’s professional credibility resulting from the statements contained in the printed matter. − In the case of slander or defamation against a medical doctor, his damage consists in the lessening of his income due to the offense. 21

The reference to material damage is made in order to distinguish it from ‘moral damage.’ Material damage is every type of damage which has the consequence of pecuniary loss for the petitioner. ‘Moral damage’ is the damage which cannot be assessed in monetary terms. See M. Stathopoulos, General Law of Obligations, 3d ed., 1998, p. 165 et seq.; Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 299, No 1; Ap. Georgiadis, Law of Obligations, General Part, 1999, p. 133 et seq.


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d. The right to raise a claim for moral damage (Art. 59 CC). This means that one has a claim for damage which is not material but is due to the mental anguish the offended person experienced following an offense against his personality. Examples: − In the case of circulation of printed matter offending the private life of a person, moral damage is the chagrin the person mentioned in the publication experiences because his social standing is undermined. − In case of slander or defamation of a person, moral damage is the chagrin such person experiences due to the slander or the defamation.

Reparations for moral damage may consist in: aa. monetary compensation which, however, is not considered as compensation for damages, because emotional suffering cannot be assessed in monetary terms; bb. publication in the press of a statement restoring the truth regarding the previously published inaccuracies; cc. whatever is dictated by the circumstances, e.g. a public apology, the return or destruction of the offensive documents, photos, etc. C. Protection of the Memory of the Deceased In case of offense against the memory of a deceased person, the right to demand the cessation of the offense, its non-recurrence in the future, compensation for prejudice to property, as well as moral damage belongs to the spouse, certain close relatives, and the testamentary heirs (Art. 57, 1, 2 CC). 2. Protection of the Name A. The Concept of Right to a Name A person’s right to a name includes the right to one’s first and last name.22 The law even protects the pseudonym (assumed name) if its use is such that the person is recognized by it. The offense against one’s name may manifest itself in the following ways: a. If another challenges the use of one’s name. For example, when the person is called by another name, or when a plaque carrying a person’s 22

For the way the last name may be acquired, see above Ch. B, II, 1.

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name is removed and the claim is made that said name does not belong to the person using it. b. If one unlawfully uses another person’s name, e.g. A uses the name of B. At this point it should be noted that it is not unlawful for one to use another’s name if one has the right to do so, e.g. when both persons happen to have the same name. B. The Content of the Protection The person offended in his right to a name has the following claims: a. The right to demand the cessation of the offense (Art. 58, 1 CC). Examples: − If a plaque carrying one’s name was removed, one has the right to demand that the plaque be put back in its place. − In the event that A presents himself under the name of B, the latter may demand that A stop doing so.

b. The right to demand the non-recurrence of the offense in the future (Art. 58, 1 CC). Examples: − One may demand the non-recurrence of the removal of the plaque in the future. − B may demand the non-recurrence of the use of his name by A in the future.

c. The right to demand compensation for damages (Art. 58, 2 CC). This means that the person offended in his name may ask to be compensated for the damages he suffered on account of the offense. Example: In the case of the removal of the plaque of a medical doctor, the material damage sustained by him is the loss of income, due to the fact that he missed visits from patients who were led to believe that the medical doctor in question no longer practiced.

d. The right to demand reparations for moral damage (Art. 59 CC). This means that the person who was offended in his name may ask to receive reparations for the emotional distress he suffered because his name was offended.23

23

For the way in which reparations for ‘moral damage’ may be made, see above Ch. B, III, 1, B, d.


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3. Protection of the Products of One’s Intellect A. The Concept of Right to the Products of One’s Intellect 24 Right to the products of one’s intellect is the exclusive right of the creator of the intellectual work over his output. Products of one’s intellect are the work of writers, composers, painters, inventors, etc. These intangible things constitute in some way man’s possession and property and, according to the kind of output involved, the right to such possessions is called right to intellectual property or to industrial property. More specifically: Intellectual property is the right granted to the creator of a piece of intellectual work by the legal order. The product protected is the specific intellectual creation (text, music, image).25 Industrial property is the sum total of intangible things pertaining to transactions, e.g. patent, distinctive sign, trademark.26 B. The Content of the Protection In case a person is being offended in one of the products of his intellect (e.g. a book is reprinted without the author’s permission, one’s book or musical composition is appropriated by another), according to the Greek Civil Code (Art. 60), he has the following rights: a. The right to demand the cessation of the offense. For example, the author may demand that the book reprinted without his permission be taken out of circulation, or that the person who appropriates for himself the author’s book or musical composition stop doing so. b. The right to demand the non-recurrence of the offense in the future. For example, it may be demanded that further reprinting of the author’s book – published without his permission – be prohibited or that the appropriation of the author’s own work (book or musical composition) by another be prohibited in the future. 24

The right to the products of one’s intellect is a mixed right (see below Part Two, Ch. A, II, 1). 25 For more details, see G. Koumantos, Intellectual Property, 8th ed., 2002, p. 1 et seq.; see also D. Kallinikou, Intellectual Property and the Rights of Kin, 2000, p. 19. 26 For more details, see Th. Liakopoulos, Industrial Property, 5th ed., 2000; N. Rokas, Industrial Property, 2004.

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c. The right to demand compensation for damages, e.g. the damage that the author or the musician suffered by being deprived of the income he would have otherwise derived from his intellectual work. Today the protection offered by the Greek Civil Code for the products of one’s intellect is limited because of the existence of many special statutes. However, these special statutes do not always contain a complete system of civil sanctions in case of offense of the diverse rights to the products of one’s intellect. Only the law on intellectual property27 which is in effect today contains a complete system of such sanctions. Consequently, on other matters the sanctions need to be based on more general provisions of the law and mainly on Article 60 of the Greek Civil Code.28 4. Protection of the Individual from the Gathering and Processing of Personal Data In our era where the general rules for the protection of the personality are not sufficient to also protect a person from computer technology, it is imperative to have special rules, substantive and procedural, in order to protect the individual from the practically unlimited accumulation and correlation of information on all aspects of his life. The reason for this is that the dangers from the unlimited collection and correlation of information are infinitely more immediate and different in nature for the individual and his private life than the usual offenses against the personality.29 It is for this purpose that L. 2472/1997 was passed in order to protect the individual from data processing of a personal nature.30 This law through which Greek legislation was aligned with European Community Directive 95/46 of the European Parliament and of the Council of October 24, 1995 ‘On the protection of personal data and on the free

27

L. 2121/1993 entitled, “Intellectual Property, Rights of Kin, and Cultural Issues.” See Koumantos, op. cit., p. 60. 29 See the Introductory Report of L. 2472/1997, No A2, in KNoB (1997), p. 501; see also M. Avgoustianakis, “Protection of the Individual from Processing of Personal Data,” in The Rights of Man, issue No 11/2001, p. 673 et seq., especially p. 684. 30 With regard to L. 2472/1997, see M. Stathopoulos, “The Use of Personal Data and the Conflict between two Freedoms: of Their Subjects and of Those in Possession of Such Data,” in NoB 48 (2000), p. 1 et seq.; P. Donos – L. Mitrou – F. Mittleton – E. Papakonstantinou, The Authority of Protection of Personal Data and the Increase of the Protection of Rights, 2002; I. Igglezakis, Sensitive Personal Data, 2003. 28


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movement of such data’ constitutes a concretization of the broader imperative of protection of the personality.31 Law 2472/1997 was certainly indispensable because through it one can now protect in a special way contemporary aspects of the right to personality stemming from a rapidly developing technology. Of course, it cannot be claimed that this law will be sufficient in the future, given the fact that the fast development of new technologies will keep creating new problems. At this point it is important to emphasize that the most recent revision of our Constitution (2001) included three important Articles constituting one entity which is immediately related to the protection of personal data. They are Articles 5A, 9A, and 101A. Article 5A explicitly stipulates the general and unlimited right to information, i.e. the right for every citizen to have access to the sources of information, limited only by considerations of national security and defense as well as the respect of the rights of third parties.32 Article 9A introduces at the constitutional level the prohibition of gathering and processing of personal data, i.e. it safeguards the protection of the personality against the right to information established by Article 5A.33 Finally, it should be mentioned that the gathering and processing of personal data should be conducted under the strict conditions dictated by the rules of International Law, the European Community Law, and the institutional guarantee of an independent Authority constituted according to Article 101A.34 The Hellenic Data Protection Authority, which was constitutionally secured after the 2001 revision of the Constitution,35 constitutes a public authority whose mission is to oversee the application of L. 2472/1997 and other regulations pertaining to the protection of the individual from the processing of personal data, as well as to exercise the responsibilities with which it is entrusted in every particular case (Art. 15 of L. 2472/1997).36 31

See Introductory Report of L. 2472/1997, No A3-4, op. cit. See the Proposal of the General Spokesman for the Majority Ev. Venizelos in the 7th Greek Revisory Parliament, 1st Period, Session A, p. 17. 33 See S. Koutsoumbinas, “Independent Authorities and Individual Rights,” in The Rights of Man, No 10/2001, p. 376 et seq. 34 See the Proposal of the General Spokesman, op. cit., p. 17. 35 See Art. 101 A of the Greek Constitution. 36 Regarding the Hellenic Data Protection Authority, see L. Mitrou, The Authority of Protection of Personal Data, 1999. 32

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More specifically, the Hellenic Data Protection Authority aims at securing: -

37

the respect and protection of the rights of the individual and of the democratic regime; the upgrading of the protection of the rights of individuals as a value in itself in the framework of a state governed by the rule of law; the promotion of mutual cooperation between the individual and the administration as well as the individual and private enterprises; the exercise of constant preventive, suppressive, and structuring action for the protection of the individual’s personal data.37

See Art. 1 of decis. No 6/1997 entitled, “Regulation of the Functioning of the Hellenic Data Protection Authority.”

CHAPTER C LEGAL PERSONS I. THE CONCEPT Legal persons are unions of persons pursuing a certain goal or aggregates of property assets appointed to serve a given purpose and having acquired an independent personality (legal personality) by complying with the rules of law. This means that the legal persons are the subjects of rights and obligations. The law recognizes legal capacity to the legal persons, thus equating them with natural persons. What we mean by saying that the legal person has legal capacity is that the subject of rights and obligations is the legal entity and not the individuals constituting or managing it. However, the legal capacity of the legal person does not extend to activities or legal relations that presuppose the qualities of a natural person (Art. 62 CC), e.g. the legal person can neither be adopted nor have heirs. II. CATEGORIES There are two basic categories of legal persons: legal persons of public law and legal persons of private law, following the relevant distinction of domestic law in public and private. But apart from those two categories, there is a third one: legal persons of mixed or dual nature. 1. Legal Persons of Public Law Legal persons of public law are the legal persons instituted by an act of the state (mainly a statute) for the purpose of promoting public policy. The legal persons of public law are basically regulated by the laws that constitute them. Legal persons of public law are, for example, the municipalities, the

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communities, the universities, the Social Insurance Organization (IKA), the Agricultural Insurance Organization (ΟGΑ), etc. ∗

2. Legal Persons of Private Law The legal persons of private law are constituted by persons, devoted to private purposes, and regulated by private law. The legal persons of private law are further divided into legal persons of civil law and legal persons of commercial law. Legal persons of civil law are the association, the foundation, the fund raising committee, and the civil company that has acquired legal personality. Legal persons of commercial law1 are the general partnership (ΟΕ), the limited partnership (ΕΕ), the close corporation (ΕPΕ), often called ‘limited liability company,’ the corporation (SA), and the cooperative. ∗∗

3. Legal Persons of Mixed or Dual Nature To this category belong the legal persons which, although organized as legal persons of private law, are established by the state in order to serve the public interest. In essence they are legal persons which in addition to their private activity, either have been entrusted with management which promotes a public purpose, or constitute in reality public enterprises. Examples of the former are the Bank of Greece which has the privilege of issuing bank notes in euros, possessing and administering the official foreign currency reserve of the country, and exercising preventive control of credit institutions, and the Agricultural Bank, entrusted with the supervision and control of agricultural cooperatives. Examples of the latter are the

The Greek spelling of the acronym IKA, is also IKA and it stands for ‘Ίδρυµα Κοινωνικών Ασφαλίσεων.’ The Greek spelling of the acronym OGA, is ΟΓΑ and it stands for ‘Οργανισµός Γεωργικών Ασφαλίσεων’ (Translator’s note). 1 See specialized studies on commercial law such as A. Tsirintanis, Elements of Commercial Law, issue b, 6th ed., 1964; N. Rokas, Commercial Companies, 4th ed., 1996; A. Sinanioti – Maroudi, Commercial Law, Vol. II, Commercial Companies, 2004. The Greek spelling of the acronym OE, is also OE and it stands for ‘οµόρρυθµη εταιρεία’; of the acronym EE, is also EE and it stands for ‘ετερόρρυθµη εταιρεία’; of the acronym EPE (i.e. Ltd.), is ΕΠΕ and it stands for ‘εταιρεία περιορισµένης ευθύνης’; of the acronym SA, is AE and it stands for ‘ανώνυµη εταιρεία’ (Translator’s note). ∗

∗∗


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public utilities companies of electricity (DEH), telecommunications (ΟΤΕ), and radio-television (ΕRT). Because these legal persons are regulated both by the rules of private and public law, they are called legal persons of mixed or dual nature. ∗

III. LEGAL PERSONS OF CIVIL LAW 1. General Rules Before referring to each and every type of legal person of private law, we will mention the general rules of the Greek Civil Code governing them. A. Formation of the Legal Person For the formation of every legal person a constitutive or establishing deed2 is required by law (Art. 63 CC), i.e. an instrument expressing the intent of the individuals to set up the specific legal person, as well as a charter or by-laws3 containing the terms of its operation and administration. For both the constitutive or establishing instrument, and the charter or by-laws a written document is required (Art. 63 CC). B. Capacity of the Legal Person a. Legal capacity:4 the law recognizes the legal person as having legal capacity (capacity to be the subject of rights and duties) thus equating it with the natural person. However, this capacity of the legal person does not extend to legal relationships presupposing the qualities of a natural person (Art. 62 CC), i.e. legal persons can neither be adopted nor have heirs. b. Capacity for concluding juridical acts:5 the legal person, other than having legal capacity, also has its own volition, expressed through the The Greek spelling of the acronym DEH, is ΔΕΗ and it stands for ‘Δηµόσια Επιχείρηση Ηλεκτρισµού’, of the acronym OTE, is also OTE and it stands for ‘Οργανισµός Τηλεπικοινωνιών Ελλάδος,’ and of the acronym ERT, is ΕΡΤ standing for ‘Ελληνική Ραδιοφωνία και Τηλεόραση’ (Translator’s note). 2 A constitutive deed is necessary for the formation of an association or a fund raising committee, whereas an establishing deed is required for the formation of a foundation. See below Ch. C, IV, (2, A), V (2, A), VI (2, A). 3 A charter is required for the association, whereas by-laws are required for the foundation and the fund raising committee. See below Ch. C, IV (2, B), V (2, B), VI (2, B). 4 For the legal capacity, see above Ch. A, I. 5 See below Part Three, Ch. C, II, 1. ∗

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persons who administer it. Consequently, the legal person has the capacity to conclude juridical acts through the persons who administer it. c. Capacity for delictual liability:6 the legal person has liability for civil wrongdoing, i.e. it is responsible for the unlawful acts of its representing organs. C. Title and Seat of the Legal Person Just as the natural person has a name, so does the legal person. The name of the legal person is called title. The seat of the legal person is equivalent to the domicile of the natural person. The seat of a legal person is in the place where its administration is located (Art. 64 CC). D. Administration of the Legal Person The administration of the legal person consists of one or more persons. On the one hand it carries out the business of the legal person and on the other hand it represents it before the courts or out of court. As the organ of the legal person, it concludes all the juridical acts with third parties. In case of collegial administration, i.e. if the administration is composed of many persons, unless otherwise provided in the constitutive or establishing deed or in the charter or by-laws, an absolute majority of those present is required in order for a decision to be reached, i.e. a majority of 50% plus 1 (Art. 65, 2 CC). E. Juridical Acts of the Legal Person As was mentioned earlier, the legal person has the capacity to conclude juridical acts. The administration of the legal person is the organ through which the volition of the legal entity is expressed.7 Consequently, the juridical acts entered into by the persons entrusted with the administration of the legal entity, provided that they have acted within the bounds of their authority, are binding for the legal entity, i.e. they create for it rights and obligations which are directly binding (Art. 70 CC). In order for the legal person to be liable for the juridical acts concluded by its representing organs, the latter need to have carried them out in their 6

See below Part Three, Ch. C, II, 2 and Law of Obligations, Part Two, Ch. D, III, 2. Not only the legal capacity of the legal person is limited, but also its capacity for juridical acts, because such capacity does not extend to the legal relations requiring the attributes of a natural person. For example, the legal person cannot adopt or exercise parental care. 7


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capacity as the organs of the legal entity, i.e. acting in its name and on its behalf, and within the bounds of their powers, as determined in the constitutive or establishing deed of the legal person or in the charter or bylaws. The same holds as regards third parties (Art. 68, 1 CC). Examples:− In order for a legal person, such as, for example, the athletic association Sigma, to buy an apartment from A for the purpose of housing its offices, the relevant legal transaction will be concluded between A and the Board of Directors of the Sigma association, which is the organ administering the affairs of the legal person. However, the rights and obligations stemming from this transaction will directly affect the legal person of the Sigma association and not the particular individuals constituting its Board of Directors. Thus, if for example the payment is not made (i.e. the payment agreed upon for the purchase of the apartment), A, the seller, will take action against the legal person, i.e. the Sigma association, to force it to make the payment; he will not take action against the individual members of the Board who concluded the agreement for the purchase of the real estate. − In case the legal person hires an individual, the employment contract will be concluded between the legal representative of the legal entity, usually the Board of Directors, and the employee. But if the Board of Directors does not pay the employee’s wages, the latter, in order to recover his wages, will sue the legal person and not the Board of Directors.

F. Liability of the Legal Person for the Unlawful Acts of Its Representing Organs. The legal person is liable for the unlawful acts or omissions of its representing organs under the following conditions: a. The act or omission of the representative organs of the legal person must give rise to liability for damages. b. The act or omission must have been performed by the organ representing the legal person. For the association, for example, such organs are those whose position is outlined and determined in the constitutive deed itself or in the charter. c. The act or omission of the above mentioned organ must have taken place in the course of the performance of the duties entrusted to it (Art. 71, 1 CC).

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Naturally, in addition to the legal person, liable for the above jointly and severally (in solidum) is also the person at fault (Art. 71, 2 CC).8 Example: A legal person, for example the Sigma association, asked A, its legal representative, to arrange for the association to receive some financial assistance. A, after deceiving a rich man, T, to whom he presented the purposes of the Sigma association under an entirely different light, succeeded in securing a substantial donation from him to the association. For A’s act the legal entity represented by A is liable; and so is A as an individual. Consequently, T, upon realizing that he was deceived by A, has a claim for damages against the Sigma association, since A’s act took place during the performance of the duties he was entrusted with by the legal entity; he also has a claim for damages against A himself because, along with the legal entity, the latter is liable in solidum. (This means that each one of them, the Sigma association and A, are liable to pay the entire amount of damages, but that T has the right to receive payment only once.)

G. Protection of the Legal Person Though Articles 57-60 of the Greek Civil Code are in the chapter of protection of natural persons, it is accepted that by analogical application they also apply to the protection of the legal persons.9 Just as the natural person, so is the legal person protected with regard to its name, i.e. its title, as well as its ‘personality’ in general, which includes its good reputation, credibility, and all the other properties of which the personality consists, provided, of course, that these properties are not such that presuppose the existence of a natural person. As long as the legal person is offended in the above properties, it also has the right to claim compensation for moral damage.10 H. End of the Legal Person Two things are important as regards the end of the legal person: dissolution and liquidation. 8

Joint and several liability (in this case passive joint and several liability) exists when, in case there are more debtors of one and the same performance, each of them is obliged to effect the whole performance but the creditor is entitled to demand it only once (Art. 481 CC). See below Law of Obligations, Part One, Ch. B, III. 9 See above Ch. B, III, footn. 20. 10 See I. Karakatsanis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 59, No 13; Papantoniou, op. cit., p. 143; Simantiras, op. cit., p. 313; Ap. Georgiadis, General Principles of Civil Law, op. cit., p. 172.


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a. Dissolution of the legal person The dissolution of the legal person brings about the end of its activity. However, the termination of it, i.e. its disappearance, only comes about with liquidation. The dissolution of the legal person results from certain reasons which are determined in the Greek Civil Code and vary according to the specific type of legal entity.11 b. Liquidation of the legal person Liquidation is the condition into which a legal person lapses ipso jure following its dissolution. During this time the accounts of the legal person are being settled, i.e. its debts verified and, to the extent that it is possible, paid off from the proceeds of the liquidation. As long as the liquidation goes on, the legal entity is considered in existence but only for purposes of liquidation, not for other activities (Art. 72 CC). If neither the law nor the constitutive or establishing deed of the legal person, the charter or by-laws, have determined what is to be done with the assets of the dissolved legal entity (i.e. what is left after the debts are paid off), and it has not been otherwise decided by the appropriate organ of the legal person, they devolve on the state (Art. 77, 1 CC). IV. THE ASSOCIATION 1. The Concept Association is the union of at least twenty persons pursuing a non profit goal (Art. 78 CC). Non profit goals need not be solely ideological, i.e. artistic, intellectual, or philanthropic; they can also be economic. For example, the purpose of the professional associations is to protect and promote the financial and professional interests of their members. Trade unions and employers’ associations constitute a very important kind of professional associations.12 They represent the interests of the employees and the employers respectively.13

11

See below Ch. C, IV 6, V 4, VI 3. L. 1264/1982 regulates matters pertaining to trade unions and L. 1712/1987 matters pertaining to the employers’ associations. 12

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2. Conditions for Its Constitution In order for the union of at least twenty persons pursuing a non profit goal to acquire legal personality, i.e. to be able to hold rights and assume responsibilities, the following are required: A. Constitutive Deed Constitutive deed is the agreement among at least twenty persons to establish an association. This needs to be done in writing (Art. 63 CC) and to be signed by the members who decided to establish the association, i.e. the founding members. B. Charter The charter, which also needs to be in writing, determines the title, seat, purpose of the association, working hours etc. (Art. 80 CC). C. Application to the Court The founders or the temporary administration of the association submit an application to the One-member Court of First Instance of the district in which the association will have its seat in order to start the process of registering the association in the special public register of associations. Attached to the petition are the constitutive deed, a document containing the names of the members of the administration, and the charter dated and signed by the members (Art. 79 CC). D. The Decision of the Court The One-member Court of First Instance must issue a ruling14 accepting the application and ordering on the one hand the publication in the press of a summary of the charter containing its essential parts and on the

13

The trade unions and the employers’ associations have the legal right to negotiate and enter into collective agreements of labor (thus shaping the labor relations), undertake labor struggles (e.g. strikes), be litigants in the process of mediation, arbitration, etc. See Al. Karakatsanis, Collective Labor Law, 3d ed., 1992, p. 48 et seq.; G. Leventis, Collective Labor Law, 1996; P. Agallopoulou, Introduction to Labor Law, 2000, p. 99 et seq.; T. Koniaris, Labor Law in Hellas, 2002, p. 169 et seq. (in English). 14 The court rules ex parte (see Arts. 739, 740 para. 1, and 787 CCPr.).


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other hand the recordation of the association in the public register of associations (Art. 81, 1 CC). The court will issue its decision after verifying that the conditions required by law for the constitution of an association have been complied with and that the purpose of the association is neither unlawful nor immoral, i.e. the court will check the legality of the association. It cannot check its expediency because this is contrary to the Constitutional guarantee of the right to associate.15 E. Registration of the Association in the Public Register of Associations The association must be registered in the special public register of associations kept in the Court of First Instance of the district in which the association will have its seat. The registration in the public register of associations takes place as soon as the court decision becomes final non appealable.16 From the time of registration in the public register of associations, the association acquires legal personality, i.e. it begins to exist as a legal person (Art. 83 CC). 3. Organization and Operation of the Association The necessary organs of the association are the Administration and the Meeting of the Members. A. The Administration of the Association The Administration of the association, which may consist of one or more members (in the case of the latter it is called Board of Directors), is the executive organ of the association which carries out its business and represents it before the courts or out of court.17 Examples: − In case the Sigma association wishes to lease an apartment for office space, the rental agreement (on behalf of the association) will be signed by the Board of Directors or by the President alone, if it is stipulated in the charter that the President may represent the association in such matters (representation out of court). 15

See Art. 12, 1 of the Greek Constitution. A court decision is final non appealable when it is not subject to appeal, either because it was appealed but the appeal was rejected, or because the deadline determined by law for appealing has passed. 17 See Arts. 67, 1 CC and 64 CCPr. 16

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-

In case the Sigma association does not pay the rent to A (the lessor), the latter will bring action against the Sigma association asking for payment. The association will appear in court represented by the Board of Directors or by the President alone, if according to the charter the President has the right to represent the association in such matters (representation before the court).

B. The Meeting of the Members of the Association The Meeting of the Members of the association constitutes the highest organ and is empowered to decide on all matters which do not fall under the competence of other organs. Unless otherwise provided in the charter, it falls within the powers of the Meeting of the Members to elect the Administration, decide on the acceptance or exclusion of a member, approve the balance, decide on the change of the purpose of the association, the amendment of its charter, and the dissolution of the association (Art. 93 CC). Moreover, the Meeting of the Members has the supervision and control of the representing organs of the association and the right to revoke them at any time (Art. 94, 1 CC). The mode of functioning of the Meeting of the Members is stipulated in the charter. C. Other Organs of the Association Provisions for other organs of the association, such as the Audit Committee and the Disciplinary Council, may be found in the charter. 4. Rights and Obligations of the Members of the Association All the members of the association have equal rights and responsibilities (Art. 89, 1 CC). Special rights may be granted or taken away either when the charter so stipulates or with the consent of all the members. Unless otherwise provided in the charter, a member of the association may not be represented and the qualification of being a member may neither be transferred nor devolve through succession (Art. 91 CC). 5. Ceasing to be a Member of the Association The capacity of being a member of the association ceases in the following instances: A. If the member leaves the association (Art. 87 CC).


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B. If the member is expelled in the cases provided for in the charter (such as, for example, for certain misdeeds), and in case of important reason (e.g. serious violation of one’s duties, indecent behavior) decided upon by the Meeting of the Members (Art. 88, 1 CC). C. If the member dies. D. Ipso jure due to several specific reasons mentioned in the charter, e.g. change of profession, change of domicile. E. If the association is dissolved. 6. Dissolution of the Association The association is dissolved in the following instances: A. Ipso jure, i.e. without requiring decision of the Meeting of the Members or Court ruling, in the following instances: a. When it is so stipulated in the charter, e.g. when the time period for which the association has been constituted has expired (Art. 104, 1 CC). b. When the number of the members of the association has fallen below ten (Art. 104, 2 CC). B. With a decision of the Meeting of the Members reached with special quorum and a qualified majority (Art. 103 in conjunction with Art. 99 CC).18 C. With a final non appealable decision of the One-member Court of First Instance of the district where the seat of the association is located,19 following an application submitted by the Administration of the association, or one fifth of its members, or the supervising authority20 in the cases determined by law, such as when the purpose of the association has been accomplished, abandoned, or evolved to a different one from the purpose set forth in the charter (Art. 105 CC). The patrimonium of a dissolved association is distributed as stipulated by law or by the charter or constitutive deed, or as the appropriate organ has

18

For the Meeting of the Members to rule on the dissolution of the association it is necessary for at least one half of the members to be present and for the majority vote to be a majority of three quarters of those present (Art. 99 CC). 19 The One-member Court of First Instance rules ex parte (Arts. 739, 740, para. 1, and 787 CCPr.). 20 Supervising authority is the appropriate Circuit Governor. See Ap. Georgiadis, op. cit. p. 203, footn. 71 and the references cited thereat.

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decided;21 for example, it will devolve on another association pursuing the same or similar purpose. In case it is not determined in one of the above mentioned ways what will happen with the patrimonium of an association after dissolution, it devolves on the state which is then obliged to fulfill the purpose for which the association was constituted (Art. 77 CC). The patrimonium of an association that dissolved never devolves on its members (Art. 106 CC). Liquidation is the stage following dissolution. During liquidation the general rules of liquidation of legal persons are followed.22 V. THE FOUNDATION 1. The Concept Foundation is an aggregate of property assets (patrimonium) which has been set up to serve a certain purpose (Art. 108 CC). Examples: − Through a juridical act inter vivos, A leaves part of his estate for the establishment of a model hospital unit in his home town. − Through his will, A leaves his patrimonium for the establishment of a foundation granting fellowships to exceptional students of the University of Piraeus so that they may pursue graduate studies abroad.

2. Conditions for Establishing a Foundation For a foundation to acquire legal personality the following are necessary: A. Establishing Deed The establishing deed of a foundation may result either from a unilateral juridical act inter vivos, embodied in a notarial document, or from a testamentary disposition (Art. 109 CC). It is necessary for the establishing deed to specify the purpose of the foundation and the assets assigned to it (Art. 110, 1 CC).

21

If there is no mention of it in the charter, the matter is decided by the Meeting of the Members. 22 See above Ch. C, III, 1, H, b.


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B. By-laws The by-laws of the Foundation determine the title, seat, and conditions of operation of the foundation. The by-laws may be included in the establishing deed or they may be determined in the Presidential Decree approving the establishment of the foundation (Art. 110, 2 CC). C. Presidential Decree For the establishment of a foundation to be approved, a Presidential Decree is required. The issuance of the Presidential Decree (by the President of the Republic) will be sought by the competent authority (Art. 112 CC) following verification not only of the legality but also of the expediency of establishing the foundation.23 If the purpose of the foundation is beneficial to the public, competent authority is the Ministry of Finance jointly with whatever other Ministry is appropriate in each particular case. Example: In the case of a foundation established for the purpose of granting fellowships, the Presidential Decree, necessary for the approval of its establishment, is issued by the Ministers of Finance and National Education & Religion.

The foundation acquires legal personality upon the publication in the Official Government Gazette of the Presidential Decree approving its establishment (Article 108 CC). 3. Organization and Operation of the Foundation The operation of the foundation is regulated by its by-laws and the general provisions of the Greek Civil Code regarding legal persons. In case the purpose of the foundation has become unrealizable, it is possible for a similar purpose to be assigned to it according to what may be the most probable will of the founder (Art. 120 CC). For example, a foundation whose purpose was to offer assistance to one category of victims, now eclipsed, such as the victims of the 1913 war between the Greeks and the Bulgarians, may, according to the founder’s most probable will, serve the victims of the Greek-Italian war of 1940.

23

See Ap. Georgiadis, op. cit., p. 211.

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4. Dissolution of the Foundation The foundation is dissolved in the following instances: A. Ipso jure in the cases provided for in the establishing deed of the foundation or its by-laws (Art. 117 CC). B. With a Presidential Decree in the cases provided for by law, e.g. if the purpose of the foundation has been realized, if the foundation has deviated from its purpose, and if the purpose or its operation have become unlawful (Art. 118 CC). VI. THE FUND RAISING COMMITTEE 1. The Concept Fund raising committee is a committee composed of at least five persons whose purpose is to use solicitation, the organization of festivities, and other similar means in order to collect money or other useful items for the sake of a public purpose or a purpose of public benefit (Art. 122 CC). 2. Conditions for Its Constitution For the fund raising committee to acquire legal personality, the following is necessary: A. Constitutive Deed Constitutive deed is the written agreement of at least five persons to establish a fund raising committee (Arts. 63 and 122 CC). B. Presidential Decree A Presidential Decree is needed for the approval of the constitution of the fund raising committee. The issuance of the Presidential Decree (by the President of the Republic) is occasioned by the Ministry of Public Health and Social Services which had previously checked the legality and expediency of the fund raising committee. The Presidential Decree contains the by-laws of the fund raising committee and the determination of its seat, its task and the time frame set for the completion of its work.


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The fund raising committee acquires legal personality at the time of the publication in the Official Government Gazette of the Presidential Decree approving its constitution. 3. Dissolution of the Fund Raising Committee The fund raising committee is dissolved in the following instances: A. Ipso jure, from the expiration of the time period set for the completion of its task, or from the termination of its task (Art. 124 CC). B. With a Presidential Decree in the cases provided for by law, e.g. if the committee has deviated from its task, if the performance of its task has become unrealizable, or if its purpose has become unlawful or immoral (Art. 125 CC). VII. THE CIVIL PARTNERSHIP 1. The Concept Civil partnership is the agreement of two or more persons mutually assuming the obligation to pursue, with common contributions, a common purpose, mainly economic (Art. 741 CC). 2. Conditions for the Acquisition of Legal Personality Civil partnership is not a legal entity. However, if the purpose it pursues is financial, it may acquire legal personality, if the conditions of publicity laid down by law for general partnerships have been complied with (Art. 784 CC).24 These conditions are the following: A. Recordation of a summary of the agreement to form a civil partnership (which is done in writing) in a special register kept by the secretary of the Court of First Instance of the district where the partnership has its seat. B. Posting of the summary for three months in the courtroom, i.e. in a public place of the Court of First Instance accessible to the public.

24

See Arts. 42-44 of the Greek ComN.

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We need to distinguish between civil partnership and commercial partnerships which pursue a commercial purpose and are regulated by the rules of Commercial Law.25

25

See above Ch. C, II, 2.

PART TWO THE RIGHT CHAPTER A CONCEPT AND DISTINCTIONS OF RIGHTS I. THE CONCEPTS OF LEGAL RELATION AND RIGHT Legal relation is every relation of human life regulated by law and resulting in legal effects, e.g. the relationship between employer and employee, seller and buyer, parents and children. The regulation of a legal relation by the law results in the creation of rights and obligations. Every right is usually accompanied by a corresponding obligation, i.e. the binding of a specific person to perform in a certain way.1 When, for example, the employee has the right to ask his employer for his wages, there is a corresponding obligation of the employer to pay the wages. Or the buyer’s right to demand that the ownership of the item sold be transferred to him and that the same be materially delivered to him corresponds to the seller’s obligation to fulfill these demands. The right is a basic concept of law. Right is the power a person is granted by law to seek the vindication of an interest the law deems worthy 1

However, there are rights which are not linked from the start with a corresponding obligation. For example, the right of ownership does not correspond with the specific obligation of a certain person; there only exists the general obligation for all to refrain from acts that would constitute an offense against that right. Only in case a person’s right to ownership was offended, is there an obligation for the offender to stop offending, to refrain from doing so in the future, and perhaps to be liable for damages. Similarly, to every obligation there does not necessarily exist a corresponding right. This, for example, is the case when in his will the testator obliges his heir to furnish a performance to another, without conferring to that other person the right to claim the performance in question (Art. 1715 CC).


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of protecting. For example, the law recognizes the right of the child under age to demand maintenance, given the fact that existence constitutes an interest. II. TYPES OF RIGHTS From the several distinctions of rights that exist we will limit ourselves to the following: 1. Property, Personal, and Mixed A. Property Rights Property rights are the rights which are recognized in order to satisfy an economic interest. Property rights are the obligational rights, the real rights, and the succession rights. a. Obligational rights: obligational right is the right which enables the beneficiary to demand from another the performance of an obligation. Contracts are usually the source of obligational rights.2 In a sale contract, for example, such is the right of the seller to demand payment for the item sold, or in a loan agreement the right of the lender to demand from the borrower the payment of his debt. b. Real rights: real right is the right providing an immediate and against all (erga omnes) authority on the object. Such is, for example, the right of ownership, where the owner of a thing has direct (i.e. without the need of an intermediary) and erga omnes authority on the object, meaning that he can turn against anyone who takes away or disturbs his right to ownership. c. Succession rights: succession right is the right a person has on the property of another who is deceased, e.g. the right of the heir to demand that the succession be delivered to him. B. Personal Rights Personal rights are the rights aiming at the satisfaction of a moral interest. Personal rights are the right to one’s personality3 and the family

2 3

For the concept of contract, see below Part Three, Ch. B, I, 2. See above Part One, Ch. B, III, 1, A.

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rights, i.e. the rights stemming from a family relationship (such as, for example, marriage, or the relationship between parents and children). C. Rights of Mixed Nature Rights of mixed nature are the rights having at once a personal and a property aspect. Such is, for example, the right to the products of one’s intellect, i.e. the right a person has on the products of his intellectual work. Examples of mixed rights are the author’s right to allow or disallow the publication of his book, the musician’s right to allow or disallow the broadcasting of his musical compositions from a radio station, or the right of an inventor over his invention. From these mixed rights stem both moral rights (e.g. the right of the writer to be recognized as the author of his work, publish, withdraw, or modify it) and property rights (e.g. the right of the author to secure for himself financial benefits from the publication of his work). 2. ‘Power Conferring’ and ‘Condition Forming’ Rights

∗

A. ‘Power Conferring’ Rights ‘Power conferring’ rights, or rights to claiming, are the rights conferring the power to their bearer to control a certain thing (e.g. ownership), or to interfere in the sphere of the personal life of another (e.g. parental care). The power conferring rights can be distinguished in absolute and relative. a. Absolute rights: absolute right is the right that may be asserted against all (erga omnes). The law prohibits to all any kind of interference with one’s things. Consequently, the bearer of this type of right may pursue the thing in whoever’s hands it may be.

In contrast to common law, there is in Greek law a plethora of distinctions of rights all of which are not easily translatable into English. In fact, at times this phenomenon of multiple distinctions has been criticized as a preoccupation with rights to the detriment of focusing on remedies or actions. See, for example, S. Symeonides ‘The General Principles of Civil Law’, in K. Kerameus – Ph. Kozyris (eds.), Introduction to Greek Law, 1993, p. 60 (in English). Here we translate the Greek terms ‘εξουσιαστικό’ and ‘διαπλαστικό’ as ‘power conferring’ and ‘condition forming’ respectively in hopes of staying closer to the original by adopting this circumlocutory rendition (Translator’s note). ∗


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The right of ownership is an absolute right. For example, A, the owner of a piece of land, is entitled to demand from anyone not to offend his property, such as by moving the fence away from his property. The right to one’s personality is also an absolute right. For example, A, a medical doctor, may demand from all not to defame him. b. Relative rights: relative rights may only be asserted against a specific person and oblige him to conform to a certain behavior. Obligational rights, i.e. the rights that stem from the law of obligations, are relative rights. If, for example, A sells a car to B, the seller’s right to demand payment from the buyer (the monetary payment agreed upon) is relative because A, the seller, can take action in this regard only against B. B. ‘Condition Forming’ Rights ‘Condition forming’, or constitutive, rights are the rights which permit the bearer to proceed unilaterally to the formation, change, or abrogation of a legal relation or a right. Examples: − The right to seize an abandoned movable is a ‘condition forming’ right because its exercise results in the acquisition of the right of ownership on the movable thing by the person who seized it. − The right of each of the spouses to dissolve the marriage through divorce is a ‘condition forming’ right because its exercise puts an end to the legal relation of the marriage.

CHAPTER B CLAIM AND DEFENDANT’S PLEA I. THE RELATIONSHIP BETWEEN RIGHT AND CLAIM Claim is a kind of right. Claim is the right one has to demand from another an action or omission (Art. 247 CC). 1. The concept of right is broader than that of claim. The right may be the source of many claims, the same as it may be the source of no claim. Example: The right to one’s personality is an absolute sovereign right. If no one offends the personality of another, this right does not give rise to any claim. The only time claims arise is when one person offends the personality of another, such as when A is being slandered or defamed by B. In this case the party whose personality was offended has against the offender (i.e. A has against B) not just one but more claims (the claim for the offense to cease, the claim for the offense never to be repeated in the future, and the claim for damages).

From the above example two things follow: one, that the right to personality, and, more generally, all absolute rights do not generate a claim unless offended; two, that when offended, such rights do not generate just one but several claims. The ‘condition forming’ rights do not generate any claim. 2. The right is subject to term of extinction, whereas the claim is subject to prescription.

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More specifically: Term of extinction of a right is the time frame within which a right needs to be exercised.1 If the right is not exercised during this time frame, it is extinguished. Prescription is the weakening of the claim.2 This means that, if the person entitled to raise a claim does not do so within a certain period of time, the law allows the debtor to refuse performance. II. THE RELATIONSHIP BETWEEN CLAIM AND LEGAL ACTION The term legal action has two meanings: the one is substantive and the other procedural. 1. Legal Action in the Substantive Sense of the Term In the substantive sense of the term legal action and claim coincide.3 2. Legal Action in the Procedural Sense of the Term Legal action in the procedural sense of the term is the right of a person to seek judicial protection from the state. Legal actions in the procedural sense of the term are distinguished in: A. Declaratory Actions The declaratory legal action aims at declaring the existence or non existence of a legal relation. Such is, for example, the lawsuit of A against B demanding the recognition of the fact that between him (A) and B a rental agreement exists regarding the lease of an immovable property; or the lawsuit of a mother against the person she claims to be the child’s father demanding that the paternity of the child born out of wedlock be acknowledged.

1

See below Ch. F, II. See below Ch. F, I. 3 Regarding the concept of legal action in the substantive sense of the term, several views have been upheld. See Papantoniou, op. cit., p. 202; Spyridakis, op. cit., p. 106; Simantiras, op. cit., p. 177; Papasteriou, op. cit., Vol. I/a, p. 205 et seq. 2


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B. Actions to Perform Action to perform (or compelling to perform) is the action through which it is demanded that a person be compelled to an action or omission. For example, when A lodges an action against B for the payment of the money the latter owes to him on account of a loan agreement existing between them, what is being sought is for B to be forced to pay A the money he owes to him. C. ‘Condition Forming’ Actions

∗

‘Condition forming’, or constitutive, action is the action seeking to create, alter, or nullify a legal relation through the exercise of a ‘condition forming’ right. For example, given the fact that the right of each spouse to demand the dissolution of the marriage is a ‘condition forming’ right,4 the lawsuit for divorce is a ‘condition forming’ legal action seeking to abolish the existing legal relation of the marriage. III. THE DEFENDANT’S PLEA The defendant’s plea is also a right which is opposed against another right and cripples its effect. That is, the plea is used as a means of defense against the one who asserts a different right and raises a different claim. Examples: − A had loaned B 1,500 euros and the loan had to be paid back after one year. After the year passed, A, who was claiming that B had not paid him back the 1,500 euros, filed a lawsuit against B in order to recover his money. To refute A’s claim, B may advance a plea claiming that he does not owe A anything because he has already paid him back the loan. − Following a loan agreement, A owed B 1,000 euros. B was nonchalant and did not pursue his claim against A. Twenty three years after the time the loan was supposed to have been paid back, B filed a lawsuit against A demanding his money. To refute B’s claim, A advanced the plea of prescription claiming that B had not pursued his claim within the period of time set by law for this purpose.

∗

4

Regarding terminology, see above Translator’s note, p. 75 (Translator’s note). See above Ch. A, II, 2.

CHAPTER C ACQUISITION, CHANGE, AND LOSS OF A RIGHT I. ACQUISITION OF A RIGHT Acquisition of a right is the connection of the right with a specific person called the subject (bearer) of the right. The acquisition of a right may be original or derivative. 1. Original Acquisition The acquisition of a right is original when the right acquired is independent of the right of another person. Example: A finds an abandoned book and keeps it for himself (acquisition of a derelict object). In this case A acquired his right on the book in an original manner.

2. Derivative Acquisition The acquisition of a right is derivative when the right acquired is based on the right that another person had, i.e. the former owner of the right. Example: A transfers the ownership of his car to B. In this case B acquires the right of ownership on the car in a derivative manner because it is based on the transfer made by A.

II. CHANGE OF A RIGHT There are two ways a right may be changed: subjectively and objectively.

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GENERAL PRINCIPLES

1. Subjective Change We have subjective change of a right when there is change in the person of either the debtor or the creditor. Examples: − A, the debtor, owed B, the creditor, 1,500 euros from a loan agreement. A died and C is his heir. Consequently, we have here a change in the person of the debtor because C now enters in the place of the debtor (A). − A, the debtor, owed B, the creditor, 1,500 euros from a loan agreement. B died and D is his heir. Consequently, we have here a change in the person of the creditor because D now enters in the place of the creditor (B).

2. Objective Change Objective change of the right means that the content of the right has changed. Example: A who owed B 1,500 euros from unpaid wages, gave him 600 euros. In this case we have an objective change of the right in question because, following the partial fulfillment of A’s obligation, B’s claim was reduced from 1,500 euros to 900 euros.

III. LOSS OF A RIGHT Loss of a right to its bearer may occur in the following ways: 1. Loss of a Right with the Consent of the Bearer When the loss of the right results from the bearer’s will, it is called disposition of right. Example: A transfers the ownership of his car to B. In this case A willingly loses his right of ownership on his vehicle.

2. Loss of a Right without the Consent of the Bearer Loss of a right without the bearer’s consent may occur in different ways, such as, for example, the bearer’s death, or total destruction of the object of the right. Examples: − Upon his death, A loses the right to his personality or to his name. − With the total destruction of A’s stereo equipment due to fire, A loses his right of ownership of the stereo equipment because the object of his right of ownership was totally destroyed.

CHAPTER D USE AND ABUSE OF A RIGHT I. THE EXERCISE OF A RIGHT Exercise of a right is the use of the power conferred by the right to its bearer. The exercise of a right includes: 1. The enjoyment of the benefits included in the right. Examples: − A is the owner of a farm. His right of ownership of the farm gives him the benefits of cultivating it and enjoying its fruits. − B is the owner of an apartment. His right of ownership of the apartment gives him the benefits of living in it or leasing it.

2. The disposal of the right. Examples: − A, who is the owner of the farm, transfers it to B. − B, who is the owner of the apartment, transfers it to C.

3. The protection of the right, i.e. the recourse to any legal action in case of its violation. Examples: − The trespassing on A’s farm by a third party constitutes a violation of his right of ownership. − The breaking of the front door of B’s apartment by a third party constitutes a violation of his right of ownership.

A right may be protected by way of court protection or by self-rule (private justice).1

1

See below Ch. E.


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II. THE ABUSE OF A RIGHT 1. General The bearer of a right is free to exercise it to its full extent but the lawmaker has set certain limitations by forbidding the exercise of a right when it manifestly goes beyond the boundaries of good faith (bona fides), ‘good morals’ (boni mores), or the social or economic purpose for which the right was granted. In this fashion the exercise of a right remains under judicial control. This is fair because the rights are granted by the legal order for the purpose of securing the harmonious regulation of living in a social setting. Thus, it is only natural that the same legal order would want to have the general supervision, so that living in a social setting would not be disturbed by the exercise of rights. According to Article 281 of the Greek Civil Code “the exercise of a right shall be prohibited if such exercise obviously exceeds the limits imposed by good faith or good morals or by the social or economic purpose of the right.” 2. Conditions Determining the Abusive Exercise of a Right In order for the exercise of a right to be characterized as abusive, the following two conditions need to concur: A. The exercise of the right needs to exceed the limits set by good faith, or ‘good morals,’ or the economic or social purpose of the right. The criteria determining the boundaries beyond which the exercise of a right is abusive are: a. Good faith (bona fides): good faith is the directness and honesty required in legal transactions. Examples of exercise of a right in a way that exceeds the limits set by good faith: the firing of an employee because of revenge, the omission to promote an employee while promoting another one instead with clearly fewer qualifications, the construction of an unusually high boundary wall in order to bother the neighbor.

b. ‘Good morals’ (boni mores): ‘good morals’ are the views of the average social man on morality and especially on social morality.

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Examples of exercise of a right in a way exceeding the boundaries set by ‘good morals’: the firing of an employee due to illness or of a pregnant woman due to her pregnancy; eviction of the lessee while he is bedridden.

c. The economic purpose of the right: the economic purpose of a right follows from the more general economic interests that the legal order purports to serve when protecting a specific right. Example of exercising a right in a way that exceeds the boundaries set by the economic purpose that the right in question purports to serve: eviction of a tenant for whom there exists a guarantor allegedly because he is late in paying the rent but in reality simply because the lessor wishes to find another tenant who would pay him a higher rent. In this case, because a guarantor for the current tenant does exist and he has undertaken the obligation to satisfy the creditor if the debtor of the principal obligation defaults, the lessor’s right to evict the current tenant is not justified since his claim for rent is protected by the guarantee.

d. The social purpose of the right: the social purpose of the right is the social function which, according to the legal order, the right in question serves. Examples of exercise of a right in ways that exceed the limits set by its social purpose: the firing of a female employee because of decrease of her productivity due to problems in her constitution following childbirth; the firing of a male employee because of his legal involvement in trade union activities.

B. The boundaries set by good faith, or ‘good morals’ or the economic or social purpose of the right must be significantly exceeded. These boundaries are considered significantly exceeded only when the exercise of the right indubitably clashes with the limits set by good faith, or ‘good morals,’ or the economic or social purpose of the right. 3. Legal Consequences of the Abusive Exercise of a Right According to Article 281 of the Greek Civil Code the abusive exercise of a right is forbidden. This means that such action would constitute an illegal act. Consequently: A. If the abusive exercise of the right is manifested by way of a juridical act, e.g. termination of a contract of employment (i.e. by firing the employee), this juridical act is null and void. B. If the abusive exercise of the right is manifested by way of a physical act, e.g. the construction of a boundary wall in order to bother the neighbor, it is possible for the person adversely affected by the abusive


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exercise of the right to demand for its exercise to cease at present and not to be repeated in the future. C. If the abusive exercise of the right is manifested by way of taking legal action, e.g. filing a lawsuit in order to evict a lessee who is bedridden, the lawsuit is dismissed. Finally, it should be noted that in the event that, aside from the illegality, the other conditions for delictual liability2 also concur, the person who exercises the right abusively owes compensation to the one who is adversely affected. For example, in the case of omitting to promote an employee, the unfairly treated employee is entitled to damages. 4. Means of Defense of the Adversely Affected Party from the Abusive Exercise The person adversely affected by the abusive exercise of a right may defend himself either by way of lodging legal action or by way of opposing pleas. Example of defense by way of lodging legal action: A, who is harmed by the construction of a tall boundary wall, may bring legal action against B, the person who built the wall, and demand for the wall to be torn down and not to be erected again. Example of defense by way of opposing a plea: A, the lessor of an apartment, brings legal action against B, the lessee, who at the time is bedridden on account of a serious stroke, and seeks to evict him because he owes him two months’ rent. B refutes A’s claim by opposing a plea to the effect that such exercise of a right is abusive and demands to keep residing in A’s apartment.

2

The conditions for establishing delictual liability are the following: (i) unlawful human behavior; (ii) fault; (iii) damage; (iv) causal relationship between the unlawful and culpable behavior and the damage (i.e. that indeed the damage was the result of the unlawful and culpable behavior). See below Law of Obligations, Part Three, Ch. B, I, 4, B.

CHAPTER E THE PROTECTION OF RIGHTS The need to protect a right arises only when it is offended. The protection of rights is usually judicial, i.e. handled by the courts of law. Exceptionally, however, it is allowed for one to protect one’s right by selfrule (private justice). I. JUDICIAL PROTECTION 1. General Judicial protection of a person’s rights is the protection provided by the state through its court system. If a person’s right was offended, by bringing the appropriate action he may demand from the court of law having jurisdiction over the matter to issue the appropriate judgment.1 If the beneficiary of the right would not follow this path and would proceed instead with self-rule regarding his right, we would end up abolishing every concept of equity and fairness in the state. The right of the stronger would prevail and, consequently, the weaker members of society would never be able to find justice. The legal protection of rights is regulated by the Greek Law of Civil Procedure. Nonetheless, we think it necessary to provide here a summary presentation of it.2

1

According to the Greek Constitution (Art. 20, para. 1) “Everyone is entitled to legal protection by the courts and may plead before them his position on his rights or interests, as specified by law.” 2 See G. Rammos – N. Klamaris, Manual of Civil Procedural Law, Vol. A΄ (unfin.), 3d ed., 1998, p. 15 et seq.; K. Beis, Lessons on Political Procedure: Fundamental Concepts and the Organization of the Courts, 4th ed., 1984, p. 109 et seq.; P. Yessiou – Faltsi, Civil Procedure in Hellas, 1997 (in English); K. Kerameus, in K. Kerameus – Ph. Kozyris (eds.), Introduction to Greek Law, op. cit., p. 265 et seq.


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Justice is rendered by the courts which are divided in civil courts, aiming at the resolution of civil disputes, criminal courts, aiming at the persecution and punishment of the offenders of the criminal law, and administrative courts, aiming at the resolution of administrative disputes, i.e. disputes between the administration and those administered by it, such as, for example, disputes over debts resulting from owing taxes. Private disputes, as was earlier mentioned, are resolved by the civil courts. The laws regulating the organs and the way of resolution of civil disputes are contained in the Civil Procedure. 2. Distinctions of Civil Courts The civil courts are distinguished in first instance courts, appellate courts, and the Court of Cassation (Areios Pagos), i.e. the Greek Supreme Court. The principle of having courts of two instances is established by the Greek Code of Civil Procedure.3 According to this rule, for every case of dispute the law generally provides for the possibility of two judgments, i.e. the initial judgment and, following an appeal, the review of the first instance judgment by a court of ‘second instance,’ a court of appeals. Based on this principle the courts are distinguished in first instance courts and courts of appeals. A. First Instance Courts First instance courts are the courts before which the cases are first introduced. There are three first instance courts: the Justices of the Peace, the One-member Courts of First Instance, and the Multi-member Courts of First Instance.4 5 The law distributes the private disputes among the above three courts of first instance using as a criterion the importance of the object disputed. The importance of the object in dispute usually depends on the value of the object and, exceptionally, on the nature of the dispute.

3

See Art. 12 CCPr. The One-member Courts of First Instance have the same seat as the Multi-member Courts of First Instance but they constitute separate courts. 5 In rare cases even the courts of appeals function as first instance courts, as when they rule on disputes from the execution of contracts of Public Works (Art. 61, Introductory Law of the Code of Civil Procedure). 4

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More specifically: a. Justices of the Peace: 6 the Justices of the Peace have competence to rule on:7 aa. all the disputes that can be assessed in monetary terms provided that the value of their object does not exceed the amount of 12,000 euros; bb. several simple and urgent cases, regardless of the value of the object in dispute, e.g. certain rural disputes, such as the disputes concerning damage to trees, vines, fruit, etc., disputes over the usage of running water or the prevention of it. b. One-member Courts of First Instance: 8 the One-member Courts of First Instance have competence to rule on:9 aa. all the disputes that can be assessed in monetary terms provided that the value of their object is over 12,000 euros but does not exceed 80,000 euros; bb. certain categories of disputes even if the value of their object exceeds 80,000 euros, such as the disputes between tenants and landlords, employers and employees, or motor vehicle related disputes (e.g. claims for damages stemming from car accidents). c. Multi-member Courts of First Instance: 10 the Multi-member Courts of First Instance have competence over all the disputes for which the Justices of the Peace and the One-member Courts of First Instance do not have competence. 11 B. Courts of Appeals Courts of appeals are the courts ruling on appeals against the decisions of the courts of first instance. Courts of appeals are the Multi-member Courts of First Instance (acting as courts of appeals) and the Appellate Courts. 6 7

For the competence of the Justices of the Peace, see Art. 14, para. 1 and Art. 15 CCPr. In Greece there are today 63 One-member Courts of First Instance. 9 For the competence of One-member Courts of First Instance, see Art. 14, para. 2 and Art. 16 CCPr. 10 In Greece there are today 63 Multi-member Courts of First Instance, i.e. as many as there are One-member Courts of First Instance. 11 For the competence of the Multi-member Courts of First Instance acting as Courts of First Instance, see Art. 18, para. 1 CCPr. 8

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a. Multi-member Courts of First Instance as Courts of Appeals: the Multi-member Courts of First Instance rule on appeals against the decisions of the Justices of the Peace in their area.12 b. Appellate Courts:13 the Appellate Courts rule on appeals against the decisions of the One- and Multi-member Courts of First Instance in their area.14 C. The Court of Cassation (Areios Pagos) The Court of Cassation (Areios Pagos),15 which is the highest court in Greece (the Greek Supreme Court), is neither a first instance court nor a court of appeals because it does not deal with findings of fact; it only examines whether the law has been properly applied by the other courts in their judgments. The Court of Cassation (Areios Pagos) rules on petitions for cassation review16 of the judgment of any civil court17 and can reverse the judgment only for legal errors; not for errors related to the substantive evaluation of evidence or the verification of findings of fact. ∗

3. The Procedural Steps to Litigation before a First Instance Court For legal protection to be provided a series of procedural steps are taken which constitute the litigation.

12

For the competence of the Multi-member Courts of First Instance as Courts of Appeals, see Art. 18, para. 2 CCPr. 13 In Greece there are today 15 Courts of Appeals. Under every Court of Appeals there are one or more Multi-member Courts of First Instance and an equal number of One-member Courts of First Instance. 14 For the jurisdiction of the Courts of Appeals, see Art. 19 CCPr. 15 There is only one Court of Cassation, the Areios Pagos, and its seat is in Athens. The constitution of Areios Pagos is very different from the constitution of the American Supreme Court. Its members are: one President, nine Vice Presidents, and fifty Supreme Court Justices hearing cases either in panels of five or in full bench. See Art. 23 of L. 1756/1988 on Court Organization (Translator’s note). 16 Cassation review is the legal remedy through which the judgment of any civil court (i.e. Justice of the Peace, One- or Multi-member Court of First Instance, and Court of Appeals) is brought before the Court of Cassation (Areios Pagos) with the request that the judgment in question be reversed for reasons of violation of a rule of law. 17 See Arts. 552 et seq. CCPr. ∗

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A. Bringing an Action The first step for the litigation to commence is to bring an action before the court. Legal action is the procedural means through which we demand legal protection by way of issuance of a favorable court judgment.18 The person who brings the action is called the plaintiff and the person against whom an action is brought is called the defendant.19 The action is brought through the filing of a written complaint which on the one hand is entered in the docket of the court having competence on the matter and on the other hand is served on the defendant. Example: A owes B 1,500 euros from a loan agreement but refuses to pay his debt. B (the plaintiff) brings action against A (the defendant) demanding from the court to issue a judgment according to which A would be ordered to pay him back.

In his action B refers to the factual matters underlying his right which was offended by the defendant. Example: B refers to the factual matter that he loaned 1,500 euros to A for a period of time. This time period expired and yet the defendant did not pay him back.

B. The Defense of the Defendant According to the procedure followed by the court, the defendant may: a. Deny the facts as alleged by the plaintiff, i.e. claim that the facts presented by the plaintiff have not taken place; hence the relevant right was never created. Example: A claims that a loan agreement between him and B was never concluded; consequently, the right evoked by B (for the satisfaction of which the latter brings the legal action in question) has never been created.

b. Oppose pleas: pleas20 are the means of defense through which the defendant, though accepting that the conditions generating the crucial legal relation are indeed present, maintains that other factual matters were also present which either prevented the creation of the disputed right or abolished it after it was created. 18

See above Ch. B, II, 2. The plaintiff and the defendant together are called the litigants. 20 See above Ch. B, III 19


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Examples: − A claims that, because the loan agreement he concluded with B is null and void due to his incapacity to conclude juridical acts21 at the time he entered into the agreement (e.g. A was not conscious of his own acts), the disputed right of B was never created, i.e. the right to demand the payment of the loan. − A claims that, although a loan agreement between him and B has indeed been concluded, because A has already paid it back, B’s right to demand from him the payment of the loan has been extinguished, i.e. it no longer exists.

C. Evidence For the court to decide on the truthfulness or lack thereof of the claims advanced by the opposing parties during the litigation, several pieces of evidence are being considered, such as for example witnesses, expert witnesses, documents, etc. Not all factual matters presented by the litigants (i.e. by the plaintiff and the defendant) constitute subject matter of evidence22 but only those which substantially influence the outcome of the proceedings, i.e. those which have given rise to the disputed right (loan), or have extinguished it (payment), or have prevented it from emerging (incapacity of the defendant to enter into juridical acts at the time of their conclusion). D. Court Ruling The court, after weighing the claims of the litigants, issues the appropriate judgment, i.e. it either accepts or rejects the action brought by the plaintiff. 4. Legal Remedies23 If the court judgment is not considered satisfactory by the plaintiff or the defendant, it may be appealed to a higher court (the judgments of the courts of first instance are appealed before a court of ‘second instance’, and the judgments of the courts of first and second instance are subject to cassation review before the Court of Cassation, the Areios Pagos,24) from which it is petitioned that the judgment be reversed or modified so that justice may be better served. 21

For the incapacity to conclude juridical acts, see below Part Three, Ch. C, II, 4. Regarding evidence, see Arts. 335-465 CCPr. 23 See Arts. 495-590 CCPr. 24 See above Ch. E, I, 2, C. 22

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5. Forcible Execution25 The protection of the rights offered through a court judgment would often be useless if it were not for forcible execution. Forcible execution, which is performed by the public authorities, is the process forcing the defendant to comply with the court judgment. For the satisfaction of pecuniary claims, attachment26 to the defendant’s property allows for it to be subsequently auctioned.27 The plaintiff’s claim is satisfied from the money received from the asset(s) auctioned. Example: A owed B the amount of 15,000 euros from a loan agreement. B brought action against A demanding from the court that A be forced to pay him the above amount. The court issued a condemnatory judgment but A would not comply with it. During the enforcement proceedings that followed, A’s assets were attached in order to be auctioned. B’s claim will be satisfied from the money received from the auction sale.

6. Provisional Remedies The big delays encountered in the process of conferring justice during ordinary proceedings created the need for a parallel yet different type of legal protection which is quick but only has a temporary character. It is the proceedings of provisional remedies. Provisional remedies are the summary proceedings established by law28 in case of urgency or for the purpose of averting impending danger. The purpose of these proceedings is to secure or safeguard a substantive right or to manage a situation. The judgment on provisional remedies is valid temporarily and in no way affects the main litigation.29 The court before which the main litigation is pending always has the power to modify or revoke the provisional remedies in part or in whole.30 Example: A, a farm owner, cuts fruit from the farm of his neighbor B or passes through his neighbor’s farm without permission. In these cases, for the offenses 25

See Arts. 904-1054 CCPr. Attachment is the procedural act which binds the property of the debtor materially and legally (see Beis, op. cit., p. 413). 27 Auction is the sale which takes place following a public invitation to every interested potential buyer and the selection of the one who offers the highest bid (see Beis, op. cit., p. 422). 28 See Arts. 682-738 CCPr. 29 See Art. 695 CCPr. 30 See Art. 697 CCPr. 26


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to cease, B may bring action before the courts against A on the grounds of trespass on property. This process, however, is very slow. For this purpose the law provides for the accelerated process of provisional remedies aiming at the speedy and provisional settlement of disputes so as to avoid conflicts and fighting.

II. SELF-RULE OR PRIVATE JUSTICE Exceptionally, the law allows for self-rule with respect to one’s right, i.e. for the beneficiary of the right to perform all the necessary acts required for its protection. Those exceptional cases are self-redress, self-defense, and state of necessity. 1. Self-redress Self-redress is the satisfaction of a claim by the beneficiary using his own force and without the assistance of the authorities (Art. 282 CC). According to the law, self-redress is permitted only when the following conditions concur: A. A private law claim exists which may be pursued by bringing legal action, e.g. a claim stemming from the trespass on ownership. B. The assistance of the authorities cannot arrive in time. ‘Authority’ means every competent public organ, e.g. the police. C. By reason of the delay, the realization of the claim runs the risk of being frustrated or considerably obstructed. Whether such danger actually exists or not is evaluated objectively. Examples: − If A removes from B, an author, the only manuscript of his work and is about to set it on fire, there is danger of frustration of B’s claim. − If A, a tenant in B’s apartment, loads his furniture on a truck in order to move when he has not paid rent in four months, or if A, an unknown individual, grabs B’s briefcase − while the latter sits and chats in a restaurant − and runs to the door, there is danger of considerable obstruction regarding the satisfaction of B’s claims.

For self-redress to be permitted by law, i.e. for it not to be considered an unlawful act, the beneficiary needs to have employed only the absolutely necessary means for the protection of his claim. For example, suffices that he regains possession of the stolen object; it is not necessary for him to also arrest the offender.

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If either the above conditions were not present or the means used by the beneficiary were not absolutely necessary, the act is unlawful and the person who engaged in self-redress is liable to pay damages. Example: In the event that A stole the briefcase of B, the latter is entitled to regain possession of the briefcase on his own. But if B, in order to remove his briefcase from A’s hands, caused A serious personal injury, i.e. something that is not necessary for the satisfaction of his claim, B will be forced to pay damages to A.

2. Self-defense Self-defense is the act of defense one is allowed to resort to in order to avert present and unlawful attack on himself or a third party (Art. 284 CC). According to the law, in order for self-defense not to be considered an unlawful act, the following conditions need to concur: A. Attack, i.e. a human act offending a person (natural or legal) or said person’s equitable goods, such as freedom, honor, personal integrity, property. B. The attack must be present, i.e. it must have begun and not have finished as yet. C. The attack needs to be unjust, i.e. the person attacking must commit an unlawful act. D. The defendant’s act must constitute an act of defense, i.e. purport to avert the attack. If the act is not a defensive act, then we are dealing with counter attack. E. The act of the defendant must be directed against the attacker and not against a third party. F. The defense must be the necessary one. Whether in each case the defense was indeed the necessary one or was in excess of the limits of defense is to be evaluated by objective criteria. To the extent that the defendant exceeded the limits of defense, he has committed a counter attack against which the original attacker has the right to counter defend himself. Example: During a fight between A and B the former pushes the latter. B, who is on the defense, may beat A. This act of defense is permitted by law; consequently, it does not constitute an unlawful act. However, if B, instead of beating A, causes him serious bodily injury by using a pocket knife which he carried with him, B has exceeded the limits of defense and his act constitutes an attack.


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In case the above conditions of self-defense do not concur, or the defendant’s act exceeds the limits of defense, the ‘defendant’s’ act is unlawful, thus creating for him the obligation to pay damages to the person who attacked. In the above example B’s attack entitles A to seek damages.

3. State of Necessity A state of necessity is present when a person is forced to damage or even destroy an object belonging to another in order to avert danger threatening to cause much greater damage to the individual who caused the damage or to a third party (Art. 285 CC). According to the law, in order for the damage or destruction of a foreign object not to constitute an unlawful act, the following conditions need to concur: A. Danger, i.e. a condition threatening to cause damage to a commodity. The danger may come from a natural cause (e.g. a snow storm), or from the same object which is being destroyed (e.g. a chasing dog on the loose), or from a human act (e.g. a chasing madman on the loose). B. The danger must be imminent. The danger is imminent when the damage is highly probable or expected within a short time. C. Damage or destruction of an object belonging to another. D. The damage or destruction of the object belonging to another must be necessary for the imminent danger to be averted. E. Threat of damage which is disproportionately greater than the one caused by the destruction of another person’s object. For example, human life is something the value of which is always far greater than the value of an object. But even when the conditions of the state of necessity concur, it is possible for the court to force the party who caused the damage to pay reasonable damages to the injured party (Art. 286 CC).31 31

Reasonable damages are the damages which depend on the circumstances in each and every particular case and on the judgment of the court. This compensation is based on the principle of equity (aequitas), given the fact that the lawmaker thought that in some cases it is neither appropriate to award full compensation nor to abstain from awarding any. See A. Litzeropoulos, in ERMAK, Art. 298, No 41 et seq.; M. Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 297-298, No 71 et seq.; M. Stathopoulos, General Law of Obligations, 3d ed., 1998, p. 188 et seq.; Ap. Georgiadis, Law

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Examples: − In order for A to save his life from a snow storm, he breaks the front door of a country residence so that he can get in. − In order for A to save his life from a chasing dog with rabies, he kills the dog. − In order for A to save his life from a madman chasing him, he breaks the crystal front door of an apartment building, so as to get in. In all of the above cases the damage caused was not due to an unlawful act; it was a necessary damage in order for a far greater damage to the person who initiated such act to be averted, i.e. in order for his life to be saved. However, because for the sake of saving a person’s life some damage did occur (e.g. damage to the front door of the country residence, the killing of a dog, or the breaking of the front door of an apartment building), the judge will force the person who caused this damage to pay reasonable compensation to the one who sustained it (i.e. the owner of the country residence, the owner of the dog, or the owners of the apartment building), so that part of the damage they sustained may be recovered.

In case the conditions of the state of necessity do not concur, the damage or destruction of another person’s object is unlawful and the person who caused the damage is obliged to compensate the one who sustained it. Example: If A caused the destruction or damage of another person’s object which was not necessary in order to avert an imminent danger (i.e. if he simply believed that he was being chased by a madman or a dog having rabies but in reality he was not), then he is obliged to make full restitution for the damage he caused.

of Obligations, General Part, op. cit., p. 151 et seq.; Ast. Georgiadis, Law of Obligations, General Part, Vol. I, 4th ed., 2003, p. 143 et seq.

CHAPTER F PRESCRIPTION AND TERM OF EXTINCTION I. PRESCRIPTION 1. The Concept If the person entitled to a claim does not exercise it within a certain time, the law gives the debtor the right to refuse fulfillment of his performance. This weakening of the claim is called prescription (praescriptio).1 ∗

Examples: − On March 14, 1989 A loaned B the amount of 500,000 drachmas which B was to pay back on March 15, 1990. B did not return the money on March 15, 1990 and A did not legally pursue his claim, as he was entitled to, i.e. he did not bring action against B before the courts for this loan. If A continues to abstain from bringing action against B for twenty years, i.e. until March 16, 2010, A’s claim will weaken, which means that it will prescribe. − B owes A 1,500 euros from wages. If for five years A does not claim the amount due to him from wages, his claim will weaken, i.e. it will prescribe.

What does it mean that a claim ‘weakens’? It means that the debtor may refuse fulfillment of his performance. Prescription is presented as an opposing plea, i.e. it depends on the good conscience of the debtor to invoke it and try to get out of his performance or not. The court does not take it into account ex officio, i.e. on its own motion (Art. 277 CC). In the above mentioned examples, if after prescription has accrued, i.e. after the claim of A against B has prescribed, A brings action against B demanding the 1

See above Ch. B, I, 2. This is what in common law is known as limitation of actions (statute of limitations) (Translator’s note). ∗

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return of the loan money or the wages owed to him, B has the right to oppose the plea that, after such a long time during which the claim was inactive, he does not owe A anything. But if B does not oppose the plea of prescription by invoking the statute of limitations argument, the court may not take it into consideration on its own motion (ex officio) and dismiss A’s claim on account of the fact that such claim has prescribed.

Prescription is an institution of public order (jus cogens). As with all institutions of public order, the rules governing it may not be altered following the parties’ agreement.2 Every agreement precluding prescription or defining a different period for it (shorter or longer than the one established by law), or terms which generally attenuate or aggravate the conditions for prescription, is null and void (Art. 275 CC). Example: If A owes B a certain amount of money from a loan, according to the law the debt will prescribe in twenty years. A and B may not agree that A’s debt to B will never be subject to prescription, or that it will prescribe after a longer or shorter period of time (i.e. in ten or twenty five years). If, despite this prohibition, A and B proceed to conclude such agreement, it will be null and void.

2. The Prescriptive Period In principle the prescriptive period is twenty years (Art. 249 CC). However, the law provides for shorter periods in case of certain claims such as claims from wages, rent, and interest for which the time period is five years (Art. 250 CC). In the above examples A’s claim from a loan is subject to a twenty year prescription, whereas his claim for wages to a five year prescription.

The computation of the time for prescription follows the general provisions of the law regarding terms.3 3. Beginning of the Prescriptive Period The prescriptive period commences from the time the claim was born and it is possible for one to pursue the recovery thereof judicially (Art. 251 CC).

2

Regarding the rules of jus dispositivum and public order, see above Introduction to Law, Ch. E, II, 2. 3 See Art. 241 et seq. CC. See below Part Three, Ch. F, II, 3, C and D.


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Example: On May 15, 2002 A had to return to B the amount of 800 euros he had borrowed from him. B’s claim against A starts on May 16, 2002, i.e. at the time the claim was born and it was possible for B to pursue it by legal action against A in order to recover his money.

An exception to the rule determining the beginning of the prescriptive period can be found in Article 253 of the Greek Civil Code which deals with claims subject to a five year prescriptive period. In these cases the prescriptive period starts running from the expiration of the year during which the prescription began. Example: A has a claim against B, his employer, for wages owed to him for the months of May and June 2001. Due to the fact that B was paying his employees in advance, i.e. for the month just starting he was paying them on the 1st of that month, the prescriptive period of A’s claims for wages began on May 2, 2001 and June 2, 2001 respectively; but in actuality, according to the above mentioned exception, it is considered having begun on January 1, 2002.

4. Suspension of Prescription A. The Concept Suspension of prescription means that during the prescriptive period a certain stretch of time is not counted on account of the occurrence of a specific event constituting the reason for the suspension. The prescription continues after the cessation of the suspension but may not be completed before at least a further six months from the cessation of the suspension causing event (Art. 257 CC). At this point it should be emphasized that for the accrual of prescription the time that had elapsed prior to the occurrence of the suspension causing event is added to the computation. B. Distinctions There are two types of suspension of prescription: absolute suspension and suspension of completion. a. Absolute suspension The suspension is absolute when the accrual of prescription is prevented no matter at which point the suspension causing event occurred. The law determines the cases of the absolute suspension of prescription (Art. 256 CC). They are:

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aa. between spouses during the time of the marriage; bb. between parents and children during the time of the children’s minority; cc. between tutors and wards during tutelage;4 dd. between masters and servants during the time of their masterservant relationship but not more than fifteen years. The reason for absolute suspension of prescription during the above mentioned instances is that the close relationship that exists between creditor and debtor should not be disturbed by a potential lawsuit. Example: On March 15, 1980 the 500,000 drachmas loan Mr. A had taken from Miss B a year earlier was due and payable. On said date, however, A did not pay back his loan to B. Consequently, from March 16, 1980 starts the prescriptive period of B’s claim. A and B got married on March 16, 1983 but were divorced eight years later, i.e. on March 16, 1991. In this case the prescription of B’s claim against A, the period of which had begun running on March 16, 1980, was suspended for the eight years of the duration of their marriage, i.e. from March 16, 1983 until March 16, 1991. The prescriptive period continues to run after the dissolution of the marriage. This means that the prescriptive period will be completed at the expiration of the 17th of March of 2008. The time periods computed for the completion of the prescription were: the time that had elapsed prior to the marriage, i.e. three years (March 16, 1980 to March 16, 1983), plus seventeen years after the dissolution of the marriage (March 17, 1991 to March 17, 2008). What was not computed and does not count towards accrual is the time of eight years during which the marriage lasted (March 16, 1983 to March 16, 1991).

b. Suspension of completion Suspension of completion of the prescriptive period means that the period could not be completed because the suspension causing event occurred during its last six months. This, for example, would happen if, as stated in Article 255 of the Greek Civil Code, for a certain period of time5 during the last six months of the prescriptive period the beneficiary was prohibited to pursue his claim on account of ‘force majeure’ (vis major). The law refers to moratorium as a special case of ‘force majeure.’ Moratorium is any real reason interrupting the operation of the courts (e.g. earthquake, flood, war). 4

A minor is under tutelage if neither parent has, or can exercise, the parental care (Art. 1589 CC). 5 It makes no difference how long this stretch of time might have been.


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The prescriptive period continues to run after the cessation of the suspension but may in no case be completed before the elapse of a further six months (Art. 257, 2 CC). Example: A had a claim against B from a loan agreement and the prescriptive period would be completed on September 15, 2003. However, between May 15, 2003 and May 31, 2003 A was unable to bring action against B because the courts were closed on account of earthquakes. In this case there is suspension of completion of the period of prescription because the suspension causing event took place during the last six months of the prescriptive period. Thus, the prescriptive period was continued from June 1, 2003 and was completed six months later, i.e. after the expiration of the 1st of December of 2003.

5. Interruption of the Prescriptive Period There are certain reasons interrupting the prescriptive period. But in the case of interruption of prescription, unlike what happens in the case of its suspension, the time that had run before the interrupting event is not taken into account for the computation. Instead, from the end of the interruption a new full period of prescription begins. For the new prescription the length of time required is the same as was for the one that was interrupted. The most important reasons for the interruption of the prescriptive period are the acknowledgement of the claim by the debtor (Art. 260 CC) 6 and the commencement of legal proceedings (Art. 261 CC). The prescriptive period that was interrupted by the commencement of legal proceedings begins to run anew from the last act of procedure on behalf of the litigants or the court (Art. 261 CC). Example: On May 15, 1990 A should have made a payment to B in the amount of 500,000 drachmas resulting from a loan agreement the two of them had concluded a year earlier. But on that date A did not make the payment in which case the prescription of B’s claim against A began on May 16, 1990. On September 10, 1991 B filed a lawsuit against A7 demanding from him payment of the debt. Since the commencement of legal proceedings interrupts the prescriptive period, beginning September 11, 1991 a new prescriptive period began. Given the fact that, in addition to the initial act of filing a lawsuit, other procedural acts followed, 6

The acknowledgment by the debtor of his obligation may be done by any type of action from which it clearly follows that he considers as valid the existence of a claim against him (e.g. by making a payment for interest to the beneficiary, or by requesting the court to give him an extension for the payment of his debt). 7 The legal action begins with filing the action with the court clerk and serving the defendant. See above Ch. E, I, 3, A.

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each procedural act brought a new interruption of the period of prescription. In the event, for example, that the lawsuit filed on September 10, 1991 was discussed by the court on January 15, 1992, we have a new interruption of the prescriptive period. The new period of prescription started on January 16, 1992. If, finally, the court ruling was issued on May 17, 1992, we have yet another interruption of the prescriptive period. The new period of prescription, which had begun on May 18, 1992, will be completed after the expiration of the 18th of May of 2012.

II. TERM OF EXTINCTION

∗

1. The Concept Term of extinction of a right is the time frame determined by law or by the parties within which a right needs to be exercised (Art. 279 CC). This means that, if the right is not exercised within this time frame, it is extinguished. Example: The legal action of a member of an association demanding the nullification of a resolution of the Meeting of the Members may only be brought within six months from the date of adoption of the resolution (Art. 101 CC).

2. Differences between Prescription and Term of Extinction The basic differences between prescription and term of extinction are the following: A. ‘Prescription’ refers to claims, whereas the ‘term of extinction’ refers to rights. B. If the term of extinction elapses, the right is lost, whereas upon completion of the prescriptive period the claim is weakened but has not been extinguished. C. If the term of extinction is laid down by law,8 the court considers it on its own motion (ex officio), i.e. without the need for the interested party to advance an argument to this effect. As regards prescription, however, it can only be considered by the court if pleaded.

This special kind of time limitation recognized in the Greek law may be translated in English as ‘peremption’ or ‘forefeiture’ (Translator’s note). 8 This, however, is not applicable to the term of extinction laid down by agreement between the parties. ∗

PART THREE JURIDICAL ACTS CHAPTER A THE CONCEPT AND DISTINCTION FROM OTHER SIMILAR CONCEPTS I. GENERAL From all the acts of man some are of interest to the law and others are not. The law is interested in those acts which are directed by the human will and bring about certain changes in the external world, e.g. the purchase of an item, the destruction of an object belonging to another, the injury of a person, the marriage. On the contrary, acts in which the law is not interested are, for example, the social relations and the relations resulting from friendship. The acts which interest the law are distinguished in two categories: the just or lawful ones and the unjust or unlawful. Just or lawful acts are those which are permitted by law and, consequently, bring about legal results (e.g. purchase of an object, marriage). Unjust or unlawful acts are those prohibited by law. Such acts, if enacted, result in unfavorable consequences for the culprit (e.g. the destruction of an object belonging to another, the injury of a person). From among the lawful acts the most important is the juridical act.

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II. THE JURIDICAL ACT

∗

Juridical act is the declaration of the human will which in conjunction, possibly, with other events, is directed towards the production of an intended legal result, e.g. sale or lease of an object, employment contract, loan agreement. Hence, the juridical act does not solely consist of a declaration (or declarations) of the will but, possibly, of other legal happenings as well, necessary for a legal result to come about. Example: For a loan agreement of an amount of money to be concluded, other than the declarations of will of the lender and the borrower (the one that he loans this amount of money and the other that he promises to pay it back after a certain time), physical delivery of the loaned sum is required.

The characteristic feature of the juridical act is that the legal results it generates are the product of the will, i.e. the person or persons who concluded the juridical act wanted those results. Examples: − The legal result of a testament, which is the devolution of the inheritance on the persons designated by the testator, is the result desired by the testator. − In the case of sale of an object the legal results are what the contracting parties wanted, i.e. the transfer of ownership of the object sold from the seller to the buyer and its material delivery to the latter by the former, plus payment of the agreed price.

III. ACTS NOT CONSTITUTING A JURIDICAL ACT There are just and lawful human acts which do not constitute juridical acts. They are the quasi juridical acts and the material acts. 1. Quasi Juridical Acts Quasi juridical acts are the acts which, although containing a declaration of will, are characterized by the fact that the legal results they generate stem directly from the law and do not depend on the will of the person or persons who engaged in them. In the English language, the term ‘legal transaction’ is synonymous with the term ‘juridical act.’ In this text, although an attempt is being made to favor the former in hopes of remaining faithful to the Greek, we often use both interchangeably (Translator’s note). ∗


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Example: When a person settles in a place with the intention of making that place the center of his life relationships, this by law results in the acquisition of a domicile for the person, whether this was the content of his will at the time of settlement or not.

2. Material Acts Material acts are the acts with which the law connects certain results, even though they do not contain a declaration of will. Example: Writing a piece of literature or a musical composition results in granting the author a right over them, the right of intellectual property, even though he may not have been aware that by so doing he acquires such right.

CHAPTER B TYPES OF JURIDICAL ACTS From the several distinctions of juridical acts we will limit ourselves to the following basic ones: I. UNILATERAL JURIDICAL ACTS AND CONTRACTS 1. Unilateral Juridical Acts Unilateral juridical acts are the juridical acts which contain the declaration of will of only one person, as is for example the case in the testament or the offer of an award to be given following a contest. 2. Contracts Contracts are the juridical acts which contain the declarations of will of two or more persons, acting each with a different interest in mind but towards the same legal end. Examples: − In a sale we have the declaration of two wills: the will of the seller and the will of the buyer. Each of them acts out of a different interest (the seller wishes to transfer the ownership of the thing sold and to deliver the same in order to receive payment; the buyer wishes to have the ownership of the thing purchased transferred to him and the thing delivered when he pays the price). However, both seller and buyer pursue the same legal result: the transfer of ownership of a thing and its delivery in exchange for payment. − In an employment contract, where the employee wishes to offer his services and receive his wages and the employer wishes for the employee to offer him his services upon payment of wages, the commonly pursued legal result is the offer of services in exchange for payment of wages.

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The most important distinction of contracts is the distinction in unilaterally obliging and reciprocal. A. Unilaterally Obliging Contracts Unilaterally obliging (or unilaterally charging) contracts are the contracts which create an obligation for the one party and a right for the other, e.g. donation. In the contract of donation the donor has the obligation to deliver the donated thing to the recipient of the donation and the latter has the right to demand the thing given to him as a gift. ∗

B. Reciprocal Contracts Reciprocal contracts are the contracts which create rights and obligations for both parties, i.e. sale. In the sale the seller has the obligation to transfer the ownership of the thing sold to the buyer and to materially deliver the same to him; he also has the right to receive payment. The buyer has the obligation to make the payment and the right to demand the transfer of ownership of the thing sold to him as well as delivery of the same. II. GRATUITOUS AND ONEROUS JURIDICAL ACTS 1. Gratuitous Juridical Acts Gratuitous juridical acts are the acts in which the performance on behalf of the one party is effected without any counter-performance. Examples: Donation (A donates a television set to B), loan for use (A allows B to use his car without a quid pro quo).

2. Onerous Juridical Acts A juridical act is onerous when the performance of the one party towards the other is done on condition of counter-performance. Examples: − Sale (A is obliged to transfer the ownership of a television set to B and deliver it to him and B is obliged to pay to A the amount agreed upon). For the term ‘unilaterally obliging’ (or ‘unilaterally charging’), see below Law of Obligations, Part Three, Ch. A., III, 2 (Translator’s note). ∗

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− Lease of a thing (A is obliged to give B the use of his apartment and B is obliged to pay A the amount of rent agreed upon).

III. JURIDICAL ACTS INTER VIVOS AND MORTIS CAUSA 1. Juridical Acts inter vivos Juridical acts inter vivos are all the juridical acts except for those which are mortis causa. Such are, for example, the sale, the lease of a thing, the employment contract, etc. 2. Juridical Acts mortis causa Juridical acts mortis causa are the juridical acts which generate results upon the death of the person who concluded them, e.g. testament (testament is the instrument through which a person determines the fate of his estate after his death). IV. FORMAL AND INFORMAL JURIDICAL ACTS 1. Formal Juridical Acts A juridical act is formal when a certain type of form is required for its valid conclusion, e.g. it has to be concluded in writing. Sometimes for the valid conclusion of that type of act suffices a private document (e.g. for the constitutive deed and the charter of an association), whereas other times a notarial deed is needed (e.g. for the sale of an immovable). The Greek Civil Code establishes the principle of informality of juridical acts (Art. 158 CC) with formal being the exception. 2. Informal Juridical Acts A juridical act is informal when there are no particular formal requirements for its valid conclusion, e.g. lease of a thing, employment contract. If an informal juridical act is clothed in a certain form, such form will only have evidential value.1

1

See below Ch. C, VII, 2 A, b.

CHAPTER C CONDITIONS FOR THE CONCLUSION OF A VALID JURIDICAL ACT I. GENERAL For the valid conclusion of a juridical act the following conditions need to concur: 1. Capacity for concluding juridical acts. 2. The presence of will, i.e. the will of the party concluding the juridical act. 3. The will of the party concluding the juridical act should be free of defects, i.e. it should not be the result of error as far as the reasons leading up to the shaping of the will are concerned; nor should it be the result of fraud or threat. 4. Agreement of the will and of the declaration of the will, i.e. the declaration of the will should accord with the will. 5. Declaration of the will, i.e. externalization of the will of the party concluding the juridical act. 6. The declaration of the will should be vested the form required by law. 7. The content of the juridical act must be in agreement with the law and with ‘good morals’ (boni mores). II. CAPACITY FOR CONCLUDING A JURIDICAL ACT 1. The Concept Capacity for concluding a juridical act is the capacity of a person to conclude such act in person. This capacity is only held by mature and healthy persons.

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2. Differences between: Legal Capacity, the Capacity to Conclude Juridical Acts, and the Capacity for Delictual Liability The capacity to conclude juridical acts should not be confused with either the legal capacity or the capacity to be held liable for tort/delict (civil wrongdoing). ∗

A. Legal Capacity Legal capacity, as was mentioned earlier,1 is the capacity to enjoy rights and have duties. All persons have this capacity from the time of their birth till the time of their death. B. Capacity for Delictual2 Liability Capacity for delictual liability is the capacity of a person to understand the meaning of his actions, so that he can distinguish between right and wrong. Only when a person who commits an unlawful act can distinguish between right and wrong, can he meet with disapprobation and be considered liable for his action. Because the rule is for every mature and healthy person to be considered capable of causing prejudice to another, the law regulates this capacity by a negative statement, i.e. it determines not who is but who is not capable for delictual liability. According to the Greek Civil Code, the following are incapable of delictual liability, i.e. of being held accountable for tort/delict: a. The minor who has not yet completed the tenth year of age (Art. 916 CC). b. The person who, at the time the prejudice was caused, is proved not to have been conscious of his acts (e.g. on account of drunkenness or high

In translating the Greek words ‘astiko adikima’ (αστικό αδίκηµα), which basically mean civil offense or civil wrongdoing, we use the terms ‘tort’ and ‘delict’ interchangeably to cover both the common law terminology, tort, and the Roman law terminology, delict (from the Latin delictum, delinquere), used in countries whose legal system is based on the Roman trandition (Translator’s note). 1 See above Part One, Ch. A, I. 2 See below Law of Obligations, Part Two, Ch. B, III, 2. ∗


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fever), or to have been in a state of psychological or mental disturbance decisively limiting the functioning of his reason and will (Art. 915, 1 CC).3 c. The minor who has completed the tenth but not the fourteenth year of age, if it is proved that he acted without discretion (Art. 917, 1 CC).4 d. The deaf-mute, if it is proved that he acted without discretion (Art. 917, 2 CC). 3. The Institution of Judicial Assistance A. General To provide a better understanding of the various categories of persons in connection with their capacity to conclude juridical acts, we consider it necessary to present a brief overview of the institution of judicial assistance as a whole. The institution of judicial assistance, which is contained in the Articles 1666-1688 of the Greek Civil Code, belongs to family law5 and was established by L. 2447/1996 which considerably changed the previously existing family law provisions.6 The reason for including judicial assistance in this section is because placing a person under judicial assistance of any kind directly affects his capacity to conclude juridical acts.

3

The person who put himself in the condition of being unconscious of his actions or in a state of psychological or mental disturbance, critically limiting the functioning of his reason and will, by way of use of alcohol or other similar substances (such as drugs), is liable for the prejudice he caused while being in this state, unless he was reduced to that condition without fault on his part (Art. 915, 2 CC). 4 ‘Without discretion’ means that one is unable to evaluate the unlawful character of his action. Example: if minor A, eleven years old, deliberately injures his friend, he has discretion. If the same minor changes the grade he received from 3 to 8, we cannot consider him as having discretion due to the fact that, because of his young age, it is natural for him to believe that altering a document is not something very serious. 5 See below Family Law, Part Seven. 6 Law 2447/1996, which radically and substantially reformed the protection of ailing adults, replaced the institutions of ‘judicial interdiction’ and ‘judicial supervision’ by the unified institution of ‘judicial assistance.’ See Introductory Report of L. 2447/1996, in I. Spyridakis, The Reform of Family Law, 1997, p. 1 et seq.; I. Deliyannis, The Proceedings of the Law Preparatory Committee for the Modification of the Institutions of Adoption and Tutelage, Vol. I, 1993, Vol. II, 1996; A. Koutsouradis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introductory Remarks to Arts. 1666-1688.

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B. Who is Placed under Judicial Assistance The following persons are placed under judicial assistance (Art. 1666 CC): a. Whoever, on account of psychological or mental disturbance or physical disability, is unable (in part or in whole) to take care of his affairs by himself. b. Whoever, on account of prodigality,7 drug addiction, or alcoholism,8 exposes to danger of want himself, his spouse, his descendants, or his ascendants. At this point it should be noted that it is possible for persons serving a sentence which deprives them of their freedom for at least two years to be placed under concurrent judicial assistance in part,9 but only if they request it themselves and solely for the acts they would have themselves specified10 in their request (Art. 1688 CC). C. The Procedure For a person to be placed under judicial assistance a court decision is required, following a request made by the patient himself11 or his spouse − if he happens to be married − or his parents or children or the public prosecutor or the court ex officio (Art. 1667 CC). It is worth emphasizing that the possibility for the court to place someone under judicial assistance ex officio is an important innovation introduced by L. 2447/1996 because it helps protect those individuals who are not cared for, either because there is no spouse or close relatives, or because of indifference.12

7

Prodigal is the person who spends aimlessly and disproportionately to his means. It is not necessary for alcoholism or drug addiction to be a chronic condition. It is sufficient that the dependency of the person on alcohol or drugs be demonstrated. See Th. Papachristou, Manual of Family Law, 2nd ed., 1998, p. 368; Koutsouradis, op. cit., Art. 1666, No 31. 9 Regarding the results of concurrent judicial assistance in part, see below Ch. C, II, D, b, bb. 10 With this arrangement the anachronistic institution of ‘legal interdiction,’ which had been severely criticized both on the grounds of its legal purposefulness and its constitutionality, was abolished (see Introductory Report of L. 2447/1996, in I. Spyridakis, The Reform…, 1997, p. 73; Koutsouradis, op. cit., Art. 1668). 11 When the person is only physically disabled, the court decides solely upon the disabled person’s own petition (Art. 1667, 2 CC). 12 See P. Agallopoulou, The Impact of One Spouse’s Mental Disturbance on the Marriage, 1995, p. 109. 8


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In view of the fact that the institution of judicial assistance is based on the respect for the personality and the dignity of the patient, no matter how severe his condition may be, the law lays down the following provisions: -

-

when deciding on placing someone under judicial assistance and appointing a judicial assistant for him, the court will take into account the report of the appropriate social services regarding the necessity of the measure and the appropriateness of the person to be appointed as judicial assistant (Art. 1674 CC); when placing a person under judicial assistance the court hearing is held behind closed doors (Art. 802, 3 CCPr); before deciding on placing a person under judicial assistance the court should seek a personal communication with that person and take into account the person’s own opinion. This is so because, as the Article 1684 of the Greek Civil Code clearly states, the court decision must have the patient’s interest in view.

Finally, it should be noted that the court decision placing a person under judicial assistance appoints the person’s judicial assistant. D. The Consequences of Placement under Judicial Assistance Depending on the case, the court is free to decide to place a person under privative judicial assistance (in whole or in part) or under concurrent judicial assistance (in whole or in part) or combine the two (Art. 1676 CC). More specifically: a. Privative judicial assistance aa. In whole When a person is placed under privative judicial assistance in whole,13 he is incapable of concluding any juridical act in his own name. Instead, the judicial assistant, who is his legal representative, acts on his behalf complying with the formalities required by law.14

13

The placement of the judicially assisted person under a regime where he is fully deprived of his capacity to conclude juridical acts must be expressly stated in the court decision (Art. 1678, 1 CC). 14 See Art. 1682, para. 1 of the Greek Civil Code.

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bb. In part If a person is placed under privative judicial assistance in part, he is incapable of concluding in person only certain juridical acts, as specified in the court decision instituting his placement under judicial assistance.15 The juridical acts a person is declared incapable of concluding are concluded by his judicial assistant who, in this particular instance, acts as his legal representative. Naturally, the formalities required by law need to be complied with at all times.16 b. Concurrent judicial assistance aa. In whole When a person is placed under concurrent judicial assistance in whole, for all the juridical acts he concludes to be valid the consent of his judicial assistant is needed.17 bb. In part When a person is placed under concurrent judicial assistance in part, the consent of his judicial assistant is required for certain juridical acts, as specified in the court decision.18 c. Combination of privative and concurrent judicial assistance It is possible for the court to place the person under judicial assistance that combines both the privative and the concurrent types, by expressly stating in which acts the assisted person cannot engage in propria persona, but needs to be represented by his judicial assistant, and in which acts he cannot engage without the consent of his judicial assistant (Art. 1679, 1 CC). 15

If the court decision does not specify the juridical acts the assisted person is incapable of concluding, he cannot conclude those juridical acts that the tutor of a minor is prevented from concluding without the permission of the court (Art. 1678, 2 CC). Such are, for example, the sale of an immovable or of a commercial, industrial, or other enterprise; loan agreements (see Art. 1624 CC). 16 See Art. 1682, para. 1 of the Greek Civil Code. 17 Consent is the permission given before the conclusion of the juridical act or during its conclusion (see below Ch. G, II, 6, footn. 10). 18 If the court decision does not specify in which juridical acts the assisted person may not engage without the consent of his assistant, he is incapable of engaging in those acts that the tutor of a minor may not engage without the court’s permission (Art. 1678, 2 CC). Such are, for example, the sale of an immovable or of a commercial, industrial or other enterprise; loan agreements (see Art. 1624 CC).


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E. Lifting of the Judicial Assistance If the reasons on account of which the judicial assistance was decided are no longer present, such assistance may be lifted by a court decision upon the request of the persons who are entitled to do so, or even by the court ex officio (Art. 1685, 1 CC). 4. Distinctions of Persons Based on their Capacity to Conclude Juridical Acts. From the point of view of concluding juridical acts there are three categories of persons: -

those fully capable of concluding juridical acts those fully incapable those having limited capacity

A. Fully Capable of Concluding Juridical Acts Fully capable of concluding any juridical act are those who have completed the eighteenth year of age, i.e. the persons who have reached majority (Art. 127 CC), provided that no reason exists for them to be deprived of their capacity to conclude juridical acts. For the computation of one’s age the day of the person’s birth is also taken into account (Art. 241, 2 CC).19 For example, A, who was born on May 15, 1990, will reach majority on May 15, 2008. B. Fully Incapable of Concluding Juridical Acts Those fully incapable of concluding juridical acts are divided into two categories: the absolutely incapable and the relatively incapable. a. Absolutely incapable Absolutely incapable of concluding juridical acts are the persons who are totally incapable of concluding any juridical act. In this category belong those who have not yet completed the tenth year of age and the persons who are placed under privative judicial assistance in whole (Art. 128 CC).

19

See below Ch. F, II, 3, C.

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More specifically: aa. Minors who have not yet completed the tenth year of age. If such minors conclude a juridical act, it will be null and void. The juridical acts of these persons are concluded by their legal representatives who need to act according to the formal requirements, if any, laid down by law. The minors’ legal representatives are their parents, since in principle the parental care belongs to the parents jointly (Art. 1510, 1 CC). bb. Persons under privative judicial assistance in whole. As was earlier mentioned,20 when a person is placed under privative judicial assistance in whole, he is incapable of concluding any juridical act in his own name. The judicial assistant acts in his stead as legal representative, with the formal requirements laid down by law complied with at all times. Consequently, all the juridical acts concluded by the assisted person in propria persona during the entire period of duration of the privative judicial assistance in whole are null and void, even if it is proved that at the time of the conclusion of the particular juridical act he was fully conscious of its meaning (e.g. because the transaction was insignificant, or because the health of the psychologically disturbed person had been restored but the state of privative judicial assistance in whole under which he had been placed had not yet been lifted). Example: A, who was under privative judicial assistance in whole due to psychological disturbance, sold an immovable of his to B. The sale is null and void even if it is proved, via a medical certificate, that at the time A concluded the sale with B he had been restored to health and, consequently, he was conscious of his actions. As long as the court judgment placing A under privative judicial assistance in whole is not reversed, all of A’s transactions are null and void. The transfer of the real estate property from A to B would have been valid if it had been concluded between A’s judicial assistant and B, with the formalities stipulated by law always complied with.

b. Relatively (or temporarily) incapable Relatively (or temporarily) incapable of concluding a juridical act are the adults who, although not placed under privative judicial assistance in whole, nevertheless, at the time of conclusion of a particular transaction, are either not conscious of their actions, or in a state of psychological or

20

See above Ch. C, II, 3, D, a, aa.


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mental disturbance decisively limiting the functioning of their will (Art. 131, 1 CC). More specifically: aa. a person is not conscious of his actions when, during a certain limited period of time, he cannot understand the meaning of the acts in which he engages, e.g. because of high fever, drunkenness, or the use of drugs; bb. a person is in a state of psychological or mental disturbance, critically affecting the function of his will, when his ability to objectively evaluate reality is significantly reduced.21 In the above cases the person has relative inability to conclude juridical acts because the inability to conclude such acts exists only when it is proved that, during the conclusion of a specific juridical act, a reason exists on account of which the person is prevented from freely shaping his will or from realizing the consequences of his declaration of will. If despite this relative (temporary) inability a person concludes a juridical act, the latter will be null and void (Arts. 131 and 171 CC). This provision of the law is for those who are not conscious of their acts temporarily as well as for those who suffer from a certain psychological or mental disturbance but have not been placed under privative judicial assistance in whole (either because nobody started the process or because, even though the process has begun, the court decision has not yet been pronounced). Example: A, who was not conscious of his actions on account of drunkenness, sold his stereo equipment to B for 10 euros. If the above mentioned stipulation did not exist (Art. 131 CC), B would acquire ownership of the stereo equipment and A would be deprived of the same receiving an insignificant amount of money in exchange. But, because this stipulation exists and the transaction is null and void, the court will consider the transaction as never having taken place; thus the stereo equipment will remain in A’s hands.

c. The difference between absolute and relative incapacity Those characterized as absolutely incapable, cannot conclude any juridical act. If despite this prohibition they do, the juridical act is null and

21

See Introductory Report of L. 2447/1997, in Spyridakis, The Reform…, op. cit., p. 76.

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void regardless of whether in the specific case they were conscious of the act they were concluding. Those relatively incapable of concluding juridical acts are persons who, while generally capable of concluding juridical acts, at the time of conclusion of the specific juridical act, it was proved that they were either not conscious of their actions, or in a state of psychological or mental disturbance critically limiting the functioning of their will. Such transactions will be null and void. Examples: A, while in a state of psychological disturbance, sells an immovable property of his to B. − If A is under privative judicial assistance in whole, the transaction he concluded with B is null and void even if it is proved that during its conclusion A was fully conscious of his actions because he had recovered. This is so because, as was mentioned earlier, the mere fact that a person is under privative judicial assistance in whole results in his inability to conclude any juridical act. This inability lasts until the privative judicial assistance in whole is lifted by a court decision. − If A had not been placed under privative judicial assistance in whole (either because a petition was never filed − in order for the process to begin − or because it was filed but the court decision has not yet been pronounced), the transaction between A and B is null and void only if it is proved that, during the time of the conclusion of the transaction, he did not have the capacity of objectively evaluating reality.

C. Limitedly Capable of Concluding Juridical Acts The persons who have limited capacity to conclude juridical acts are capable of entering into legal transactions only in the cases specified by law or only if the terms required by law are being complied with (Art. 133 CC). According to Article 129 of the Greek Civil Code, are of limited capacity to conclude juridical acts those who have completed the tenth but not the eighteenth year of age,22 those under privative judicial assistance in part, and those under concurrent judicial assistance. At this point it should be added that of limited capacity are also those who, according to Article 1676 of the Greek Civil Code, have been placed under privative judicial assistance in combination with concurrent. 22

The exception provided by law regarding the completion of the time leading up to majority (Art. 241, 2 CC), i.e. the inclusion of the day of birth in the computation, is applicable to the calculations made for any age. For example, A, who was born on May 15, 1998, will be ten years old on May 15, 2008. See above Ch. C, II, 4, A, and below Ch. F, II, 3, C.


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More specifically: a. Minors having completed the tenth year of age Of limited capacity for concluding juridical acts due to the fact that they are minors are the following: aa. The minor who has completed the tenth year of age is capable of concluding the following juridical acts: 1) juridical acts from which he only draws lawful benefits (Art. 134 CC), e.g. the acquisition of an object by reason of donation, in which case he is not burdened with any obligation; 2) juridical acts he concludes as the representative of another (Art. 213 CC).23 bb. The minor who has completed the twelfth year of age is capable of appearing in court in person during the hearing of the case of his adoption and consenting to it, i.e. expressing his opinion of agreement regarding his adoption (Art. 1555, 1 CC). cc. The minor who has completed the fourteenth year of age may freely dispose of his earnings derived from his personal labor or what was freely given to him (Art. 135 CC), such as allocation, clothing, books, toys, etc. dd. The minor who has completed the fifteenth year of age may enter into an employment contract as an employee,24 provided that the persons charged with his care, i.e. in principle both his parents jointly,25 consent to it (Art. 136, 1 CC). Example: A, fifteen years of age, may enter into an employment contract as an employee and work for B who has a car repair business. For this legal transaction to be valid the law requires that the persons charged with A’s care, i.e. in principle both his parents jointly, consent to it.

23

See below Ch. G, I, 3, D. The original Article 136 of the Greek Civil Code, which set the age limit at fourteen, has been modified by L. 1329/1983 in order for the Civil Code to be brought into harmony with the lower age standard for starting work set by the International Labor Convention No 138/1973, ratified in Greece by L. 1182/1981. 25 In principle, the care of a minor belongs to both parents jointly (Art. 1510, 1 CC). However, it is possible for it to be entrusted to one parent only (Art. 1510, 2 & 3, CC), or to a tutor (Art. 1589 CC). 24

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The consent required by law is general, i.e. permission is not required for every employment contract into which the minor enters. Example: Having obtained his parents’ general consent, A enters into an employment contract with B, owner of a car repair business, to work as an employee. After a certain time, when A is no longer employed by B, he may enter into an employment contract with a new employer, e.g. C, who owns a business of electrical appliances, without needing a new consent on the part of his parents.

If the persons charged with the care of a minor refuse to consent, i.e. they do not give the minor permission to enter into an employment contract, the minor may submit a petition to the court which, after hearing the arguments of such persons, decides on the issue along the guidelines of the minor’s interest (Art. 136, 2 CC). One question may be raised: how is it possible that a minor who has completed the fourteenth year of age may dispose of his earnings derived from work, when he can conclude a valid employment contract only after he has completed fifteen years of age? Indeed, the minor who has not completed fifteen years of age can not conclude an employment contract; but he can earn money from occasional employment or from an employment contract concluded on his behalf by his legal representatives (i.e. his parents or his tutor) with regard to work permissible to a minor below the age of fifteen.26 ee. Exceptionally,27 the minor who is married may engage in propria persona in certain transactions specified by law (Art. 137 CC). Such are the transactions necessary for the maintenance or improvement of his property, the transactions necessary for the purpose of meeting the needs of his personal sustenance and education, as well as those needed for the current needs of his family. 26

There are exceptions where the age limit may be set between thirteen and fifteen years of age as, for example, when the work is light or connected with the professional education of the minors. See A. Karakatsanis – S. Gardikas, Individual Labor Law, 5th ed., 1995, p. 109. 27 The conditions laid down by law for a valid marriage are that both future spouses must have completed the eighteenth year of age (Art. 1350, 2 CC). This age limit, which coincides with the age of majority, must be completed by both future spouses by the day the marriage is performed. Exceptionally, the court, after hearing the future spouses and the persons charged with their care, may allow the marriage even before the completion of that age, if its performance is necessary due to an important reason. See below Family Law, Part One, Ch. A, 2.


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In case a minor with limited capacity to conclude juridical acts enters into a legal transaction for which the law does not specify that he may (e.g. sale of an immovable by a minor sixteen years of age, or employment contract by a minor less than fifteen years of age), or if he enters into a transaction for which he does have the legal age but has not complied with the terms laid down by law for its valid conclusion (e.g. employment contract concluded by a minor above the age of fifteen without the consent of the persons charged with his care), the juridical act is null and void, i.e. it does not generate any legal effect.28 Those juridical acts are concluded on behalf of the minors by their legal representatives in accordance with the formal requirements, if any, stipulated by law. As was mentioned earlier, the legal representatives of the minors are their parents, if they have the parental care, since in principle the parental care is exercised by both parents jointly (Art. 1510, 1 CC). b. Persons under privative judicial assistance in part As was already mentioned,29 if a person was placed under privative judicial assistance in part, he is incapable of concluding in propria persona certain juridical acts specified in the relevant court decision which placed him under this status. For all other juridical acts the person is fully capable. Consequently, the juridical acts a person concludes in propria persona for the entire duration he is under privative judicial assistance in part are null and void if they belong to the category of legal transactions for the conclusion of which the particular person has been declared incapable. This nullity is not reversed even if it is proved that, at the time the person was entering into the particular transaction, he was fully conscious of its meaning. Example: A is under privative judicial assistance in part on account of psychological disturbance and the relevant court decision has specified that he is incapable of transferring ownership over his real estate in propria persona. In spite of this, A sold an immovable of his to B. This sale is null and void even if it is proved that at the time of the sale A was fully conscious of his actions. This is so because, as long as the privative judicial assistance in part has not been lifted by a court decision, the juridical acts A concludes are null and void, if they happen to be of the kind for the conclusion of which A has been declared incapable. Such juridical acts would only be valid if they were concluded between 28 29

See below Ch. E, II, 1. See above Ch. C, II, 3, D, a, bb.

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A’s judicial assistant and B, provided that the formalities stipulated by law are complied with.

c. Persons under concurrent judicial assistance In this case it is necessary to distinguish between concurrent judicial assistance in whole and in part. aa. Concurrent judicial assistance in whole When a person has been placed under concurrent judicial assistance in whole, for all his transactions to be valid the consent of his judicial assistant is required. Consequently, all the juridical acts such a person concludes during the entire time he is under concurrent judicial assistance in whole without the consent of his judicial assistant are null and void, regardless of whether during their conclusion he was fully conscious of his actions or not. Example: A, who is under concurrent judicial assistance in whole because of substance abuse, sold his immovable to B without the consent of his judicial assistant. The sale is null and void even if it is proved that, at the time of the sale of the real estate, A was fully conscious of his actions.

bb. Concurrent judicial assistance in part If a person is placed under concurrent judicial assistance in part, for the conclusion of certain juridical acts, specified in the court decision, the consent of his judicial assistant is required. For all other transactions the person is fully capable. Consequently, the transactions such a person enters into during the entire duration of the concurrent judicial assistance in part without the consent of his judicial assistant are null and void if they happen to be of the kind for the valid conclusion of which the judicial assistant’s consent is required. Example: A is under concurrent judicial assistance in part on account of substance abuse and according to the court decision he is not capable of selling his enterprises without the consent of his judicial assistant. If, in spite of this, he sells his enterprises without the consent of his judicial assistant, the sale is null and void, even if it is proved that, when the sale took place, A was fully conscious of his actions.


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d. Persons under privative judicial assistance in combination with concurrent It is possible for a person to be placed under a combination of privative and concurrent judicial assistance. Naturally, this combination can occur only if both the privative and the concurrent judicial assistance are in part. In such case the court decision specifies which juridical acts the particular person is incapable of concluding and which he may conclude with the consent of his judicial assistant. For all other transactions the person is fully capable. Consequently, all the legal transactions the person entered into without complying with the terms specified in the court decision − and this throughout the entire time he was placed under this type of judicial assistance − are null and void. Example: A was placed under a combination of privative and concurrent judicial assistance and more specifically he was declared incapable of selling his immovable property, whereas for leasing it he had to obtain the consent of his judicial assistant. If, in spite of this, A in propria persona sells one immovable property and leases another without the consent of his judicial assistant, these juridical acts are null and void, even if it is proved that during their conclusion he was conscious of his actions.

e. The difference between the limited capacity for juridical acts of minors having completed the tenth year of age and persons who have been placed under privative judicial assistance in part, concurrent judicial assistance, or a combination of privative and concurrent The minors having completed the tenth year of age are in principle incapable of concluding juridical acts. Only exceptionally are they capable of entering into legal transactions in the cases specified by law. The persons placed under privative judicial assistance in part, concurrent judicial assistance, as well as under a combination of privative and concurrent judicial assistance, are in principle capable of concluding juridical acts. Exceptionally, however, and depending on the type of judicial assistance they have been placed under, the following may happen: -

they may not conclude certain juridical acts in propria persona (privative judicial assistance in part); they may not conclude all or certain juridical acts without the consent of their judicial assistant (concurrent judicial assistance); they may not conclude certain juridical acts in propria persona, whereas for others they may not conclude them without the consent

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of their judicial assistant (combination of privative and concurrent judicial assistance). III. WILL TO CONCLUDE A JURIDICAL ACT For a juridical act to be concluded the will of the person who enters into it is necessary. ‘Will’ means the volition of a person to generate legal results with a specific declaration. IV. WILL FREE OF DEFECTS Will free of defects means that the will of the person concluding a juridical act must not have been formed in a defective way, i.e. it must not result from error as regards the reasons leading up to the shaping of the will, fraud, or threat. 1. Error in the Reasons Leading up to the Shaping of the Will A. The Concept Error is the ignorance or incorrect knowledge of reality. There are two kinds of error: error in the reasons leading up to the shaping of the will (error in the will) and error in the declaration of the will. The error which contributes to the formation of the defective will is error in the reasons leading up to the shaping of the will. Error in the reasons leading up to the shaping of the will is the ignorance or incorrect knowledge of reality resulting in the shaping of the will in a manner it would not have been shaped had the person known the real situation. Examples: − A bought B’s apartment, erroneously believing that his application to the National Bank for a home loan was approved. − A bought a luxurious car from car dealership ‘K’, erroneously believing that he had won a large amount of money in the lottery.

B. Distinctions Error in the reasons leading up to the shaping of the will is of two kinds: essential and non-essential.


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In principle, the error in the reasons leading up to the shaping of the will is non-essential, because the motives affecting a person’s decision are immaterial to the law. Exceptionally, when the error in the reasons leading up to the shaping of the will refers to properties of the person or the object, it may be considered essential. 30 31 Error based on the properties of the person or the object is considered essential if, according to the agreement of the parties or on the basis of good faith and business usage, these properties are so important for the whole juridical act that, had the person known the real situation, he would not have engaged in the transaction (Art. 142 CC). Examples: − A employed B believing that she has excellent computer skills, whereas B did not have any such skills (essential error in the properties of the person). − A bought a painting believing that it is the original work of a famous painter, whereas it was simply a copy (essential error in the properties of the object).

C. Consequences a. Essential error If the error in the reasons leading up to the shaping of the will is essential, as is the case with error in the properties of the person or the object, the juridical act that was concluded on account of this error is not null and void but voidable, i.e. it may be annulled by a court decision.32

30

Regarding the error referring to properties of the person or the object, several views have been advanced (see G. Balis, General Principles of Civil Law, 8th ed., 1961, para. 42, p. 134; I Karakatsanis, in Georgiadis – Stathopoulos, Commentary on Civil Law, Art. 142, No 1; Papantoniou, op. cit., p. 369 et seq.; Spyridakis, op. cit., p. 596 et seq.; Simantiras, op. cit., p. 542 et seq.). We follow the view we believe to be the most accurate, i.e. the view accepting that error in the properties of the person or the object is an error in the reasons leading up to the shaping of the will. (See Gazis, op. cit., Vol. C, 1973, p. 63; A. Litzeropoulos, “The Articles 173 and 200 of the Civil Code and the Cassation Review for False Interpretation of a Juridical Act,” in Honorary Volume for the 125th Year of the Court of Cassation ‘Areios Pagos,’ 1963, p. 544, note 238; F. Doris, Introduction to Civil Law, Vol. B1, 1991, p. 165; Ap. Georgiadis, General Principles, op. cit., p. 511 et seq.; P. Filios, General Principles of Civil Law, Vol. B, 2002, p. 100). 31 Another exception can be found in the Law of Succession where the testament based on erroneous reasons is voidable. See below Law of Succession, Part One, Ch. F, II. 32 See below Ch. E, III.

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The right to seek the annulment of the juridical act belongs to the one who was in error or to his descendents (Art. 154 CC). Examples: − If A employed B believing that she has excellent computer skills, whereas she had no computer skills at all, the employment contract between A and B may be annulled because, had A known that B is computer illiterate, he would not have employed her. Consequently, A may bring action against B and demand that the employment contract concluded with her be annulled. − If A bought a painting from B believing that it is the original work of a famous painter, whereas it is simply a copy, the transaction between A and B may be annulled because, had A known the real situation, he would not have entered into this legal transaction. Consequently, A may bring action against B demanding for the sale contract he concluded with him to be annulled.

The right of the person who was in error to lodge action for the annulment of the legal transaction is extinguished after two years from the time of the conclusion of the transaction (Art. 157, 1 CC). It is the case of a term of extinction of a right which begins running on the day following the conclusion of the juridical act. If the error in the reasons leading up to the shaping of the will continued even after the conclusion of the transaction, the two year period begins to run from the time the situation ceased to exist (Art. 157, 2 CC). Example: If A discovered that B had no idea of computers one month after she was employed, or that the painting is simply a copy and not the original work one year after the purchase, the two year time period for annulment begins to run one month after the conclusion of the employment contract in the first case and one year after the sale contract in the second.

However, in no case is it possible for the legal transaction to be annulled if twenty years have passed since its conclusion (Art. 157, 3 CC). Once again it is the case of a term of extinction of a right which begins to run on the day following the transaction. Finally, the party demanding the annulment of the transaction by reason of essential error is obliged to compensate the other for the damages he sustained because of believing that he had concluded a valid legal transaction (Art. 145, 1 CC). b. Non-essential error If the error in the reasons leading up to the shaping of the will is nonessential, it does not lead to annulment of the transaction.


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Example: A, who bought B’s apartment, erroneously believing that the home loan he had applied for to the National Bank was approved, cannot demand the annulment of his transaction with B on the grounds of error in the reasons that prompted his will. Thus, the legal transaction concluded between A and B is perfectly valid.

2. Fraud A. The Concept Fraud is the deliberate behavior aiming at misguiding a person so as to lead him to a declaration of will that he would not have otherwise made. Examples: − A, after having misleadingly reassured B that his piece of land would soon be included in the City Plan, succeeded in selling it to him for 115,000 euros, when its real value was only 75,000 euros, i.e. A caused B to pay for the land the amount of money it would have been worth if indeed it were to be part of the City Plan. − A, having misleadingly persuaded B that the painting he was selling him was the original of a great painter, when it was only a copy, sold the painting to him for what the original would have been worth and not at the value of the copy.

The juridical act concluded on the basis of fraud is not null and void but voidable,33 i.e. it does generate its legal results but may be annulled by a court judgment (Art. 147, 1 CC). B. Conditions For a transaction to be annulled due to fraud the following conditions need to concur: a. There needs to exist intent to defraud. Intent to defraud exists when one person, being aware of the inaccuracy of the facts he presents, nevertheless wishes to deceive the other so as to lead him to a certain declaration of will. Examples: − A, although aware of the fact that his piece of land won’t be included in the City Plan, lied to B in order to convince him to purchase it. − A, although aware of the fact that the painting is a copy and not the original work of a great painter, lied to B in order to persuade him to buy it.

33

See below Ch. E, III.

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b. Real misleading must have taken place. Real misleading exists only when, because of the fraud committed by one person,34 the other party was led to form his will the way the culprit wanted him to. Examples: − Because of A’s fraud, B purchased A’s piece of land which was not included in the City Plan at a price he would have paid if it were included. − Because of A’s fraud, B purchased from A the copy of the original painting at the price he would have paid for the original.

C. Consequences When the above conditions concur, the juridical act concluded is voidable, i.e. it may be annulled. The person who was defrauded has the right to demand the annulment of the legal transaction concluded. For this purpose, either he or his heirs may bring action against the party who engaged in fraud (Art. 154 CC). The court, after conducting an investigation of the facts, will pronounce judgment declaring the transaction concluded under conditions of fraud null and void. The right of the defrauded party to bring action in order to annul the legal transaction is extinguished after two years from the conclusion of the transaction (Art. 157, 1 CC). It is the case of a term of extinction of a right35 which begins to run on the day following the conclusion of the transaction. If the deception continues past the conclusion of the transaction, the term of two years begins to run from the time the conditions of deception ceased to exist (Art. 157, 2 CC). Example: If B discovered that the piece of land will not be included in the City Plan one year after the purchase, or that the painting is a copy and not the original work of art five years after the purchase, the term of two years begins from the time B discovered the truth, i.e. one year later for the land and five years later for the painting.

In no case is it possible for the transaction to be annulled if twenty years have passed since its conclusion (Art. 157, 3 CC). Here, too, it is the case of a term of extinction of a right which begins the day after the conclusion of the legal transaction.

34

It is possible for fraud to be committed either by the party to whom the declaration of will is directed, or by a third party. Regarding the issue of fraud by a third party, see Art. 147, para. 2 of the Greek Civil Code. 35 See above Part Two, Ch. F, II, 4.


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Example: If B discovers the fact that the painting he purchased from A is not the original but a copy twenty two years after the conclusion of the sale contract, the transaction with A cannot be annulled.

Finally, the victim of the fraud has the right, in addition to the annulment of the transaction, to demand compensation from the party who committed the fraud (Art. 149 CC). 3. Threat A. The Concept Threat is the exercise of psychological violence,36 i.e. the act of instilling fear in the other person by way of announcement of an evil depending on the will of the person who makes such announcement. The threat aims at making the person to whom it is addressed proceed with a certain declaration of will. Examples: − A threatened B that, if he doesn’t sell him his house – worth 60,000 euros – at the price of 30,000 euros, he will kill him. Following this threat, B entered into a sale contract with A whereby he indeed sold A his house at the price of 30,000 euros. − A threatened B, owner of a chain of restaurants, that, unless he gives him his gold watch as a gift, he will report him to the Market Police Inspection Department for his violations. Subsequently, B gave his watch to A as a gift.

The juridical act concluded under conditions of threat is not null and void but voidable, i.e. it may be annulled.37 As such it does generate its legal effects but may be annulled by a court decision (Art. 150 CC). B. Conditions For a juridical act to be annulled on account of threat the following conditions need to concur:

36

In the case of physical violence, the person against whom such violence is exercised does not have a will of his own because he is simply acting as the organ of the other person. In this case there is no will to be declared; consequently, the transaction is null and void (see Gazis, op. cit., p. 85; Papantoniou, op. cit., p. 414; Spyridakis, op. cit., p. 624; Simantiras, op. cit., pp. 514 and 571; Doris, op. cit., p. 166, footn. 62; Ap. Georgiadis, General Principles, op. cit., p. 524; Filios, op. cit., p. 119). 37 See below Ch. E, III.

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a. The threat must have been exercised unlawfully and in a manner contrary to the principles of ‘good morals’ (Art. 150 CC). Examples: − A threatened to kill B if he would not give him his car as a gift or sell him his home at a very low price (threat unlawfully exercised). − A threatened to report B for his market police violations or for his burglary of C’s home, if B would not give A his car as a gift (threat exercised in a manner contrary to the principles of ‘good morals’).

b. The threat should be such that can instill fear in a reasonable person (Art. 151 CC). Examples: − A’s threat to kill B if the latter does not give him his car as a gift, does instill fear in a reasonable person. − A’s threat to get mad at B if the latter does not give him his car as a gift, does not instill fear in a reasonable person.

c. The threat should be such that could expose to serious and imminent danger the life, physical integrity, freedom, honor, or property of the person threatened or the persons closely connected with him (Art. 151 CC). Example: A threatened to kill B (or B’s son) if B would not give A his farm as a gift.

d. Because of the exercise of threat, the person threatened must have been led to make the declaration of will desired by the person who made the threat. Examples: − A threatened to kill B if the latter would not give him his car as a gift. Because of A’s threat, B donated his car to A. The juridical act between A and B is voidable. − A threatened to kill B because of the latter’s irritability often causing serious incidents in the village where they live. B got scared, sold his house in the village to C, and moved to the next town. The sale of B’s house to C is valid because A’s threat against B did not aim at the conclusion of the specific transaction between B and C.

C. Consequences When the above mentioned conditions concur, the juridical act concluded is voidable. The threatened party is entitled to demand the annulment of the transaction by bringing action (himself or his heirs) against the party who threatened him (Art. 154 CC). The court, following an


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investigation of the facts, issues a decision pronouncing the transaction concluded under conditions of threat null and void. The right of the threatened party to claim annulment of the transaction is extinguished at the expiration of two years from the conclusion of the transaction (Art. 157, 1 CC). In this instance, too, we have a term of extinction of a right38 which begins to run the day after the transaction is concluded. If the threat continues after the conclusion of the legal transaction, the term of two years begins to run after the situation ceased to exist, i.e. after the psychological violence stopped. However, in no case is it possible for the transaction to be annulled if twenty years have passed since its conclusion (Art. 157, 2 and 3 CC). Once again it is the case of a term of extinction of a right which begins to run the day after the conclusion of the transaction. Finally, the person threatened, in addition to the annulment of the transaction, is entitled to demand compensation from the other party who threatened him (Art. 152 CC). V. CONVERGENCE OF WILL AND DECLARATION For a valid legal transaction to be concluded the declaration of the party and his will need to converge, i.e. the declaration of the will and the will need to be one and the same. If there is discrepancy between will and declaration of the will, we distinguish between intentional and unintentional discrepancy. If the discrepancy between the will and the declaration of the will is intentional, we have a case of simulated juridical act or of simulation, whereas if it is unintentional we have error. 1. Simulated Juridical Acts A. The Concept The declaration of the will is simulated when the person making it is aware that such declaration does not correspond to his real will. According to the definition of the Greek Civil Code, simulated is the declaration of the will which was not seriously intended but was only made in pretense (Art. 138, 1 CC). 38

See above Part Two, Ch. F, II and below Part Three, Ch. F, II, 4.

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Examples: − A simulates a sale of his real estate property to B, whereas in reality he did not wish to sell it. − A simulates a sale of his real estate property to B, when in reality he wished to give it to him as a gift.

B. Distinctions There are two kinds of simulation, absolute and relative. a. Absolute simulation Absolute simulation exists when there is no other transaction latent in the juridical act. Example: A, who had many debts and was afraid that his creditors would attempt to satisfy their claims from his real estate property (i.e. attach his property and subsequently auction it), made a simulated sale of his sole immovable to B, so that it appears that A no longer owns any real estate. In this case there is no other transaction latent in the sale contract. The only purpose for the sale was to protect A’s assets from being sold by the creditors.

b. Relative simulation Relative simulation exists when latent in the juridical act there is another transaction. Example: Upon retirement from dentistry, A wanted to give the equipment of his office to B as a gift. However, in order to avoid facing the discontent of his relatives, he simulated a sale contract with B. In this case beneath the simulated transaction (sale), there exists another transaction (donation).

C. Consequences a. Absolute simulation In the case of absolute simulation the simulated juridical act is null and void (Art. 138, 1 CC), i.e. it does not generate any result. b. Relative simulation In the case of relative simulation, the simulated juridical act is null and void but the transaction underlying the simulated act is valid, provided that the parties willed it and the conditions required for it are met (Art. 138, 2 CC).


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Example: In the above example the sale by A to B of the equipment of the dental office is simulated and, consequently, null and void. The underlying donation will be valid only if both parties willed it and the conditions required by law for its conclusion were met. For donation the law requires a notarial deed. But in the case of donation of a movable object without a notarial deed, the donation is valid if the donor delivered the object to the donee (Art. 498 CC). Consequently, in this particular case the underlying simulated transaction will be valid only if a notarial act was executed or if A delivered the equipment of his dental office to B. If the simulated sale transaction regarding the dental equipment was concluded informally or with a private contract and A has not actually delivered the equipment to B, the underlying transaction is null and void.

2. Error as to the Declaration A. The Concept When the lack of convergence of will and declaration is not intentional but unintentional, there is error as to the declaration of the will. As was earlier mentioned,39 error is the ignorance or incorrect knowledge of reality. There are, as already stated,40 two kinds of error: error in the reasons leading up to the shaping of the will and error in the declaration. Error in the declaration exists when the ignorance or incorrect knowledge of reality results in a declaration of will which is not in accordance with the real will of the declarant. B. Distinctions Error in the declaration may be essential or non-essential. a. Essential error Essential error exists when it refers to a point of such importance for the whole legal transaction that, if the person knew the true situation, he would not have concluded the transaction (Art. 141 CC). Examples: − In a letter, A (a farmer) proposed to B (a merchant) to sell him 5,000 kilos of grain for x amount of euros per kilo, whereas what he wanted to write was 500 kilos. B replied that he accepts and the contract between A and B was concluded for 5,000 kilos. 39 40

See above Ch. C, IV, 1, A. See above Ch. C, IV, 1, A.

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− In a letter, A asked B if he wanted to buy his car for 550 euros, whereas he wanted to write 5,500 euros. B replied that he accepts and the sale contract between A and B regarding the car was concluded for 550 euros. In the above examples there is essential error of A because, if A knew what he was writing (in the first case concerning quantity and in the second concerning price), he would never have wanted to conclude the respective transactions.

b. Non-essential error Non-essential error is the error concerning minor issues in the transaction. Example: In a letter, A asked B if he wants to buy his car for 2,500 euros when he actually wanted to write 2,600 euros. B replied that he accepts and the contract for the sale of the car was concluded at the price of 2,500 euros. The mistake that A made may not be considered essential because the difference in price (between what A proposed and what he was thinking) is very slight.

C. Consequences a. Essential error The transaction concluded because of essential error is not null and void but voidable, i.e. it may be annulled.41 The party who was in error (or his heirs) has the right to demand the annulment of the act by bringing the appropriate action (Art. 154 CC). The right of the person in error to bring action seeking the annulment of the legal transaction is subject to a two year term of extinction from the conclusion of the transaction (Art. 157, 1 CC). This is a time limit for the exercise of a right − past which the right will be extinguished − which begins to run the day after the conclusion of the transaction. If the error has continued past the conclusion of the legal transaction, the two year term begins to run from the time the situation ceased to exist. However, in no case is it permitted for the transaction to be annulled if twenty years have elapsed since its conclusion (Art. 157, 2 and 3 CC). Once again it is a time limitation for the exercise of a right − past which the right will be extinguished − which begins to run the day after the conclusion of the transaction.

41

See below Ch. E, III.


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The party claiming the nullity of the transaction on the basis of error is bound to compensate the other party for the damage the latter suffered because he believed in a valid transaction (Art. 145, 1 CC). b. Non-essential error Non-essential error does not lead to the annulment of the transaction. VI. DECLARATION OF THE WILL Declaration of the will is the outward expression of the will of the person who wishes to conclude the juridical act. In order for the declaration of will to produce results in law it must conform to the stipulations of the law. We distinguish between unilateral juridical acts and contracts. 1. Unilateral Juridical Acts42 The unilateral juridical acts are divided into those containing a declaration of will which is not addressed to a specific person and those addressed to a specific person. A. Unilateral Juridical Act Containing Declaration of Will not Addressed to Specific Person The unilateral juridical act containing a declaration of will which is not addressed to a specific person takes effect from the moment of the externalization of the declaration of the will, e.g. testament, establishment of a foundation via an act inter vivos. B. Unilateral Juridical Act Containing Declaration of Will Addressed to Specific Person In order for the unilateral juridical act containing a declaration of will addressed to a specific person to take effect, the declaration of will needs to reach the offeree, regardless of whether the latter has taken cognizance of the content of the juridical act or not (Art. 167 CC).

42

Regarding the concept of the unilateral juridical act, see above Ch. B, I, 1.

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Example: B is employed by A in his business the headquarters of which are in Larissa. A who lives in Athens wishes to terminate the employment contract with B, i.e. to fire B. Consequently, he sends B a letter containing a document which terminates the employment contract. The termination is a unilateral juridical act addressed to a specific person, in this case B, and produces legal effects as soon as B receives the letter containing the termination notice. It is irrelevant whether B became aware of the content of A’s letter or not.

From the moment the addressee received the declaration of will, the declarant is bound and cannot revoke his declaration. Revocation is possible either before the declaration reaches the addressee, or if it reaches the addressee simultaneously with the initial declaration (Art. 168 CC). If the declarant dies or becomes incapable of concluding juridical acts after he made the declaration, the declaration remains valid even before it reaches the offeree for the sake of the safety of transactions (Art. 169 CC). 2. Contracts43 Contract is the juridical act containing the declarations of will of two or more persons acting out of different interests each but aiming at the same legal result. In the conclusion of a contract it is possible for the following stages to exist: -

stage of negotiations stage of promise to conclude a contract stage of conclusion of the final contract

A. Stage of Negotiations Stage of negotiations is the stage during which discussions are taking place regarding the conclusion of a contract. This stage ends with an agreement promising to conclude a contract or with the conclusion of the final contract. Since during the stage of negotiations a relationship of trust is being created between the parties, they are reciprocally bound to adopt the conduct dictated by good faith and business usage (Art. 197 CC). During the stage of negotiations whoever causes prejudice to the other party through his fault, shall be liable for compensation even if the contract 43

Regarding the concept of the contract, see above Ch. B, I, 2.


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was not concluded (Art. 198 CC). We have here the case of liability resulting from negotiations (precontractual liability, culpa in contrahendo). Example: It was agreed between A and B that A would buy B’s real estate. With this sale in view A incurred some expenses, for example he retained an attorney to conduct title search for the real estate; moreover, he missed the opportunity to buy another property offered to him under better terms. But, while all had been agreed upon regarding the sale and only the conclusion of the sale contract before a notary public was still pending, B, the seller, did not show up at the notary public’s office on the day and time agreed. The sale contract between A and B was not concluded but B has the obligation to compensate A for the damages he caused him to suffer because he created in him the conviction that a valid contract would be concluded between them. The compensation covers not only the expenses A incurred counting on the conclusion of the sale, but also the damage he suffered because he missed the opportunity to conclude another contract under more favorable terms than the one which was cancelled.

The stage of negotiations ends with the agreement promising to conclude a contract or with the conclusion of the final contract. B. Stage of Promise to Conclude a Contract Promise to conclude a contract is the agreement whereby the parties assume the obligation to conclude another contract, the final one. This agreement is subject to the form required by law for the conclusion of the final contract (Art. 166 CC). Example: Between A and B it was agreed that a contract of sale of A’s apartment to B would be concluded. This preliminary agreement has to be vested the form of a notarial document because, since for the sale of an immovable property the form of notarial document is required, the same form is required for the agreement promising to conclude the final contract.

C. Stage of Conclusion of the Final Contract The final contract is concluded with the meeting of the opposite wills, usually two, to produce legal effect. Usually the wills coincide in time. However, sometimes the one precedes the other. The declaration of will which comes first is called offer, whereas the one that follows acceptance.

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a. Offer In order for the offer to be valid, it must be clearly formulated so that the mere reply “I accept” on behalf of the offeree would suffice for the contract to be concluded. For example, A offers to sell his car to B for 3,000 euros. The party offering to conclude a contract44 is bound throughout the entire time period during which the offeree may accept the offer (Art. 185 CC). This period of time has either been fixed, i.e. a deadline has been set (e.g. A declares that he expects B’s answer within fifteen days), or lasts as long as is deemed necessary, depending on the circumstances, for the offeree to declare his acceptance. b. Acceptance Acceptance is the declaration of will of the offeree stating that he agrees to conclude a contract. For example, B, to whom A offered to sell his car for 3,000 Euros, declares that he accepts. The acceptance of the offer to conclude a contract needs to reach the offeror within the time frame set by him. If he had not set any time frame, the acceptance needs to reach him up until such time that, depending on the circumstances, the offeror was bound to wait for it (Art. 189 CC). If the declaration of acceptance was dispatched in time but reached the offeror after the expiration of the prescribed time frame, it is valid unless the offeror notifies the offeree immediately about the delay of his acceptance (Art. 190 CC). In this case the declaration of acceptance has no legal effect. If the acceptance is dispatched belatedly, it is considered as a new offer for the conclusion of a contract (Art. 191, 1 CC). Example: A offered to sell his car to B for 3,000 euros and set a time frame of fifteen days for B to accept. Two months later B declared that he accepts. In this case B’s declaration of acceptance is considered a new offer for the conclusion of a contract (i.e. it is considered an offer made by B to A for the former to buy the latter’s car).

Acceptance with amendments is deemed as rejection accompanied by a new offer (Art. 191, 2 CC).

44

The offeror may revoke the offer but his declaration of revocation needs to reach the offeree in time, i.e. the latest simultaneously with the initial offer (Art. 168 CC).


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Example: A offered to sell his car to B for 3,000 euros. B replied, “I accept the price of 2,500 euros.” In this case B rejects A’s offer and makes him a counter offer, i.e. now it is B who offers to buy A’s car at the price of 2,500 euros.

c. Time of conclusion of a contract The contract is concluded as soon as the acceptance reaches the offeror (Art. 192 CC). In order for a contract to be concluded the offer and the acceptance must be the mirror image of each other, i.e. there must be mutual agreement of the parties on all the points of the contract, both essential and non-essential. If such agreement is missing, the contract is considered as never having been concluded. VII. COMPLIANCE WITH FORM 1. General The declaration of will needs to be vested the form required by law. The Greek Civil Code follows the principle that no form is required for the conclusion of contracts. This means that for the valid conclusion of a contract the declaration of will needs to be vested a certain form only when the law so stipulates (Art. 158 CC), as is the case, for example, in the transfer of ownership of an immovable where a notarial document is required (Arts. 369 and 1033 CC). In all other cases the contract is valid without the need for it to comply with any form. The reasons why in certain contracts compliance with some type of form is required are the following: A. To protect the parties’ decisions from levity. B. To facilitate the proof of conclusion of a contract. C. To protect third parties because by giving publicity to a legal transaction the concerned others become informed. 2. Types of Form A. Constitutive and Evidential Form a. Constitutive form A form is constitutive when its observance is a sine qua non for the valid conclusion of a juridical act. In the cases where constitutive form is required, non adherence to it causes the legal transaction to be null and

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void.45 For example, a notarial deed is necessary for the sale of an immovable property. Consequently, the sale of a piece of real estate without a notarial document is null and void. The types of constitutive form are: private document, notarial document, and declaration before a public authority. aa. Private document: A private document is valid if it bears the handwritten signature of the person who issued it (Art. 160 CC).46 A private document is required by law in the case, for example, of the constitutive deed of an association or its charter (Art. 63 CC), the conclusion of an agreement of guarantee (Art. 849 CC), etc. At this point, taking into account the technology of our times we should examine whether the document which is transmitted via teletype (telex) or facsimile (fax) is a valid private document. The teletype (telex), since it bears no signature, cannot possibly be considered a valid private document. The facsimile (fax), which mechanically reproduces the handwritten signature of the person who issued it,47 cannot, according to the prevailing view, be considered a valid private document since it does not carry a handwritten signature.48 In the cases where a facsimile is used for the conclusion of a contract, the contract is concluded when the offeror receives the original document, i.e. the one that carries the handwritten signature of the offeree. The electronic document, i.e. the one obtained via a computer and, consequently, having an entirely electronic nature,49 cannot, of course, bear the handwritten signature of the person who issued it. 45

This rule is valid as long as the law does not stipulate the opposite, i.e. that the juridical act is not null and void. For example, in the case of donation of a movable object for which no notarial document exists, the legal transaction is validated from the time the donor materially delivers the object to the donee (Art. 498, 2 CC). 46 Exceptionally, the printing of a signature via a mechanical device has the validity of a handwritten signature if it is affixed on anonymous title-deeds that are issued in great number (Art. 163 CC). 47 The same holds a fortiori for the type of facsimile which, without even bearing the mechanical reproduction of the issuer’s signature, comes as a printout from a computer connected with the terminal of the document’s destination. 48 See Ap. Georgiadis, op. cit., p. 388 and the references cited thereat. An opposite view claims that the facsimile which bears a handwritten signature may be considered a valid private document (see Spyridakis, op. cit., p. 506). 49 See K. Christodoulou, Electronic Documents and Electronic Legal Transactions, 2001, pp. 2 et seq.; Ap. Georgiadis, op. cit., p. 438 et seq.; I. Karakostas, Law and the Internet: Legal


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However, the Community Legislator, in order on the one hand to strengthen the confidence of the parties in the constantly developing new modes of communication and on the other hand to unify the way of regulating the international phenomenon of electronic trade,50 established the Directive No 1999/93/EC regarding the Community framework for electronic signing. Greek law conformed to the Directive No. 1999/93/EC by PrD No 150 of June 25, 2001. According to the above mentioned Directive, electronic signatures are considered tantamount to handwritten signatures under strict conditions, in order to safeguard the authenticity of origin and the dependability of the electronic document.51 Consequently, if on account of the concurrence of specific conditions, the electronic signature is tantamount to the handwritten one, the electronic document bearing such signature will have the validity and evidential power of a private document with a handwritten signature.52 bb. Notarial document: This is a document composed by a notary public. It is required by law in case, for example, of transfer of ownership on an immovable property (Arts. 369 and 1033 CC), for the establishing deed of a foundation inter vivos (Art. 109 CC), or for the contract of donation (Art. 498, 1 CC). cc. Declaration before a public authority: In certain cases the law requires that a declaration of will be made before a certain public authority which, subsequently, on the basis of this declaration, composes a document called report. For example, the declaration of the future spouses regarding the last name of their children (Art. 1505, 1 CC), or the declaration regarding the last name of the child born out of wedlock but

Issues, 2nd ed., 2003, p. 121 et seq; I. Igglezakis, The Legal Framework of the Electronic Commerce, 2003, p. 127 et seq.; G. Georgiadis, The Conclusion of Transactions via the Internet, 2003, p. 29 et seq. 50 For the electronic trade see Directive No 2000/31/EC of the European Parliament and of the Council of June 8, 2000 regarding certain legal aspects of the services of the information society, especially of the electronic trade in the internal market. The above directive was adapted to Greek law by PrD No 131 of May 16, 2003. 51 Article 3, 1 of PrD No 150/2001 states the following: “The advanced electronic signature based on a recognized certificate and created from a safe provision for the creation of a signature is tantamount to handwritten signature, in both the substantive and the procedural law.” See Christodoulou, op. cit., p. 75 et seq. 52 See above footn. 51.

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acknowledged by the father as his own (Art. 1506, 3 CC), or the declaration of renunciation of succession (Art. 1848, 1 CC). b. Evidential form Evidential form is the form we adopt in transactions in order to facilitate the proof regarding the conclusion of a contract and its terms. For a private document to have evidential power it should bear the handwritten signature of the person who issued it.53 Evidential form is not a sine qua non for the validity of the juridical act. Example: For the valid conclusion of a lease contract (e.g. lease of an apartment) the law does not require any form. However, the parties usually draw up a document (rental agreement) in order to prove the between them transaction and its terms. This document only has evidential power.

B. Form Required by Law and Form Required by the Agreement of the Parties a. Form required by law: the form required by law is constitutive. If it is not complied with, in principle it results in rendering the transaction null and void (Art. 159, 1 CC).54 b. Form required by the agreement of the parties: it depends on the agreement made by the parties whether the form required will be constitutive or evidential. VIII. THE CONTENT OF THE JURIDICAL ACT TO COMPLY WITH THE LAW AND ‘GOOD MORALS’ The content of every legal transaction should not be contrary to the law or ‘good morals.’ 1. The Content of the Juridical Act to Comply with the Law A. Every legal transaction which is contrary to a prohibitive provision of the law is null and void (Art. 174 CC).55 Such is, for example, the 53

See Article 443 CCPr. It is possible for the law to stipulate that non-compliance with the requirement for form which is dictated by law and is of the constitutive type results in other consequences, as, for example, in the case of Article 618 of the Greek Civil Code. 55 The nullity is absolute. See below Ch. E, II, 3, B, a. 54


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contract precluding prescription, or determining a time period for it which is shorter or longer than the one stipulated by law, or the contract excluding the possibility of termination of an employment contract for a fixed time on important grounds.56 57 B. Equally null and void is every contract which, even though not contrary to a prohibitive provision of the law, is nevertheless contrary to the spirit of the law, i.e. it constitutes an attempt to circumvent a prohibitive provision of the law. Example: If the parties in an employment contract did not right out exclude the termination of the contract on important grounds but agreed either that certain events will not constitute important reason, or that termination will only be permissible for certain reasons, they act to circumvent the law. This is so because, strictly speaking, such an agreement, although not altogether excluding the right of termination, it limits it in an inadmissible way.

2. The Content of the Juridical Act to Comply with ‘Good Morals’ According to an explicit provision of the law, every juridical act contrary to ‘good morals’ (boni mores),58 is null and void (Art. 178 CC).59 It is left to the court to decide which juridical acts are contrary to morality. Based on court judgments the legal transactions considered as contrary to good morals are of the following type: A. Juridical acts seeking an immoral result. For example, A promises to pay an amount of money to B in order for the latter to defame C; or A pays B a sum of money in order for the latter to forge a public document. B. Juridical acts in which one person promises another something in exchange for the latter’s compliance with the law or the principles of 56

According to Article 672 of the Greek Civil Code, in case of employment contract for a fixed term each of the parties (the employer and the employee) has the right to terminate it at any time for ‘important reason’. This right may not be waived by an agreement between employer and employee because such agreement would be contrary to a prohibitive provision of the law. 57 What constitutes ‘important reason’ is not defined by law. Whether this is indeed the case is determined in each particular situation. For example, for the employer important reason exists when the employee does not comply with the instructions of the employer or when he abuses the trust shown to him by the employer. For the employee important reason exists when the employer does not pay him his wages, when he treats him with cruelty, etc. 58 ‘Good morals’ (boni mores) is the average man’s concept of social morality. See above Introduction to Law, Ch. A, II. 59 It is absolute nullity. See below Ch. E, II, 3, B, a.

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morality, such as, for example, to abstain from committing a crime in exchange for money. C. Juridical acts inordinately limiting the freedom of a person, e.g. when A promises B that he will pay him a sum of money if B abstains from voting, or if he changes his profession or religion. D. Exploitative juridical acts. The law refers specifically to the exploitative contracts (Art. 179 CC). Exploitative is the juridical act where one, by exploiting the need, levity,60 or inexperience of the other, succeeds in obtaining for a certain performance pecuniary advantages that are extremely disproportional to his supply. Examples: − A, being in great financial hardship on account of his need for an urgent surgical procedure abroad, sold his immovable property to B, worth 90,000 euros, for a mere 30,000 euros. − A, pressured by great financial need, borrowed money from B at great cost, i.e. he concluded a loan contract at an exorbitant interest rate.

60

‘Levity’ is the indifference and naiveté on account of which one may not evaluate the meaning and consequences of his actions.

CHAPTER D INTERPRETATION OF JURIDICAL ACTS If the formulation of the declaration of the will, i.e. its letter, leaves no room for ambiguity as to the meaning of its content, naturally, there is no reason for interpretation. Only when the declaration of the will creates doubts, is there reason for interpretation. I. RULES OF INTERPRETATION The Greek Civil Code has two general rules which apply to the interpretation of juridical acts whether they are unilateral juridical acts or contracts. These rules are contained in Articles 173 and 200 of the Civil Code. 1. According to Article 173 of the Greek Civil Code, when interpreting a declaration of the will the true intention shall be sought without focusing exclusively on the literal meaning of the words. This rule, which emphasizes the subjective criterion, establishes the subjective interpretation. But when the law says that the ‘true will’ of the person is being sought, it does not imply that it is necessary for one to seek the innermost will of the declarant; only his true will as reflected in his declaration. In other words interpretation seeks the truth about the will that was declared. In this interpretation are taken into consideration not only the words used in the phrasing of the declaration of the will, but also the circumstances in the framework of which the declaration was made. For example, the discussions that took place during the stage of negotiations for the conclusion of the legal transaction will be taken into account. 2. According to Article 200 of the Greek Civil Code, contracts shall be interpreted in conformity with the requirements of good faith taking into consideration business usage.

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With this rule, which pays special attention to the objective criteria of good faith1 and business usage,2 is established the objective interpretation. Objective interpretation is the one based on the good faith required in transactions, i.e. the interpretation where the declarations of will must be interpreted as they are usually understood by honest parties when dealing under similar circumstances. From the combination of the above mentioned rules for the interpretation of legal transactions it follows that the law seeks to determine the true declared will in an objective way, i.e. by using the yardstick of business honesty. Consequently, in every concrete case it should be examined what the average honest man could and should have gathered from a declaration of will made by the declarant. II. SUPPLEMENTAL AND ‘CONDITION FORMING’ INTERPRETATION

∗

By interpretation we also mean the filling of the gaps in a juridical act. A juridical act has a gap when the parties did not regulate a certain matter during the conclusion of the legal transaction, either because they did not anticipate it or because, although they anticipated it, they did not want to regulate it. Gaps mainly arise in contracts of duration or standing contracts (e.g. lease of a thing, employment contract) because, during the long period of time over which they stretch – from conclusion to termination – it is possible for changes to occur which could not have been anticipated by the parties at the time of conclusion of the legal transaction. These gaps are filled by the use of either supplemental or ‘condition forming’ interpretation. 1. Supplemental Interpretation Supplemental interpretation aims at filling the gaps of the juridical act by seeking the surmised, the presumed will of the parties.

1

Objective good faith is the directness and honesty required during transactions and in social life in general. See below Law of Obligations, Introduction, Ch. A, III, 2. 2 ‘Business usage’ means the sum total of practices prevailing in transactions. See above Introduction to Law, Ch. A, III. Regarding terminology, see above Translator’s note, p. 75 (Translator’s note). ∗


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To find the surmised, the presumed will, one has recourse to familiar practices of the parties as well as to solutions the parties have adopted in similar cases. If such data is not available, it is presumed that the content of their will is that of a prudent man under the same circumstances. Example: A leased an apartment of his to B who is an engineer. In the rental agreement it was not mentioned whether B may also use the premises as an office. At some point disagreement arose between A and B. It will be solved by the court which will have recourse to supplemental interpretation.

2. ‘Condition Forming’ Interpretation ‘Condition forming’, or constitutive, interpretation is adopted when there are gaps in the juridical act because of a change in circumstances which took place after the conclusion of the transaction. With this type of interpretation one does not seek to supplement the true will of the parties concluding the transaction but to replace it so that it may be carried out. The judge uses objective criteria by applying the provisions of the Articles 200 and 288 of the Greek Civil Code3 and seeks the fulfillment of the juridical act according to the principles of good faith in legal transactions. Example: A had leased an apartment of his to B for two years. When the lease expired, i.e. when the two years elapsed, B had to return the premises to A. However, at the time of the expiration of the lease B was seriously ill and could not be moved. Because A insisted on the immediate vacation of the premises, a disagreement arose between A and B. The issue will be solved by the court which, practicing ‘condition forming’ interpretation, will rule that, based on the principle of good faith during transactions, the lease should be slightly extended.

3

Art. 288 of the Greek Civil Code stipulates that the debtor is obliged to fulfill the performance in accordance with the requirements of good faith taking also into consideration business usage.

CHAPTER E DEFECTIVE JURIDICAL ACTS I. CONCEPT AND DISTINCTIONS Because of their defects, certain juridical acts either do not produce legal effects or produce them but may be annulled by a court decision in which case it is as if they were null and void from the start (ab initio). Defective juridical acts are distinguished in null and void and voidable. II. NULL AND VOID JURIDICAL ACTS 1. The Concept Null and void juridical act is the juridical act which, due to the absence of an essential element, does not produce the legal effects the parties were aiming at. The juridical act which is null and void is deemed not to have taken place (Art. 180 CC). There are many reasons on account of which a juridical act may be null and void: legal transaction entered into by a person lacking the capacity to conclude juridical acts (e.g. contract of sale of immovable property by a person under age), non-compliance with the form required by law for the transaction to be vested (e.g. contract of sale of immovable property without a notarial deed), clash between the content of a legal transaction and ‘good morals’ (e.g. conclusion of an exploitative transaction), etc. In order for a person to raise the issue of nullity, it is not necessary for the legal transaction to have been previously declared null and void by a court ruling.1 1

Exceptionally, a court ruling is required by law in the case of a null and void marriage (Art. 1376 CC) as well as in the case of a null and void decision of the Meeting of the Members of an association (Art. 101 CC).


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2. Difference between Null and Void and Inactive or Inoperative Transaction A transaction is null and void when it does not produce its legal effects, whereas it is inactive or inoperative when for its finalization certain additional conditions need to concur and there is uncertainty as to whether they will. Up until these additional conditions concur, the legal transaction is in abeyance. Example: If a transaction is concluded via a false representative, its validity depends on its approval by the person represented. If the latter approves it, it is considered valid from the time of its conclusion. If he does not approve it, it is considered null and void. During the time this uncertainty exists the transaction is in abeyance.2

3. Types of Nullity A. Initial and Supervening a. Initial nullity: the nullity is initial when it already existed at the time of the conclusion of the transaction, i.e. it is due to a defect which existed at the time of its conclusion, e.g. sale of an immovable property by a person lacking the capacity to conclude juridical acts, sale of real estate without a notarial document. b. Supervening nullity: the nullity is supervening when it happened after the conclusion of the transaction, i.e. when it is due to reasons which developed subsequently. For example, the extraordinary will3 becomes null and void three months after the circumstances giving rise to it ceased to exist for the testator and the latter is still alive. That is to say, when the testator, after executing the extraordinary will, returns to normal circumstances which allow him to draw up an ordinary will but does not do so for three months, the extraordinary will is null and void.

2

See below Ch. G, II, 6. Extraordinary wills are the wills executed under certain extraordinary circumstances (aboard a ship, during a military campaign, during a blockade). As such they are subject to simpler requirements than those of a public will (Arts. 1749-1762 CC). For more, see below Succession Law, Part One, Ch. B, II, 2. 3

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B. Absolute and Relative a. Absolute nullity: the nullity is absolute when it may be invoked by anyone having a lawful interest and not only by the contracting parties. Such is the nullity stemming from the violation of a provision aiming at serving a more general interest. For example, the juridical acts concluded in violation of a prohibitive provision of the law, those that are against the ‘good morals’, or the transactions lacking the form required by law are absolutely null and void. Example: A sold an immovable property to B with a private instead of a notarial document, as is required by law for the sale of real estate. In this case the transaction is absolutely null and void. This implies that, other than A, anyone having a lawful interest may invoke the nullity, e.g. A’s creditor because of his lawful interest in keeping the property in A’s hands.

b. Relative nullity: the nullity is relative when only certain persons may invoke it, in fact the very same persons that the infringed provision aimed at protecting. Such is the case of nullity in case of violation of a provision of the law serving a private interest. Up until the time the nullity is invoked, the juridical act produces all its legal effects. Examples: Donations on the part of the parents from the estate of their child (Art. 1524 CC) as well as management on behalf of the parents of their child’s estate without compliance with the provisions of the law (Art. 1526 CC) are relatively null and void. In these cases, where the provisions of the law serve a private interest, i.e. the interest of the child, the nullity of the juridical acts may be invoked by the father, the mother, the child himself, and the child’s heirs (Art. 1528 CC).

C. Full and Partial a. Full nullity: the nullity is full when, because of it, the entire juridical act is overturned; for example, conclusion of a transaction by a person lacking the capacity to conclude juridical acts, sale of an immovable without a notarial document, as is required by law. b. Partial nullity: the nullity is partial when it only affects part of the juridical act. Consequently, the part of the transaction which is not affected remains valid. Example: A loaned an amount of money to B at the annual interest rate of 50%. In view of the fact that, on the one hand, the highest contractual annual interest rate


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is set in principle by the European Central Bank4 and, on the other, that according to the law (Art. 294 CC) every transaction regarding interest which exceeds the highest limit set is null and void as regards the excess, the part of the transaction regarding the interest rate is null and void for the amount of the excess. In this case it is not the entire transaction which is null and void but only the part of it referring to the interest rate that was set higher than what is permitted by law. In other words, the loan contract remains valid but the debtor’s obligation to pay interest is adjusted to the highest rate permitted.

III. VOIDABLE JURIDICAL ACTS A voidable juridical act produces its legal effects but, due to some defect, it may be annulled by a court judgment. After its annulment, the voidable juridical act is identical with the null and void, i.e. it is considered as null and void from the time of its conclusion. Voidable are the transactions which were concluded by reason of essential error, fraud, or threat (Art. 154, 1 CC). The action for the annulment of the voidable transaction may be brought only by the person in error, the defrauded, or the threatened party and their heirs (Art. 154, 2 CC). It is brought against the other contracting party. The right to claim the annulment of a voidable transaction is extinguished either if the beneficiary waives his right to annul (Art. 156 CC) or at the expiration of two years from the conclusion of the transaction (Art. 157, 1 CC). The two year period is a term of extinction of the beneficiary’s right to claim annulment5 which begins running the day after the conclusion of the transaction. If the error, fraud, or threat continued past the conclusion of the transaction, the two year term of extinction begins after this situation ceased to exist. But in no case is it possible to claim annulment if twenty years have elapsed from the conclusion of the transaction (Art. 157, 2 and 3 CC). The twenty year period is also a term of extinction of a right and it begins running the day after the conclusion of the transaction. If the annulment of a voidable juridical act is not sought during the term of extinction of the right to annul set by law, the transaction remains

4

Since June 6, 2003 the highest contractual annual interest rate is set at 8% (decis. of the Board of Directors of the European Central Bank dated June 5, 2003). 5 See above Part Two, Ch. F, II, 4 and below Part Three, Ch. F, II, 4.

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valid and may no longer be annulled. Consequently, its legal effects no longer run the risk of being reversed. IV. DIFFERENCE BETWEEN NULL AND VOID AND VOIDABLE JURIDICAL ACTS The juridical act which is null and void is considered never having taken place; consequently, it produces no legal effects. In principle,6 the nullity occurs ipso jure and there is no need for a court ruling to declare the transaction null and void. The voidable juridical act produces all its legal effects up until it is declared null and void by a court ruling. If the annulment of the juridical act is not sought within the term set by law for the extinction of such right, the voidable transaction remains valid in all respects.

6

See above Ch. E, II, footn. 1.

CHAPTER F CONDITIONS AND TERMS (TIME-CLAUSES) I. CONDITIONS 1. Concept and Elements of the Condition A. The Concept Sometimes the contracting parties make the legal results of the juridical act they are concluding (their attainment or reversal) dependent on a future and uncertain event. This event is called condition (condicio). Condition is a term (or limitation) the contracting parties add to a legal transaction according to which the operativeness of the latter (i.e. its legal effects) depends on an event which is future and uncertain. Example: A promises to give B 600 Euros if A wins the 13 matches in the game of “PRO-PO” (football pool).

B. Elements of the Condition The elements of the condition are: a. The term limiting the operativeness of the juridical act must have been added by the contracting parties. b. The event on which the operativeness of the transaction depends must be future. c. The event on which the operativeness of the transaction depends must be objectively uncertain. The condition having all the above mentioned elements is called genuine as opposed to the non-genuine one which is a condition in name only.

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2. Non-genuine Conditions A. The Concept Non-genuine condition is the condition which exists only in name because in reality there is no future and uncertain event in it. Consequently, in the case of non-genuine conditions the provisions regarding conditions are not applicable. B. Cases of Non-genuine Conditions a. Conditions referring to the present or the past: in those cases there is no objective uncertainty. The event referred to in the condition either is true or it isn’t. The uncertainty is only subjective; it is the uncertainty of the contracting parties alone. Examples: − A promises to give B 1,500 euros, if he passes the university admission exams the results of which have already been posted. − A sells his land to B on condition that A’s representative has not already sold the same to C.

b. Conditions of law: the conditions of law consist in this: the event they are referring to as being dependent upon is by law a prerequisite for the juridical act to have legal effects, i.e. such conditions are redundant. Examples: − A sells his apartment to B provided that they will agree on the price. − A leases his apartment to B provided that they will agree on the rent.

c. Necessary conditions: in the case of these conditions it is certain that the event will occur, e.g. the death of a person. Example: A promises to pay an amount of money to the x foundation if ever B were to die.

3. Types of Conditions The basic two categories of genuine conditions are suspensive and resolutory. A. The Suspensive Condition Suspensive condition is the condition where the attainment of the legal effects of the juridical act is made dependent on a future and uncertain event. This means that, when a legal transaction contains a suspensive


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condition, it will generate results only when the future and uncertain event takes place (Art. 201 CC). Example: A donates his vehicle to his son B and they agree that A will transfer him the ownership of the car, if the donee gets his degree from the University of Piraeus in July. Thus, for the transaction to generate results, the future and uncertain event of B’s graduation in July must take place.

B. The Resolutory Condition Resolutory condition is the condition which makes the reversal of the legal effects of the transaction dependent upon a future and uncertain event. The results of the transaction containing the resolutory condition occur immediately, but they are reversed when the future and uncertain event takes place, at which point the former situation is ipso jure restored (Art. 202 CC). Example: A donates his car to his son B and transfers the ownership of the vehicle to him with the understanding that the ownership of the car will revert to A (the father), if B (the son) fails his exams and does not get his degree from the University of Piraeus in July. In this case the legal transaction does produce its legal effects immediately, but they are not definitive because they may be overturned, if the future and uncertain event takes place, i.e. if B does not get his degree in July.

4. Juridical Acts not Susceptible to Conditions The rule is that all juridical acts may be made dependent upon conditions. Exceptionally, however, there are certain juridical acts which are not susceptible to conditions. The prohibition of conditions may result either directly from the law or from the nature and goal of the juridical act. In the first category, i.e. the category of juridical acts which by law are not susceptible to conditions, belong certain family law juridical acts, such as the declarations of the future spouses in the case of marriage (Art. 1350, 1 CC), the declarations in adoption (Art. 1548 CC), or in the voluntary acknowledgment by the father of the child born out of wedlock as his own (Art. 1476, 2 CC). In the second category, i.e. the category of juridical acts non susceptible to conditions by reason of their nature or goal, belong the juridical acts in which the necessity to protect the interests of certain persons imposes the imperative to avoid creating ambiguity. For example, it is not

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possible for the termination of an employment contract to be subject to conditions (i.e. for an employer to fire the employee under conditions), or for the power of attorney to be revoked1 under conditions. To add a condition to a juridical act where this is prohibited renders the transaction null and void. 5. The Impact of Certain Conditions on the Validity of the Juridical Act There are certain cases where, even though the juridical act is susceptible to conditions, to add a certain condition to it in principle entails its nullity. Those conditions are the following: A. The Contradictory Condition A condition is contradictory when its fulfillment is contrary to the content of the transaction. The contradictory condition renders the transaction null and void (Art. 208, 1 CC). Examples: − A leases his apartment to B on condition that he (A) will continue to live in it. − A designates B as his heir on condition that C will inherit him (A).

B. The Incomprehensible Condition A condition is incomprehensible when it is not understandable due to its unclear formulation. The incomprehensible condition makes the juridical act null and void (Art. 208, 1 CC). C. The Unlawful Condition Unlawful is the condition which makes the content of the transaction unlawful. Consequently, it brings about the nullity of the juridical act (Art. 208, 1 CC). Example: A promises to pay B an amount of money, if the latter succeeds in arranging for A an illegal export of archaeological inscriptions.

1

See below Ch. G, II, 5, A, b, aa.


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D. The Immoral Condition Immoral is the condition which makes the content of the transaction immoral. Consequently, it brings about the nullity of the juridical act (Art. 208, 1 CC). Example: A promises to pay an amount of money to B, if the latter kills D or defames C.

E. The Impossible Condition Impossible is the condition referring to an event which, at the time of conclusion of the juridical act, cannot possibly happen. a. If the impossible condition is of the suspensive kind, it renders the juridical act null and void (Art. 208, 2 CC). Example: A promises to give B 6,000 euros, if C lives to be two hundred years old.

b. If the impossible condition is of the resolutory kind, this condition does not have any effect; consequently, it does not affect the validity of the juridical act containing such condition (Art. 208, 2 CC). Example: A gives B a certain amount of money subject to the condition that C will not live to be two hundred years old.

6. The Function of the Condition Each condition goes through two stages: the stage of pendency and the stage of fulfillment or cancellation. A. Stage of Pendency of the Condition A condition is pendent from the time of the conclusion of the transaction to the time of the fulfillment or cancellation of the condition, i.e. during the stage when the condition is not yet decided upon. During the stage of pendency we distinguish between suspensive and resolutory conditions: a. Suspensive conditions: If a juridical act contains a suspensive condition, during this stage its legal effects do not occur. However, a bond between the contracting parties is created because the conditional beneficiary has the right of expectation.

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The right of expectation creates the following obligations for the obligor: aa. He may not through fault of his own commit an action or omission bringing about the frustration or impairment of the conditional right, such as for example the destruction or damage of the thing sold under condition. If the obligor violates this obligation, in the event that the condition is fulfilled, he needs to compensate the conditional beneficiary (Art. 204 CC). Example: On June 15, 2004 A donated his car to B and they agreed that he would transfer the ownership of the vehicle to him, if B gets his degree from the University of Piraeus in July of 2005. If on August 15, 2004, through fault of his own, A destroyed or caused serious damage to the car he had donated to B, then, in case the condition is fulfilled and B gets his degree in July of 2005, A would have to compensate B regarding the destruction of the car or pay for the damages he caused to it.

bb. The obligor may not alienate the object of the transaction. If the obligor violates this obligation, in the event that the condition is fulfilled, the alienation will be ipso jure null and void because it frustrates or impairs the result which is dependent on the condition (Art. 206 CC). Example: On June 10, 2004 A donated his car to B and they agreed for the ownership to be transferred to him if B gets his degree in July of 2005. On August 12, 2004, i.e. during the stage of pendency of the condition, A sold to C the car he had earlier donated to B. In the event that the condition is fulfilled, that is, if B gets his degree in July of 2005 (at which point A would have to transfer to him the ownership of the car), the disposal of the car to C is ipso jure null and void.

This nullity may be claimed only by the person for the protection of whose interest it was imposed. It is the case of relative nullity.2 In the above example only B may invoke the nullity.

b. Resolutory conditions: If a juridical act contains a resolutory condition, during the stage of pendency all the legal effects are attained but they are reversed if the condition is fulfilled. In other words, in the case of resolutory condition the situation is turned upside down. The position of the beneficiary subject to resolutory 2

See above Ch. E, II, 3, B, b.


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condition is analogous to the position of the obligor subject to suspensive condition. Consequently, the beneficiary who acquired under resolutory condition must: aa. Abstain from every action that could frustrate or impair the conditional right. If, despite this prohibition, the beneficiary through fault of his own frustrates or impairs the conditional right, he is obliged to compensate the party who granted him the right (Art. 204 CC); Example: On June 5, 2004 A donated his car to B and transferred the ownership of the vehicle to him under the condition that B would not fail his exams but get his degree from the University of Piraeus in July of 2005. On August 15, 2004, through fault of his own, B destroyed or caused serious damage to the car he got from A. In the event that the resolutory condition is fulfilled, i.e. if B does not get his degree in July of 2005 (at which point he would have to return the car to A), he must compensate him for the destruction of the vehicle or the damage he caused to it.

bb. Not alienate the object of the transaction during this stage of pendency because every alienation frustrating or impairing the effects of the transaction subject to condition is ipso jure null and void (Art. 206 CC). Example: On June 5, 2004 A donated his car to B and transferred the ownership of the vehicle to him under the condition that B would not fail his exams but would get his degree from the University of Piraeus in July of 2005. On August 15, 2004 B sold A’s car to C. In the event that the condition is fulfilled, i.e. if B does not get his degree in July of 2005 (at which point he would have to return the car to A), the alienation of the vehicle (sale to C) is ipso jure null and void.

Finally, it should be pointed out that in the case of resolutory condition the right of expectation is created in favor of the party who would benefit from the fulfillment of the condition. In the above example the right of expectation belongs to A.

B. Stage of Fulfillment or Cancellation of the Condition a. Stage of fulfillment of the condition Fulfillment of the condition means the occurrence of the future and uncertain event. The effects of the fulfillment of the condition take place ipso jure, i.e. without it being necessary for the parties to engage in any other act. The

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effects concern the future, i.e. they begin at the time of the fulfillment of the condition (ex nunc) and do not go back to the time of the conclusion of the transaction (ex tunc).3 We distinguish between suspensive and resolutory conditions. aa. Suspensive conditions: fulfillment of a suspensive condition means that the future and uncertain event on which the operativeness of the transaction depended has come to pass. In the above example of donation of A’s car to B subject to the condition that the latter gets his degree in July, the fulfillment of the suspensive condition takes place when B gets his degree in July.

The consequences of the fulfillment of the suspensive condition are that the legal effects of the transaction are attained. In the above example A is obliged to deliver the car to B.

bb. Resolutory conditions: fulfillment of a resolutory condition means that the future and uncertain event on which the reversal of the effects and the restoration of the previous situation are dependent, has come to pass. In the example of donation and transfer of ownership of A’s car to B, subject to the condition that the latter would not fail his exams and would get his degree in July, fulfillment of the resolutory condition occurs when B does not get his degree in July.

The result of fulfillment of a resolutory condition is that the effects of the transaction are reversed and the previous situation (status quo ante) is ipso jure restored. In the above example B is obliged to return the car to A.

b. Stage of cancellation of the condition Cancellation of the condition means that the future and uncertain event did not occur. We distinguish between suspensive and resolutory conditions. aa. Suspensive conditions: cancellation of the suspensive condition means that the future and uncertain event on which the operativeness of the transaction was dependent did not occur. 3

However, it may follow from the content of the transaction that the effects of the condition go back to a time prior to the fulfillment of the condition (Art. 203 CC).


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In the example of donation of A’s car to B, subject to the condition that B gets his degree in July, the cancellation of the suspensive condition takes place when B does not get his degree in July.

The result of the cancellation of the suspensive condition is that the transaction does not bring about its legal effects. In the above example A does not have any obligation to transfer the ownership of his car to B.

bb. Resolutory condition: cancellation of the resolutory condition means that the future and uncertain event on which the restoration of the previous situation was dependent did not occur. In the example of the donation and transfer of ownership of A’s car to B, subject to the condition that the latter does not fail his exams and that he gets his degree in July, the cancellation of the resolutory condition takes place when B gets his degree in July.

The consequence of cancellation of a resolutory condition is that the legal effects of the transaction, which were originally attained at the point of its conclusion, now become permanent. In the above example B keeps the car that A gave him as a gift.

II. TERMS (TIME-CLAUSES) 1. The Concept In the Civil Code the word ‘term’ is used in three different ways: -

as an additional clause to the juridical act as an expression or determination of time as a time period for the extinction of a right

2. ‘Term’ as an Additional Clause to the Juridical Act A. The Concept Term as an additional clause to the juridical act is the time-clause (dies) which the contracting parties have added to the transaction to make the occurrence or reversal of its legal effects dependent on a future point in time. In this case the provisions regarding conditions also apply to terms by analogy (Art. 210 CC).

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B. Types As an additional clause in the juridical act the term (time-clause) may be suspensive or resolutory. a. Suspensive term (time-clause) Suspensive term (time-clause) is the term added to the transaction which makes the attainment of its legal effects dependent on a future but definite point in time. Example: A promises to give B 600 euros when the latter reaches majority.

b. Resolutory term (time-clause) Resolutory term (time-clause) is the term added to the transaction which makes the reversal of its legal effects dependent on a future but definite point in time. Example: A loans the use of one of his books to B provided that the latter will return it to him a month later.

C. The Difference between Condition and Term When there is a condition in a juridical act, the occurrence or reversal of the transaction’s legal effects depends on a future and uncertain event, whereas when there is a term, the occurrence or reversal of the transaction’s legal effects depends on a future but certain event. 3. ‘Term’ as an Expression or Determination of Time A. The Concept ‘Term’ as an expression or determination of time means either a certain point in time or a certain period of time within which or after which an event will occur. Examples: − A agrees with B to transfer the ownership of his apartment to him on March 12, 2005. − On June 7, 2004 A loaned 1,500 euros to B which the latter is obliged to pay back after one year. − A agrees to paint B’s apartment within fifteen days.


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B. Types As an expression or determination of time the term may be set by law, in which case it is called legal, by a court ruling, in which case it is called judicial, or, finally, by the juridical act, in which case it is called transactional (Art. 240 CC). C. The Beginning of the Term The term begins running from the day following the occurrence of the event which constitutes its starting point (Art. 241, 1 CC).4 Example: On July 4, 2004 A loaned 1,500 euros to B for one year. The time period of one year begins on the 5th of July.

The law provides for an exception in the computation of the time period in the case of coming of age (reaching majority) where the day of birth is included in the calculation (Art. 241, 2 CC). Example: A, who was born on May 15, 1984, reached majority on May 15, 2002.

The same holds for the computation of any other age.5 Example: A, who was born on August 10, 1990, completed the tenth year of age on August 10, 2000.

D. The End of the Term The time period ends at the expiration of the entire last day of the term. If the last day of the time period is a legal holiday, the time period ends at the expiration of the entire next working day (Art. 242 CC). In the above example of the conclusion of a loan between A and B, the one year term for its payment will expire at the end of the last day of the year, i.e. on July 5, 2005. If, in the above example, the 5th of July is a Sunday, the term will end at the expiration of Monday, the 6th of July.

In case the following day or, possibly, even the day after it is a legal holiday, the term ends respectively at the expiration of the day after the holiday or of the third next working day. 4

The time period for prescription is computed in the same fashion. See above Part Two, Ch. F, I, 3. 5 See above Ch. C, II, 4, A.

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Example: If a term ends on December 24 and the 24th of December is a Sunday, due to the fact that both the 25th and the 26th of December are legal holidays, the term will end at the expiration of the 27th of December.

4. ‘Term’ as a Term of Extinction ‘Term’ as a term of extinction is the time period set by law or the contracting parties during which a right has to be exercised (Art. 279 CC), that is, if the right is not exercised within this time frame, it is extinguished.6 Example: The lawsuit for annulment of a juridical act on the grounds of essential error, fraud, or threat may be filed only within two years from the time of the conclusion of the transaction (Art. 157 CC).

The court considers ex officio the term of extinction set by law, that is, it is not necessary for the litigant to invoke such plea. Example: In the case of legal action for the annulment of a transaction on the grounds of essential error, fraud, or threat, if the court establishes that the lawsuit was filed after the two year term stipulated by law, it will reject it whether the litigant opposed such plea or not.

6

For the differences between the term of prescription and the term of extinction, see above Part Two, Ch. F, II, 2.

CHAPTER G REPRESENTATION AND POWER OF ATTORNEY I. REPRESENTATION 1. The Concept A. General Sometimes a person, for different reasons, real (e.g. absence from the place where the transaction is concluded, illness) or legal (incapacity to conclude a juridical act in propria persona), cannot act in person. In these cases he seeks to conclude the transaction via another person, his representative, who acts on his behalf. For example A, who acts as the representative of B, buys a car from C on behalf of B. Representation is the institution through which a juridical act is concluded by one person (the representative) on behalf of another person (the represented, the principal). B. Difference between Representative and Messenger The representative differs from the messenger (nuntius) in that, whereas the representative makes a declaration of will and concludes a transaction on behalf of another person, the messenger, just like a ‘live letter,’ conveys someone else’s declaration of will. Examples: − A, who represents B, declares to C, “I am selling such and such piece of property that belongs to B in his (B’s) name.” − A, who is B’s messenger, declares to C, “B asked me to tell you that he is selling such and such piece of his property.”

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2. Types of Representation A. Direct and Indirect a. Direct representation: the representation is direct when an individual (the representative) makes a declaration of will in the name and on behalf of another person (the represented, the principal) within the bounds of the authority of representation conferred. The results of the juridical act occur immediately in the person of the represented. Example: A (representative) buys an apartment from C in the name and on behalf of B (principal).

b. Indirect representation: the representation is indirect when a person (representative) makes a declaration of will in his name, i.e. in the representative’s own name, on behalf of another person (the principal). In this case the juridical act produces its effects in the person of the representative who subsequently, with a separate juridical act between himself and the represented, transfers them to the principal. Example: A (representative) buys in his own name an apartment from C on behalf of B. Subsequently, with a separate transaction, he transfers it to B.

The Greek Civil Code regulates only the direct representation, not the indirect one1 which, however, is often used in the business world when the principal does not wish to reveal his identity in the conclusion of certain transactions. B. Active and Passive a. Active representation: the representation is active when the representative makes a declaration of will in the name and on behalf of the represented (principal). Example: A, as the representative of B, declares to C that he sells B’s car.

b. Passive representation: the representation is passive when the representative receives a declaration of will addressed to the represented (principal). 1

To be noted that this is a significant substantive difference between common law and Greek law. See, for example, the relevant comments of S. Symeonides, “The General Principles of the Civil Law,’ in K. Kerameus – Ph. Kozyris (eds.), op. cit., p. 69.


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Example: C declares to A, who is the representative of B, that he will buy B’s car.

C. Legal and Voluntary a. Legal representation: the representation is legal or statutory when the authority to represent stems directly from a provision of the law. Examples: − The parents are the legal representatives of their minor children (Art. 1510 CC). − The judicial assistant is the legal representative of the person under privative judicial assistance in whole (Art. 1676, 1 CC).

b. Voluntary representation: the representation is voluntary when the authority to represent stems from the will of the represented. The principal grants authority to the representative to conclude a juridical act in the principal’s name. In this case the authority of representation granted to the representative is called power of attorney (procuration).2 Example: B appoints A as his representative for the purpose of managing his estate.

3. Conditions of Direct Representation The conditions of direct representation are the following: A. Declaration of Will Representation can only occur in reference to the declaration of will. There can be no representation in civil offense (tort/delict).3 For example, A cannot appoint B as his representative to burn down C’s house or to murder D. B. Declaration of Will Susceptible to Representation In principle all juridical acts may be concluded through representation. Exceptionally, certain declarations of will are not susceptible to representation, i.e. they must be made in person, such as, for example, the 2

See below Part Three, Ch. G, II. Every illegal behavior constitutes an unlawful act, regardless of whether it is also due to fault; but if such behavior is also due to fault, it constitutes a tort (delict). All torts are also unlawful acts but all unlawful acts are not also torts, e.g. the unlawful act of a psychologically disturbed person or a minor under ten years of age is not a tort. See below Law of Obligations, Part Three, Ch. B, I, 1. 3

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declarations of the future spouses regarding their will to get married (Art. 1350, 1 CC), the father’s voluntary acknowledgement of a child born out of wedlock as his own (Art. 1476 CC), the declaration of adoption (Art. 1549 CC), the drawing up of a will (Art. 1716 CC). If these juridical acts are concluded via a representative, they are null and void. C. Declaration of Will in the Name of Another (the Principal) The declaration of will made by the representative needs to be made in the name of the principal, i.e. it should be clear that the juridical act concluded by the representative is another person’s transaction: the principal’s. The fact that the representative concludes the transaction in the name of the principal sometimes is expressly stated (explicit representation) and other times is inferred from the circumstances (tacit or implied representation). Example: The sales associate in a store selling the store’s merchandise to the public or the employee in an auto repair shop concluding agreements with customers about car repairs act in the name of their respective employers (the businessman operating the store or the owner of the car repair shop) even though no special mention of this is being made to the customers during the respective transactions (tacit or implied representation).

D. Suffices for the Representative to Have Limited Capacity to Conclude Juridical Acts According to the express rule of Article 213 of the Greek Civil Code, suffices for the representative to have limited capacity to conclude juridical acts.4 The legislator was led to this arrangement thinking that, since the transaction concluded by the representative affects the person of the principal, it is in the principal’s interest to select the right person to represent him. That is, it is the principal who takes the risk to be poorly represented by the person he chose as his representative. The provision of article 213 of the Greek Civil Code is in principle inapplicable in the case of legal representation, i.e. the minor with limited capacity to conclude juridical acts cannot exercise parental care nor can he be appointed as a tutor. 4

See above Ch. C, II, 4, C, a.


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E. The Representative Must be Granted the Authority to Represent The authority to represent is granted by the law (legal representation) or by an agreement between representative and principal called power of attorney (voluntary representation). F. Declaration of Will within the Bounds of the Power Granted In the case of legal representation the content of the authority of representation granted is determined directly by the law, whereas in the case of voluntary representation from the power of attorney agreement or from the underlying legal relationship between representative and represented. If the exercise of the authority of representation exceeds the above mentioned bounds, the provisions of the law regarding false representation are applicable.5 II. POWER OF ATTORNEY 1. The Concept Power of attorney (procuration) is the authority of representation conferred through a unilateral juridical act. We have power of attorney only in the case of voluntary representation. The term ‘power of attorney’ signifies both the unilateral juridical act through which the authority of representation is granted and the authority conferred thereby (Art. 216 CC). 2. Ways of Granting Power of Attorney The power of attorney may be granted in the following ways: a. With a declaration to the representative (internal power of attorney). Example: A gives power of attorney to B for the purpose of buying a house in A’s name and on A’s behalf.

b. With a declaration to the third party with whom the transaction of the ‘attorney’ (representative) is to be concluded (external power of attorney). Example: A declares to C with whom he does business that one or more transactions will be concluded by B in A’s name and on A’s behalf. 5

See below Ch. G, II, 6.

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c. By public announcement, i.e. with a declaration communicated via the usual media (e.g. newspapers, radio, TV). Example: Company A declares publicly (through a newspaper publication or a radio or TV announcement) that B is the company’s representative.

3. Types of Power of Attorney A. General and Specific Power of Attorney Depending on the extent of the authority of representation conferred, the power of attorney may be general or specific. a. General power of attorney: the power of attorney is general when it refers either to all or a group of the principal’s transactions. b. Specific power of attorney: the power of attorney is specific when it refers to a specific juridical act of the principal. B. Express and Tacit Power of Attorney Depending on the way the power of representation is granted, it may be express or tacit (implied). a. Express power of attorney: the power of attorney is express when it is granted by way of a declaration which needs to reach another person, whether that person is the ‘attorney’ (representative) or a third party with whom the transaction will be concluded. b. Tacit power of attorney: the power of attorney is tacit when it is inferred either from the subjacent legal relationship binding representative and represented, or from the overall behavior of the represented, creating the certainty in third parties that he has granted power of attorney to a specific person. For example, this is the case when a businessman has placed a person in a position in the business involving transactions with the public. C. Individual and Collective Power of Attorney Depending on whether one or more ‘attorneys’ (representatives) have been appointed, the power of attorney may be individual or collective. a. Individual power of attorney: the power of attorney is individual when only one ‘attorney’ is appointed. b. Collective power of attorney: the power of attorney is collective when more persons are appointed as ‘attorneys,’ acting either separately or jointly.


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4. Form of the Juridical Act Granting Power of Attorney As a rule, the declaration through which power of attorney is granted is not subject to any special formalities, i.e. for the appointment of an ‘attorney’ suffices an oral declaration. Exceptionally, if it is required that the juridical act with the third party (for the conclusion of which the power of attorney is granted) conform to a certain form, the granting of the power of attorney should be clothed in the same form (Art. 217, 2 CC). Example: If A grants B power of attorney to buy him an immovable property, since for the conclusion of such contract a notarial deed is required by law (Arts. 369 and 1033 CC), the power of attorney should also be vested the form of a notarial deed.

5. Termination of the Power of Attorney Termination of the power of attorney means the end of the ‘attorney’s’ power of representation. A. Reasons for Termination of the Power of Attorney There are two kinds of reasons for termination of the power of attorney: general and special. a. General reasons The general reasons for termination of the power of attorney are the same as in all legal relations. For example: aa. Expiry of the term for which the power of attorney was granted. Example: A granted power of attorney to B for two years. At the expiration of the two year period, the power of attorney is terminated.

bb. Fulfillment of the resolutory condition upon which the power of attorney depended. Example: A gave B power of attorney on condition that the latter would be a permanent resident of Greece. From the moment B settled abroad, the resolutory condition was fulfilled. Consequently, the power of attorney ceased.

cc. Conclusion of the transaction for which the power of attorney was granted.

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Example: A gave B power of attorney to purchase for him an immovable. When the purchase of the immovable was concluded, the power of attorney ceased.

b. Special reasons The special reasons for the cessation of the power of attorney are the following: aa. Revocation of the power of attorney: since the power of attorney is based on a trust relationship between the principal and the representative, if this relationship breaks down, the represented is free to revoke the power of attorney. The power of attorney is freely revocable at any time. The revocation of the power of attorney is made by way of a declaration addressed to the representative or the third party with whom the transaction is to be concluded (Art. 219 CC). If the power of attorney was given by a declaration to a third party, the declaration of its revocation shall solely be addressed to the same party (Art. 221 CC). If the power of attorney was given by way of public announcement, its revocation must be made in the same way. This is necessary for the protection of third parties who need to become aware of the revocation. The power of attorney may be revoked by a simple declaration of the person who granted it. If the power of attorney was given by notarial deed, as is for example the case concerning the sale of immovables, it may only be revoked by notarial deed (Art. 220 CC). bb. Termination of the subjacent legal relationship on which the power of attorney was based, e.g. an employment contract or a business association (Art. 222 CC). Example: A was hired as an employee at B’s store for a year. After the termination of the employment contract between A and B, i.e. after the elapse of one year, the power of attorney which had been tacitly given to A by B (to sell the merchandise of the store to the customers) also ceases.

cc. Death of the principal or the ‘attorney’ (Art. 223 CC): the missing person who was declared an absentee is also considered deceased.6 Moreover, as far as legal persons are concerned, the dissolution of the legal person results in the cessation of the power of attorney.7

6 7

See above Part One, Ch. B, I, 4. See above Part One, Ch. C, III, 1, H, a.


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dd. Incapacity of the principal or the ‘attorney’ to conclude juridical acts, assuming of course that the incapacity occurred after the power of attorney was granted (Art. 223 CC). Example: If, on account of psychological disturbance, either the principal B or the ‘attorney’ A is placed under privative judicial assistance in whole, the power of attorney given to A by B ceases.

ee. Resignation of the ‘attorney’: the resignation of the ‘attorney’ is effected by a declaration of the ‘attorney’ to the person who granted him the power of attorney. B. Consequences of Termination of the Power of Attorney Since the authority of representation ceases with the termination of the power of attorney, the ‘attorney,’ in case the power of attorney was granted to him in writing, is obliged to restitute the power of attorney document or deposit it with a public authority, e.g. the police or a notary public (Art. 227 CC). If the ‘attorney,’ though aware of the cessation of the power of attorney, refuses to restitute the power of attorney document (a private document or a notarial deed), the person who granted the written power of attorney to him has the right to demand from the court to confirm the cessation of the power of attorney and declare the relevant document non effective (Art. 228 CC). C. Transactions after Termination of the Power of Attorney Regarding the validity of the juridical act concluded by the ‘attorney’ after the cessation of the power of attorney, it depends whether at the time of the conclusion of the transaction the ‘attorney’ knew of the cessation or not. a. If at the time of the conclusion of the transaction the ‘attorney’ was unaware of the cessation of the power of attorney, the transaction he concluded is valid and binding for the principal. The transaction is null and void only when the other contracting party knew or should have known of the termination of the power of attorney (Art. 224 CC). Example: B, permanent resident in London, had granted A, permanent resident in Athens, general power of attorney. Because B’s trust in A was shattered, he sent A a notarial deed by mail revoking the power of attorney he had earlier given him. When B’s letter reached A’s residence in Athens, the latter was already in

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Thessaloniki to purchase from C a specific immovable in B’s name and on B’s behalf. Unaware of the revocation of the power of attorney, A concluded the transaction of the purchase of the immovable from C. The contract concluded between A and C is valid and binding for the principal (B) because, at the time it was concluded, the ‘attorney’ (A) was unaware of the fact that B had revoked the power of attorney he had earlier given him. The above transaction would only be null and void – thus creating no obligation for the principal (B) – if the other contracting party (C) knew, or should have known, that A no longer represents B.

b. If at the time of the conclusion of the transaction, the ‘attorney’ knew of the termination of the power of attorney, the transaction concluded is not valid; consequently, it is not binding for the principal8 (Art. 225 CC), unless he approves it. In case the principal does not approve the transaction his representative concluded after the termination of the power of attorney, the representative is obliged, at the choice of the other contracting party, either to perform the transaction or to pay damages.9 Example: A knows that he is no longer B’s representative. Nevertheless, he sells one of B’s vehicles to C as B’s ‘attorney’. This transaction does not create any liability for B vis-à-vis C, unless B approves the sale. If B does not approve the sale, A is liable, at C’s choice, either to perform, i.e. deliver to C the car he sold him as B’s representative, or to compensate him (C).

6. Lack of Power of Attorney For a person to conclude a valid transaction as the representative of another, he must have power of attorney. Moreover, the transaction he concludes must lie within the boundaries of the power of attorney granted to him. If the above two conditions do not concur, the representative acts as a pseudo representative (falsus procurator). Regarding the consequences of such false representation we need to distinguish between contracts and unilateral juridical acts.

8

It is the case of inactive or inoperative juridical act (see above Ch. E, II, 2). In this case Articles 229-234 of the Greek Civil Code are applied, i.e. the law regarding transactions concluded by a pseudo representative (falsus procurator). 9


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A. Contracts A contract concluded by a pseudo representative is binding for the principal only if the latter approves it (Art. 229, 1 CC). Up until then, the transaction is in abeyance.10 In fact, the law gives the other contracting party the right to demand from the principal to expressly approve the contract within a reasonable time determined by the other contracting party himself (Art. 229, 2 CC). The approval11 is given by a declaration addressed to either the other contracting party or the representative. After the approval, the contract has force from the date it was concluded and is binding ex tunc for the principal. If the principal does not approve the contract concluded in his name, he is not liable vis-à-vis the other contracting party. In this case the pseudo representative is liable, at the choice of the other contracting party, either to perform the contract himself, i.e. as if he were the contracting party and had acted in his own person, or to pay damages (Art. 231, 1 CC). The pseudo representative is released from any obligation vis-à-vis the other contracting party only when the latter knew, or should have known, of the absence of authority to represent (Art. 231, 3 CC). Example: A falsely presents himself as the representative of C (pseudo representative) and concludes a sale contract with B regarding a car that belonged to C. If C approves the sale, the contract is binding for him and produces legal effects between B and C. If C does not approve the sale, A is liable, at the choice of B, either to perform the contract, i.e. deliver to B the car he had sold him, or to pay damages to him for the prejudice he caused him due to the non performance of the contract. A is released from any liability only if B knew or should have been aware of the fact that A was a pseudo representative. 10

It is the case of inactive or inoperative juridical act (see above Ch. E, II, 2). Approval is the consent of a third person (i.e. a person who was not a party to the transaction) given after the conclusion of the juridical act. With the approval the juridical act, which up until then was in abeyance, takes force retroactively, i.e. from the time of its conclusion (Art. 238 CC). The approval differs from the consent (which is also the agreement of a third party who was not a party to the transaction) in that the consent is given either before or during the transaction. The consent secures the validity of the transaction for which it is given (Art. 236 CC). Cases where consent is required are, for example, the cases referred in the Article 136 of the Greek Civil Code, according to which for a minor who has completed fifteen years of age to be able to conclude a valid employment contract as an employee, the consent of the persons exercising care over him is required; also the case in the Article 1550 of the Greek Civil Code, according to which for the adoption of a minor, the consent of his parents or of the minor’s legal representative, as well as of the minor himself, if he has completed twelve years of age (Art. 1555, 1 CC) is required. 11

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B. Unilateral Juridical Acts12 Regarding the unilateral juridical acts concluded by a pseudo representative, we need to distinguish as follows: -

if the unilateral juridical act is not addressed to a specific person (e.g. the establishing deed of a foundation resulting from a unilateral juridical act inter vivos), it is null and void (Art. 232 CC); if the unilateral juridical act is addressed to a specific person (e.g. termination of an employment contract), as long as the addressee did not reject it for reasons of lack of representation, it is valid if the principal approved it (Art. 233, 1 CC).

7. Self-contracting We speak of self-contract when the representative concludes a transaction with himself either as the other contracting party or as the representative of a third contracting party. Examples: − A, the representative of B, sells to himself an immovable belonging to B. In this transaction A acts on the one hand as the seller (being the representative of B) and on the other hand as the buyer (acting for himself). − A, the representative of B and C, sells (as the representative of B) an immovable of B’s to himself (acting as the representative of C). In this transaction A acts on the one hand as the seller (acting as the representative of B), and on the other hand as the buyer, (acting as the representative of C).

Self-contracting involves certain dangers because one and the same person represents conflicting interests. It is therefore prohibited by law (Art. 235, 1 CC). Self-contract concluded despite the prohibition of the law is null and void.13 Exceptionally, self-contracting is permitted in the following cases: A. If the principal had authorized it. The permission may be express or implied from the content of the power of attorney, the circumstances, or the principle of good faith governing transactions. 12

See above Ch. C, VI, 1. The nullity is relative and may only be invoked by the principal. Regarding relative nullity, see above Ch. E, II, 3, B, b. 13


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Examples: − The cashier of a shipping company, who acts as the representative of the company, buys for himself a ticket for a cruise. − The employee of a clothing store for women, acting as the representative of the store owner, buys from the store a dress for herself.

B. If self-contracting constitutes exclusively the fulfillment of an obligation of the representative vis-à-vis the principal, of the principal vis-àvis the representative, or, finally, of the principal vis-à-vis another principal (double representation). Examples: − A, who as B’s representative manages his estate, pays to himself (as the representative of B) out of his own money the amount of 1,000 euros he owes him (fulfillment of an obligation of the representative vis-à-vis the principal). − A, who as B’s representative manages his estate, pays from B’s estate to himself (A) the amount of 1,000 euros B owes him (fulfillment of an obligation of the principal vis-à-vis the representative). − A, who is the representative of both B and C and manages their estates, pays from C’s estate (as the representative of C) to himself (as the representative of B) the amount of 1,000 euros C owes to B (fulfillment of an obligation of one principal vis-à-vis another principal).

But even in these exceptional cases where the law allows for selfcontracting, for the juridical act to be valid it must be vested the form of a notarial deed (Art. 235, 2 CC). The reason why the law requires such form is in order to safeguard the interests of the principal. However, because the provision in Article 235, para. 2 of the Greek Civil Code requiring the form of notarial deed was considered excessively austere, it is being accepted14 that the lack of notarial deed may be remedied by the subsequent approval of the transaction by the principal (e.g. approval by the shipping company of the purchase of the cruise ticket by its cashier, approval by the store owner of the purchase of the dress by its employee).

14

See Papantoniou, op. cit., p. 488; Spyridakis, op. cit., p. 783; Simantiras, op. cit., p. 715; Ap. Georgiadis, op. cit., p. 626; Filios, op. cit., Vol. II, 2002, p. 175.

3. Law of Obligations

INTRODUCTION CHAPTER A THE LAW OF OBLIGATIONS I. CONCEPT AND DIVISIONS OF THE LAW OF OBLIGATIONS The law of obligations is the branch of civil law which regulates the obligational relations. The law of obligations is contained in the Second Book of the Greek Civil Code and is divided in two parts: General and Special. The general part contains the general rules which are applicable in every obligational relation. The special part contains the rules which regulate either certain types of contracts (nominate contracts), such as, for example, the contract of donation, sale, lease of a thing, contract for work, loan, or obligations stemming from non-contractual sources, i.e. obligations stemming from tort or from the law (e.g. obligations born of unjust enrichment). II. SIGNIFICANCE OF THE LAW OF OBLIGATIONS The law of obligations is basically the law of contracts. Contracts propel the entire economic life, from the simple everyday transactions to the complex big ones. However, outside of contracts, the rules of the law of obligations regulate on the one hand the compensation for damages, caused from unlawful acts, and on the other hand the shift of proprietary assets not based on a just cause.

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III. FUNDAMENTAL PRINCIPLES OF THE LAW OF OBLIGATIONS The following are the fundamental principles of the law of obligations: -

The principle of autonomy of the private will The principle of good faith The principle of favoring the debtor (or the ‘feebler’ party) The principle of liability

1. The Principle of Autonomy of the Private Will The principle of autonomy of the private will constitutes the foundation of the private law.1 Manifestations of this principle in the law of obligations are the freedom of contracts and the informal character of the juridical acts. Freedom of contracts (Art. 361 CC) means that every person is free not only to decide whether and with whom he will enter into a legal transaction but also what the content of the transaction will be.2 Informal character of the juridical acts (Art. 158 CC) means that for a juridical act to be concluded, no particular form is generally required. The consequence of the principle of autonomy of the private will is that most of the rules of the law of obligations are non-mandatory (jus dispositivum).3 However, in recent times, when increasing numbers of rules of mandatory law are enforced with special statutes, the autonomy of the private will is constantly limited. Thus, both the concept of ‘forced contract’ and the so-called ‘contract of adhesion’ (or accession) were created. More specifically: ‘Forced contract’ is the contract whose conclusion is imposed on the other contracting party (e.g. the extension of leases). ‘Contract of adhesion’ (or accession) is the contract whose content is not determined following negotiations between the parties but the one party formulates it and the other either adheres to it or not (e.g. the standard form contracts into which the

1

The constitutional grounding of this principle may be found in the text of the Greek Constitution (Art. 5, para. 1). 2 See below Part Three, Ch. A, II. 3 See above Introduction to Law, Ch. E, II, 2.

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subscribers enter with public utilities companies such as electricity, telephone, water utilities companies, etc.4). 2. The Principle of Good Faith (bona fides) The concept of good faith which stamps the law of obligations consists in the directness and honesty required in legal transactions. Everyone must act as a direct, honest, fair, and sociable human being. The contracting party should not behave selfishly and antisocially, e.g. pursue the satisfaction of his own interests disregarding the equitable goods enjoyed by others which are affected by the obligational relation. Individual rights must yield to the interests of society as a whole. This definition of good faith coincides with objective good faith. Objective good faith, which is used as a behavioral standard, is distinguished from subjective good faith, which refers to the conviction of the contracting party that his action is based on the existence of a right that he has. That is to say, subjective good faith refers to the contracting party’s inner disposition,5 whereas objective good faith refers to the objectively honest behavior of the contracting party, regardless of what his inner frame of mind might be. Objective good faith is basically founded on Articles 288, 281, and 200 of the Greek Civil Code. More specifically: The provision of Article 288 of the Greek Civil Code that the debtor is required to fulfill his performance according to the requirements of good faith, taking also into account business usage, constitutes the guideline for the operation of every obligational relation. The provision of Article 281 of the Greek Civil Code decrees a general ban on the abusive exercise of all rights, that is, their exercise in violation of 4 5

See below Part Three, Ch. A, III, 5. Examples of subjective good faith: − The person to whom the ownership of a movable thing is transferred, even though it did not belong to the transferring party, is considered to be ‘in good faith’ either if he believes that the person who transferred him the ownership of the thing was indeed the owner, and consequently he had the right to transfer it, or if his lack of such knowledge is not due to gross negligence. See below Property Law, Part Three, Ch. D, II, 2, B. − The person who has in his possession another’s movable object is ‘in good faith’ if he believes that this object belongs to him, i.e. that he (the possessor) is its rightful owner. See below Property Law, Part Three, Ch. D, III, 1, A.

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the principles of good faith, ‘good morals’, and the economic or social purpose of rights.6 Article 200 of the Greek Civil Code stipulates that the interpretation of contracts needs to be done according to the requirements of good faith,7 taking also into account business usage. Moreover, the principle of good faith is established in other provisions of the law of obligations as well, such as in the Articles 388, 197, and 142 of the Greek Civil Code. 3. The Principle of Favoring the Debtor (or the ‘Feebler’ Party) In the law of obligations the tendency to favor the debtor is evident. This happens because the debtor is assumed to be the financially weaker party. However, it is more accurate to say that the law of obligations is permeated by the principle of favoring the ‘feebler’ party, regardless of whether he is the debtor or the creditor or both. This is because in the reciprocal contracts (sale, employment contract, lease of a thing) both contracting parties are at once debtors and creditors. Example: In an employment contract the employee is creditor vis-à-vis the employer regarding his wages and debtor regarding the services he must offer. Correspondingly, the employer is debtor vis-à-vis the employee who works in his business regarding wages and creditor regarding the claim he has for services to be provided.

Provisions imbued by the principle of favoring the ‘feebler’ party are, for example, those of Articles 179, 388, and 409 of the Greek Civil Code. More specifically: The provision of Article 179 of the Greek Civil Code refers to the nullity of an exploitative (usurious) juridical act.8 The provision of Article 388 of the Greek Civil Code refers to the protection of the debtor from an excessively burdensome performance in case there has been an unforeseen change of circumstances after the conclusion of the transaction.

6

See above General Principles, Part Two, Ch. D, II. See above General Principles, Part Three, Ch. D, II. 8 See above General Principles, Part Three, Ch. C, VIII, 2. 7

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The provision of Article 409 of the Greek Civil Code provides for the reduction of a penalty clause if it is excessive.9 4. The Principle of Liability A. According to the principle of liability,10 every person is responsible for the consequences of his acts. The types of liability are: -

Precontractual liability Contractual liability Delictual liability Liability from unjust enrichment

More specifically: a. Precontractual liability Precontractual liability is the liability created during the stage of negotiations (Arts. 197-198 CC).11 b. Contractual liability Contractual liability is the liability created because one of the contracting parties violates his contractual obligations. Whoever concludes a contract must abide by his contractual obligation and implement it (Arts. 287, 361 CC). But if the contracting party does not abide by his contractual obligations, he is obliged − assuming of course that certain conditions concur − to compensate the other party (Arts. 330 et seq., 335 et seq., 340 et seq., 349 et seq., 362 et seq., 380 et seq. CC).12

9

Penalty clause is the amount of money or ‘something else’ the debtor promises to the creditor in case the former does not implement − or does not properly implement − his performance (Art. 404 CC). See below Part Five, Ch. C. 10 Of course, this type of liability is civil liability the purpose of which is to restore the damage suffered by the injured party. Civil liability should not be confused with criminal liability which aims at satisfying the offended legal order by enforcing punishment on the offender (i.e. the punishment provided by the Criminal Code, such as short term imprisonment, long term imprisonment, etc.). See below Part Two, Ch. A, I. 11 See above General Principles, Part Three, Ch. C, VI, 2, A. 12 See below Part One, Ch. A, V, 2, B, a; Part Two, Ch. A, III, 2; Part Four, Ch. B, and Ch. C, III, IV, V.

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c. Delictual liability13 The term delictual liability means that every person is obliged to restore the damage he unlawfully and culpably caused to another (Arts. 914 et seq. CC). d. Liability from unjust enrichment14 Liability from unjust enrichment means that the person who became richer without a lawful cause (unjustifiably) from the property of another or at another’s expense is obliged to return the benefit (Arts. 904 et seq.). B. In principle, the prerequisite for precontractual, contractual, and delictual liability is culpability on the part of the person who caused the damage. The liability which is grounded on fault is called subjective liability and it constitutes the norm.15 Exceptionally, in certain cases, liability is created even without culpability. This is called objective liability.16 The following are examples of instances of objective liability: -

13

The liability of the legal person for actions or omissions of its representing organs (Art. 71 CC).17 The liability stemming from the fault of an underling (Arts. 334 and 922 CC).18 The liability of the person in possession of an animal for damage caused to a third party (Art. 924, 1 CC). The liability of the employer in case of a work related accident (L. 551/1915).

See below Part Three, Ch. B, I, 4, C. See below Part Three, Ch. B, II, 3. 15 See below Part Two, Ch. A, III, 1, A. 16 See below Part Two, Ch. A, III, 1, B. 17 See above General Principles, Part One, Ch. C, III, F. 18 See below Part Two, Ch. C. 14

CHAPTER B OBLIGATION I. THE CONCEPT OF OBLIGATION According to Article 287 of the Greek Civil Code, obligation is the relation whereby a person undertakes to furnish a performance to another. Thus, obligation is a legal relation between two persons where the one is obliged to render performance and the other is entitled to receive performance. The parties involved in an obligation are called debtor (obligor) and creditor (obligee). Creditor is the person entitled to demand performance from another. Debtor is the person obliged to perform. The object of the obligation is performance. Performance is a certain behavior (action or omission) which the debtor is obliged to manifest and the creditor is entitled to demand. Examples: − Performance consisting in action is, in the case of sale, the seller’s obligation to transfer the ownership of the thing sold; in the case of employment contract, the obligation of the employee to offer his services; in the case of lease of a thing, the lessor’s obligation to surrender the use of the thing leased. − Performance consisting in omission is, for example, the promise given by A (employee in B’s store) to the latter that he will not start a similar business in the same area.

II. OBLIGATION AND OBLIGATIONAL RELATION According to the definition given by the Greek Civil Code, obligation is a simple connection between two persons which generates a claim in favor of the one party and a corresponding obligation on the part of the other. However, this phenomenon of simple obligations seldom appears in

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the world of transactions. In most transactions from one and the same legal fact stem not only one but several obligations and corresponding rights. That is, from one obligational relation (called the main obligational relation) stem more obligations, which are either born right from the start, i.e. simultaneously with the main obligational relation, or develop later on, during its unfolding. It follows from the above that the concept of obligational relation is broader than the concept of obligation because from one obligational relation more than one obligation may be generated. Example: The obligational relation of sale, other than the main obligations of the contracting parties (for the seller to transfer the ownership of the thing sold and deliver its possession and for the buyer to pay the agreed price), generates other collateral (derivative) obligations as well, some of which are born right from the start of the obligational relation and others develop during its unfolding. Collateral obligations born from the start are, for example, the obligation of the seller to inform the buyer of the legal relations involving the object sold, his obligation to safeguard the item, package, and ship it. Collateral obligations developing during the unfolding of the obligational relation are, for example, the obligation of the seller to compensate the buyer if the former does not fulfill his obligations, or the obligation of the buyer to notify the seller in a timely fashion about the defects of the thing sold, if any.

III. OBLIGATION AND RESPONSIBILITY Besides the element of obligation, the obligational relation also carries the element of enforceability. This means that, if the debtor does not fulfill his obligation out of his own free will, the creditor is entitled to lodge action against him and, in case he does not conform with the relevant court judgment, to attempt forcible execution on his assets.1 The element of the obligational relation rendering the obligation coercible is called responsibility.2 That is, responsibility consists in the obligation of the debtor to be put through the process of forcible execution in order for the claims of the creditor to be satisfied.

1

See above General Principles, Part Two, Ch. E, I, 5. In the broad sense of the term ‘responsibility’ signifies all the consequences a person suffers in case he offends a lawful good. See below Part Two, Ch. A, I. 2

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IV. NATURAL OR IMPERFECT OBLIGATION In the obligational relation, as was earlier mentioned, the main element is that performance is coerced. However, there are obligations, the so-called natural or imperfect obligations, where the element of coercion of the debtor is missing. In these cases the creditor can not coerce the debtor to fulfill his performance. If, however, the debtor, on his own free will, implements performance, he may not claim it back.3 The following are cases of natural or imperfect obligations: 1. Prescribed Claims When the prescriptive period has been completed, the debtor is entitled to refuse implementation of performance (Art. 272, 1 CC). However, whatever was paid without the knowledge of prescription may not be claimed back (272, 2, 1 CC). Example: B had a claim of 2,500 euros against A but he was negligent and let the time period set by law for prescription go by without pursuing it. His claim has prescribed. After the expiration of the last day of the prescription period B lodges action against A to recover his money. A has the right, by opposing the plea of prescription, to refuse fulfillment of his obligation. But if A does not oppose the plea of prescription and out of his own free will implements performance, he may not claim back what he paid, even if he claims later on that at the time of performance he was not aware that his debt had prescribed.

2. Claims from Game or Bet No claim arises from gaming or betting (Art. 844 CC). However, debts arising from game or bet which were paid voluntarily and without fraud or other deception on the part of the winner, may not be claimed back (Art. 845 CC).

3

See M. Stathopoulos, General Law of Obligations, 3d ed., 1998, p. 43; Ap. Georgiadis, Law of Obligations, General Part, 1999, p. 44.

PART ONE TYPES OF OPBLIGATIONS CHAPTER A TYPES OF OBLIGATIONS ACCORDING TO THEIR OBJECT I. GENERIC AND SPECIFIC OBLIGATIONS 1. The Concept of Generic and Specific Obligations Generic obligation or obligation in kind is the obligation whose object of performance is determined only by the general characteristics of the genus to which it belongs. This obligation is distinguished in obligation of pure genus and obligation of limited genus. Obligation of pure genus exists when the thing due is always available in the market. Examples: − A owes B 100 kilos of Tripoli apples. − A owes B a 2004 Peugeot 206 vehicle.

Obligation of limited genus exists when the thing due will be taken from a limited stock of the entire genus. Examples: − A owes B 100 kilos of Tripoli apples from his (A’s) apple orchard. − A owes B 1,000 kilos of grain from the grain stored in his (A’s) barn.

Specific obligation is the obligation whose object is determined by individual characteristics. That is, in the specific obligation the thing to be furnished to the creditor is predetermined. Examples: − A owes B the passenger vehicle with license plate number “YAH 1983”.

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− A owes B the apartment No 7, on the second floor of the apartment building located on 555 Patission Street.

2. The Significance of Distinguishing between Generic and Specific Obligations In generic obligations, due to the inexhaustible number of items contained in the genus, there cannot be impossibility of performance (genera non pereunt). This means that the chance destruction of one item from the genus does not release the debtor from his obligation to perform but he is obliged to give another item, identical with the one that was destroyed. This is because, since the genus was not destroyed, other things identical to the one that was destroyed do exist. In this instance we say that the risk of chance destruction of an object is borne by the debtor. Example: If, due to a chance event (fire, flood), the 100 kilos of Tripoli apples − or the 2004 Peugeot 206 vehicle − are destroyed (items that A intended to furnish to B), A is not released from his obligations but is obliged to furnish to B another 100 kilos of Tripoli apples or another 2004 Peugeot 206 vehicle respectively.

In specific obligations the chance destruction of an item owed releases the debtor who no longer has the obligation to perform. That is to say, in specific obligations the risk of chance destruction is borne by the creditor. Example: If, due to a chance event, the passenger vehicle with license plate “YAH 1983” that A owes to B is destroyed, A is released from the obligation to furnish a car to B.

3. Choice In the generic obligation the right to choose, i.e. to determine the thing to be furnished, belongs to the debtor, unless a different conclusion may be drawn from the relationship (Art. 289, 1 CC). This provision of the law is non mandatory;1 consequently, it is possible for the parties to agree that the right of choice belongs to the creditor. As concerns the quality of the thing to be furnished, regardless of who has the right to choose, the law sets forth the limitation − if, of course, the contracting parties have not agreed otherwise − that the thing to be furnished should be of at least average quality (Art. 289, 2 CC). 1

Regarding the non-mandatory rules of law (jus dispositivum), see above Introduction to Law, Ch. E, II, 2.

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4. Specification (or Concretization) Specification or concretization of the obligation signifies the transformation of the obligation from generic to specific. With concretization the object of the obligation becomes a specific thing or a specific quantity owed thereafter. Consequently, the risk of chance destruction is transferred from the debtor to the creditor. Mere choosing does not bring about specification of the obligation. The ways for an obligation to become specified are: A. Subsequent Agreement between the Parties The contracting parties later on agree that the object of the obligation becomes ‘focused’ on a specific thing or a specific quantity of the genus which will be owed thereafter. Examples: − A owes to furnish a 2004 Peugeot 206 vehicle to B. Subsequently, A and B agree that the vehicle to be furnished is the 2004 Peugeot 206 with license plate No 23323 and engine No 5322. − A owes to furnish 100 kilos of Tripoli apples to B. Subsequently, A and B agree that the apples to be furnished are the 100 kilos of Tripoli apples placed in specific crates with B’s name on them.

B. Delivery by the Debtor to the Creditor of the Thing or Quantity Selected In this case we have extinction of the obligation due to its fulfillment. Examples: − A delivers to B the 2004 Peugeot 206 vehicle he owes him. − A delivers to B the 100 kilos of Tripoli apples he owes him.

C. Dispatching the Thing or Quantity Owed to a Different Location than the One Agreed Following the Creditor’s Request In this case the obligation becomes specified from the time it was delivered for dispatch to the person responsible for its transportation (Art. 290, 2 CC). At this point it should be emphasized that it is not sufficient for the delivery to be shipped to just any location; the location of its destination must be different from the location initially agreed as the place of performance. Examples: − A owed B a 2004 Peugeot 206 vehicle which he was supposed to deliver to him in Athens. Before the delivery of the vehicle, B asked A to send it

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to him in Patras. From the time the vehicle was loaded in order to be shipped from Athens to Patras, the obligation was specified and thereafter ‘focused’ on the particular vehicle that was loaded in order to be transported. This means that if on the way − and up until the time the vehicle is delivered to B − it gets destroyed by a chance event, A is not obliged to provide B with another vehicle. − A owed B 100 kilos of Tripoli apples which he was supposed to deliver to him in Athens. If B, before they were delivered, asked A to deliver them to him in Halkis, from the moment the apples were loaded for the purpose of transportation from Athens to Halkis the obligation was specified and thereafter ‘focused’ on the specific apples loaded for transportation − now the only ones due. If, of course, it was mentioned in the original agreement that the place of performance would be Patras (in the case of the car) or Halkis (in the case of the apples), no specification of the obligation occurs from the moment the car or the apples were loaded in order to be transported from Athens to Patras and to Halkis respectively. The reason for this is that in this instance the obligation is not implemented in a location other than the one it was supposed to have been.

D. Separation by the Debtor of the Thing/Quantity Due for Delivery and Creditor’s Default in Acceptance In this instance for specification to take place the following two conditions need to concur (Art. 290, 1 CC): a. Separation from the genus of a thing or quantity to be furnished resulting from a unilateral act on behalf of the debtor who has the right of choice. b. The creditor needs to be in default2 regarding the acceptance of the delivery of the thing or quantity owed to him. Examples: − A owed B a 2004 Peugeot 206 vehicle and they had agreed that on May 15 B would go to A’s shop to get it. On that day A had indeed a 2004 Peugeot 206 vehicle ready for delivery, but B did not go to pick it up. From that time on B (the creditor) is in default and the obligation has thus become specified. The vehicle owed to him thereafter is the specific vehicle A had prepared for B. This implies that, if subsequently on account of a chance event the specific vehicle gets destroyed, A has no obligation to furnish another car to B. − A owed B 100 kilos of Tripoli apples and the two of them had agreed that on July 20 B would go to A’s store to pick them up. On that date, however, while B had the apples in cases ready for pick up, B did not show up. From that time on B is in default and the obligation has thus become specified or concretized. 2

The creditor is in default if he does not accept the performance (appropriate and ‘in deed’) offered to him (Art. 349, 1 CC). See below Part Four, Ch. B, IV.

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Thereafter only the specific apples A had prepared for delivery are due. Consequently, if later on the specific apples get destroyed by a chance event, A is not obliged to furnish other apples to B.

E. Destruction of the Entire Genus Except for the Thing or Quantity Owed This is a rare instance which can be encountered in generic obligations of the limited genus. Examples: − A sold B a Peugeot 206 vehicle from those he had in his lot. But before the fulfillment of the car dealer’s obligation, a fire broke out destroying all the Peugeot 206 vehicles in A’s lot, minus one. In this instance the obligation becomes specified and thereafter only the remaining specific vehicle is due. − A sold B 1,000 kilos of grain from the grain he kept in his barn. But before the fulfillment of the farmer’s obligation, a flood destroyed all the grain in A’s barn, minus 1,000 kilos. In this instance the obligation becomes specified and is thus ‘focused’ on the remaining 1,000 kilos of grain.

II. ALTERNATIVE OBLIGATION 1. The Concept of Alternative Obligation Alternative obligation (obligatio alternativa) is the obligation where two or more performances are due but only one will be rendered (Art. 305 CC). Examples: − A agrees with B to lease to him either car x or car y. − A agrees with B to sell him either car x or car y.

The obligation is also alternative if only one performance is due but there is an option as to other particulars, such as, for example, the place, time, or mode of the performance. Examples: − The car A must furnish to B will be furnished either in Athens or in Lamia (place of performance). − The car A must furnish to B will be delivered either on March 1st or on May 1st (time of performance). − B will pay for the car he buys from A either in cash or in installments (manner of performance).

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2. Simplification of the Alternative Obligation Simplification of the alternative obligation means that the obligation is limited to one of the alternative performances due. A. The alternative obligation is simplified in the following ways: a. Option The option is exercised with a declaration of the one party to the other. This declaration is irrevocable and may not be subject to condition or timeclause. The right of option belongs to the creditor or the debtor depending on the agreement of the parties. However, in case the parties have not agreed, it belongs to the debtor (Art. 305 CC). b. Fulfillment of performance The obligation is also specified if performance has been effected, in which case the obligation is also extinguished. c. Subsequent agreement between creditor and debtor With a subsequent agreement between creditor and debtor it is specified which of the two alternative performances will be chosen. d. Impossibility of performance When one of the two or all but one of the alternative performances due become impossible on account of a chance event, the obligation is ‘focused’ on the remaining one. B. The practical significance of the simplification of the obligation is that, following simplification, in case of destruction by chance event of the one obligation now owed, the debtor is released, i.e. the creditor bears the risk of chance destruction. Needless to say that prior to simplification, in case of chance destruction of one of the alternative obligations, the debtor is still responsible for the other. 3. Alternative Faculty In the alternative faculty (facultas alternativa) only one performance is due but the debtor may furnish another in its place and thus be released from all legal obligations.

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Example: A owes B a motorcycle but they have agreed that at the time of performance A may furnish the cash value of it instead.

4. The Difference between Alternative Obligation and Alternative Faculty In the alternative obligation two or more performances are owed out of which only one will be furnished, e.g. A owes B either car x or car y. If, up until the time the performance is implemented and before simplification occurs, one of the performances due is destroyed by chance event, the remaining ones are due, e.g. if by chance car x is destroyed, car y is due. In the alternative faculty only one performance is owed but the debtor has the option to furnish another one instead, e.g. A owes to furnish car x to B but retains the option of furnishing car y instead. In case of destruction by chance event of the performance due, i.e. if by chance car x gets destroyed, A has no obligation vis-à-vis B to furnish car y. III. MONETARY OBLIGATION 1. The Concept of Monetary Obligation and Money Monetary obligation is the obligation where the thing due is a sum of money, e.g. A owes B 3,000 euros. In order for the monetary obligation to be understood, we need to refer to the concept of money. There are two kinds of money: money in the broad sense of the term (lato sensu) and money in the strict sense of the term (stricto sensu). A. Money in the Broad Sense of the Term Money in the broad sense of the term is defined as the movable things used in transactions as a means of exchange of commodities and the measure of their value.3 More specifically: By means of exchange of commodities we understand that money is the exchange given or received in order to acquire or dispose of a certain commodity.

3

See K. Christodoulou, The Monetary Obligation, 1999, p. 86 et seq.

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By measure of the commodities’ value we understand that the value of the commodities is measured in money. In the broad sense of the term money signifies all currency, local as well as foreign, plus ‘accounting’, ‘plastic’, and ‘electronic’ money. More specifically: By ‘accounting’ money4 we understand the check, the draft, the order for money transfer from one account to the other, the deposit of money by the debtor to the account of the creditor, etc. Today this is the means of payment used increasingly in the most important transactions. It is accurate to say that the use of ‘accounting’ money facilitates the transactions and accelerates their pace. Moreover, it minimizes the risk of loss or theft of traditional currency. By ‘plastic’ money5 we understand the credit cards. With these credit cards one can purchase goods or services without making payment in cash. Instead, the debtor signs a slip. The obligation assumed by the owner of the credit card is towards the issuer of the credit card to whom he subsequently pays, the total amount or in installments, all the sums indicated in the slips he has signed with the interest agreed upon and the agreed upon commission, usually an annual fee. The ‘electronic’ money6 has the characteristics of ‘accounting’ money and of ‘plastic’ money. It works as follows: the Bank with which a person has an account issues him a plastic card with an electronically sensitized magnetic strip which he may use to make payments to all the business equipped by the issuing Bank with the appropriate equipment for the use of this system. In this fashion the Bank account of the owner of this type of card is charged and the Bank account of the business from which the person made purchases by using this card is credited accordingly. ∗

4

See G. Kallimopoulos, The Law of Money, 1993, p. 44 et seq. See El. Charyssi – Stamou, The Credit Card, 1984; Kallimopoulos, op. cit., p. 61 et seq.; S. Psychomanis, Bank Law – The Law of Bank Contracts, Vol. I, 5th ed., 2001, p. 69 et seq. 6 See Kallimopoulos, op. cit., p. 71 et seq.; Psychomanis, op. cit., p. 71 et seq. In the USA these cards are often called “Check Cards” because they act as checks and the debit slips are cashed against the owner’s account in the Bank the way a check would be. See, for example, the Washington Mutual “Check Card – Debit” (Translator’s note). 5

∗

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B. Money in the Strict Sense of the Term Money in the strict (narrow) sense of the term is the currency of a country (e.g. in Greece it is the euro) and it is compulsory for this currency to be accepted in all transactions.7 This means that the debtor is obliged to make payment in this currency and the creditor to accept the same under penalty of being considered in default. 2. The Value of Money The basis of currency is the currency unit which in Greece was the drachma since 1833. However, since January 1, 2002 the drachma has been replaced by the euro.8 Money has a nominal value, an external or exchange rate value, an inner value (its value as metal), a purchase value, and a real or current value. More specifically: Nominal value is the number of currency units printed on the currency (banknote or coin). This value is immutable and it is the only value taken into consideration for the payment of debts, regardless of how the inflation index has affected the real value of money (upwards or downwards). Example: A loaned 1,500 euros to B and the latter must repay him the loan in two years. Consequently, after the completion of two years B owes to pay back 1,500 euros to A (with or without interest, according to their agreement) regardless of whether at the time of performance the euro has gone up or down in real value.

External or exchange rate value is the relationship of the currency with foreign currency (one or more). The exchange rate value of the currency is variable and depends on the equivalency the domestic currency has with the foreign currency at any given moment. By inner value of the currency (its value in metal) we understand the value of the material the currency is made of. As such only the coins have inner value.

7

Since January 1, 2002 the euro is the common currency of twelve member states of the European Union (Austria, Belgium, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal, and Spain). 8 In Greece the ‘drachma’ was established as currency unit by the RoyD of February 8/22, 1833. It replaced the ‘phoenix’ of Governor Ioannis Capodistrias. In this regard see A. Gazis, in ERMAK, Introduction to Arts. 291-292, No 9.

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Purchase value is the equivalency the currency has vis-à-vis the various goods. Example: Today five euros buy a certain item. After some time, for the purchase of the same item one may need more or less euros.

Real or current value is the value determined on the one hand by the purchase power of the currency and on the other hand by the exchange rate. This value is not stable. It is determined by the law of demand and supply. 3. The Introduction of the Euro as the Legal Currency of Greece9 A. General The accession of Greece to the Economic and Monetary Union and the introduction to our country of the single currency, the euro (since January 1, 2001 in its logistic form and since January 1, 2002 in the physical form in which it circulated), signals a new era for the Greek economy. The single currency greatly facilitates transactions within the eurozone because it does away with the cost of exchange of national currencies and the risk from the fluctuation of the between them correspondence. But, mainly, it needs to be emphasized that with the single currency the eurozone now plays an important role in the international economic scene and contributes to the consolidation of global economic stability. B. The Institutional Framework of the Economic and Monetary Union The institutional framework for the creation of the Economic and Monetary Union was set up in 1992 with the provisions of the Treaty on the European Union (Treaty of Maastricht) which modified the Treaty of the European Community.10 It was planned that this economic and monetary reform would be implemented in three stages.11 9

Regarding the euro, see Union of Greek Banks (ed.), Adjustments and Repercussions on the Greek Bank Sector of the Economic and Monetary Union and the Introduction of the Euro, 1998; Ap. Georgiadis - Th. Liakopoulos, Euro and the Law, 1999; Union of Greek Banks (ed.), The Euro and Us, 2000; N. Moussis, European Union, 9th ed., 2001, p. 119 et seq. 10 See Articles 98-124 of the Treaty of the European Community under title VII “Economic and Monetary Policy.” 11 The first stage (July 1, 1990 – Dec. 31, 1993) included mainly the lifting of restrictions in the movement of capital within the European Union. The second stage (Jan. 1, 1994 – Dec. 31, 1998) signals the establishment of the European Monetary Institute (EMI) the main goal of which is to establish a unified monetary policy in the eurozone. It is important to

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For the operation of the Economic and Monetary Union two institutions were created: the European System of Central Banks (ESCB) and the European Central Bank (ECB).12 More specifically: The primary goal of the European System of Central Banks, which includes the European Central Bank and the national central banks of all the member states of the European Union,13 is to maintain price stability.14 The European Central Bank issues the regulations and makes the decisions that are necessary for carrying out the tasks entrusted to it by the European System of Central Banks.15 The national central banks operate according to the set of directions given to them by the European Central Bank.16 However, at this point it should be particularly emphasized that the European Central Bank has the exclusive right to authorize the issuance of banknotes in euro within the European Union. The European Central Bank and the national central banks may issue such banknotes. Regarding coins in euro, the member states may issue them but their quantity is subject to approval by the European Central Bank.17 Especially as regards the monetary policy of the eurozone,18 this is carried out by the eurosystem which is composed of the Central European Bank and the twelve national central banks of the eurozone countries. Its main goal is to maintain price stability.19

emphasize that during this stage begins the implementation of the process of smooth functioning of the ecu clearing system for the fifteen member states. The third stage began on January 1, 1999 with the adoption of the unified currency of the euro by the eleven member states of the European Union which applied and fulfilled the requirements. These states were Austria, Belgium, Finland, France, Germany, Ireland, Italy, Luxembourg, The Netherlands, Portugal, and Spain. Greece adopted the euro on January 1, 2001. 12 See Art. 8 Treaty of the European Community. 13 See Art. 107, 1 Treaty of the European Community. 14 See Art. 105, 1 Treaty of the European Community. 15 See Art. 110, 1 Treaty of the European Community. 16 The Central European Bank whose headquarters are in Frankfurt is in constant collaboration with the national central banks. 17 See Art. 106 Treaty of the European Community. 18 The eurozone is the set of member states of the European Union which have accepted the euro. 19 See Art. 105 Treaty of the European Community.

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C. Legal Framework for the Euro a. The most important provisions regarding the euro are contained in two Regulations.20 They are EC Council Regulations No 1103/1997 of June 17, 1997 and No 974/1998 of May 3, 1998, which constitute the legal framework for the establishment of the euro as the single European currency.21 Council Regulation (EC) No 1103/1997 regarding certain provisions related to the introduction of the euro, put in force on June 20, 1997, aims at regulating certain necessary topics connected with the transition to the single currency system. With this Regulation the following were basically established: (1) Beginning January 1, 1999, the euro replaces the official accounting unit ECU on a one to one basis.22 (2) The “principle of the continuity of contracts” is established, meaning that the introduction of the euro does not alter the terms of the legal transaction nor does it give the contracting parties the right to invoke this change in order to avoid fulfilling their contractual obligations.23 (3) Matters concerning the conversion in euro of sums expressed in the national currencies of the member states24 are established. Council Regulation (EC) No 974/1998 regarding the introduction of the euro, which was put in force on January 1, 1999, regulates specific legislative matters and determines the time frame for the introduction and establishment of the euro as the single currency. With this Regulation it was determined that when on January 1, 2002 the euro banknotes and coins would be put into circulation, they would constitute legal currency in all fifteen participating member states25 and their use would be compulsory.26 The same Regulation also stated that when in a legal transaction there is 20

Regarding the binding character of the Regulations, see above Introduction to Law, Ch. C, V, 2. 21 See Georgiadis - Liakopoulos, op. cit., pp. 9 et seq., and 83 et seq.; Christodoulou, op. cit., p. 220 et seq. ; Union of Greek Banks (ed.), The Adjustments… op. cit., p. 14 et seq. 22 See Art. 2 of Council Regulation (EC) 1103/1997. 23 See Art. 3 of Council Regulation (EC) 1103/1997. 24 See Art. 4 of Council Regulation (EC)1103/1997. 25 Participating member states are the twelve member states that belong to the eurozone (see above footn. 18). 26 See Arts. 10 and 11 of Council Regulation (EC) No 974/1998. In Greece the system of mandatory circulation of currency has been in force since 1932 (L. 5422/1932, as modified by L. 362/1945, L. 128/1975, and L. 1083/1980). This means that the banknotes could not be exchanged in the Bank of Greece with the equivalent in gold or foreign currency.

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reference to national monetary currency units, such reference will be considered made to the euro according to the corresponding exchange rate.27 b. In Greece the first law dealing with matters that follow the introduction of the euro is L. 2842/2000 entitled “Additional Measures for the Application of Council Regulations (EC) Nos 1103/1997, 974/1998, and 2866/1998, as Operative with Regards to the Introduction of the Euro”. With this law additional measures are taken for the application of the Regulations referred therein, special provisions for the introduction of the euro in Greece are enacted and issues of immediate priority in this regard are regulated.28 Article 1 of L. 2842/2000 stipulates the following: (1) From January 1, 2001 the euro replaces the drachma as the national currency of Greece. (2) As a means of payment of obligations the euro is always considered at its nominal value. This last clause incorporates the principle of nominalism according to which money in the strict sense of the term is always considered at its nominal value.29 The same law also regulates the conversion of drachmas into euros and refers to the ‘rounding up’ which in principle is regulated by the relevant provisions of Council Regulation (EC) No 1103/1997. Follows L. 2948/2001 entitled “Circulation of Banknotes and Coins in Euro and Tax Regulations for the Introduction of the Euro.” This law attempts to adjust Greek legislation to Community rules regarding the circulation of banknotes and coins in euro.30 Article 1 of L. 2948/2001 stipulates that beginning January 1, 2002, the banknotes and coins of euro are put in circulation. The same law stipulates that, whereas the banknotes in euro are issued by the European Central Bank or the national central banks upon approval of the European Central Bank, the right to issue metallic coins in euro, of any value, belongs to the state of Greece.31 Finally, this law regulates tax matters which emerged with the introduction of the euro on January 1, 2002. 27

See Art. 14 of the Council Regulation (EC) No 974/1998. See Introductory Report of L. 2842/2000, in I. Nikolaidis, Legislation of the Economic and Monetary Union – EURO, 2001, p. 358 et seq. 29 In Greece the principle of nominalism was already in force since 1932 (see Art. 1, 2 L. 5422/1932, and Art. 2 L. 362/1945) and according to it the drachma, as a means of payment of obligations, was taken at its nominal value, i.e. drachma = drachma. 30 See Introductory Report of L. 2948/2001, in KNoB, 2001, p. 2949. 31 The exercise of this right continues to be governed by the provisions of Article 3 of the Charter of the Bank of Greece − having the validity of law (L. 3424/1927, as later modified) − which provides for the issuance of the coins to be put into circulation exclusively by the 28

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4. Rules Applying to the Monetary Obligation The monetary obligation is a ‘value debt’ because the money due is not due as a ‘material thing’ but as thing representing a certain economic value.32 As debt the monetary obligation is regulated by special rules the most important of which are the following: A. In monetary obligations impossibility of performance is not conceivable. Money will always be available for the payment of an obligation. If the debtor has no money, he is not released from the obligation to make payment. B. Unless otherwise agreed between creditor and debtor, the monetary obligations are obligations payable at the creditor’s domicile (Art. 321 CC). C. In monetary obligations in case of debtor’s default,33 the creditor has the right to claim default interest without having to prove prejudice (Art. 345 CC). D. Only for monetary obligations is it possible to issue bills of exchange, bills to order, checks. 5. Payment of Monetary Obligations A. Debt in National Currency In the case of debt in national currency, i.e. in euro, according to the principle of nominalism the debtor is obliged to pay the amount of euros he owes, regardless of whether the euro has in the meantime been devalued or gone up in value. Example: A leased his apartment to B for three years for 350 euros per month. According to the principle of nominalism, B has to pay the 350 euros monthly for the entire three year period, regardless of whether the rental value of the immovable property (already at the expiration of the first year) is much greater due to inflation.

The principle of nominalism is quite unfair especially at times of financial crisis. However, the principle of good faith in the fulfillment of the Bank of Greece and for the relevant expenses to be charged to the budget of the Ministry of Finance (see Introductory Report of L. 2948/2001, op. cit.). 32 ‘Money due’ includes the logistic, plastic, and electronic money. 33 The debtor is in default when, due to fault of his own, he delays the fulfillment of a performance that has fallen due (Art. 340 et seq. CC). See below Part Four, Ch. B, II.

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performance takes precedence. The court may, by applying the principles of good faith, make an adjustment of the monetary obligation due.34 Examples of adjustment of monetary obligations may be found in jurisprudence in the cases of rental agreements of immovable property.35 B. Debt in Foreign Currency In the case of monetary obligation in foreign currency payable in Greece the debtor, if not otherwise agreed, has the right to make the payment in national currency, i.e. in euro, based on the current exchange rate of the foreign currency at the time and place of performance (Art. 291 CC). In this instance it is the case of alternative faculty which the debtor has only if it was not otherwise agreed, i.e. that the payment will be made in physical foreign currency. IV. OBLIGATION TO PAY INTEREST 1. The Concept of Interest Interest is that which is paid in exchange for the use of capital (usura). The capital consists of money or other fungible things. The interest is of the same nature as the capital. Examples: − A loaned money to B, i.e. the principal is monetary. The interest owed by B is also money. − A loaned grain to B, i.e. the principal is grain. The interest owed by B is also grain.

34

See G. Balis, Law of Obligations, 3d ed., 1969, para. 17, No 2, p. 70 et seq. ; Stathopoulos, op. cit., p. 230 et seq.; P. Filios, Law of Obligations, General Part, 2nd ed., 1996, p. 89 et seq.; Kallimopoulos, op. cit, pp. 168 et seq. and 365 et seq. 35 See AP 927/1982, in NoB 31 (1983), 214; AP 351/1985, in NoB 33 (1985), 1188; AP 481/1990, in NoB 39 (1991), 921; AP 382/1997, in NoB 46 (1998), 513; Athens Court of Appeals 3260/1982, in NoB 30 (1982), 938; Athens Court of Appeals 5227/1994, in NoB 43 (1995), 734; Athens Court of Appeals 11145/1996, in Rev. Law of Apt. Buildings (1998), 92; Athens Court of First Instance 2898/1993, in NoB 42 (1994), 1016; Thessaloniki Court of First Instance 6259/1993, in NoB 42 (1994), 94; Athens One-member Court of First Instance 8440/1995, in ArcN (1997), 800; Piraeus One-member Court of First Instance 19/1996, in Arm. (1995), 628; Piraeus One-member Court of First Instance 567/1996, in Arm. (1996), 719.

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Interest is a secondary obligation. This means that it cannot exist unless a main obligation exists, i.e. an obligation regarding principal. The derivative obligation of interest follows the fate of the main obligation of the principal.36 The interest rate, i.e. the percentage of principal due as interest for a certain period of time, is the measure of the amount of interest due. 2. Types of Interest There are three kinds of interest: -

Contractual interest Legal interest Discount interest

More specifically: A. Contractual Interest (Interest by Agreement) Contractual interest is the interest stemming from an agreement, i.e. the interest agreed upon by the contacting parties. However, the relevant agreement of the parties must be within the bounds of the law because only then is the interest legitimate. In principle,37 the upper limit of permissible interest rate is determined by the European Central Bank.38 If not otherwise agreed, the contractual interest is due annually. If the interest rate agreed upon exceeds the upper limit permitted by law, the contract is null and void “as regards the excess” (Art. 294 CC), i.e. the contract remains valid and only the lawful interest rate is due. Example: A loaned B 1,500 euros at the interest rate of 40%. The loan contract concluded between A and B is not null and void in its entirety but only as regards

36

Of course, it is possible to have a monetary obligation for the principal without a secondary one for interest. This is the case of loan without interest. 37 Naturally, both the contracting parties and the competent authorities (e.g. the Council of Ministers regarding the determination of contractual, legal, and non-banking interest rates charged on account of delay) may set a different basis for the determination of interest rates (See Art. 3, para. 2 of L. 2842/2000 and the Introductory Report of the Law in question under Art. 3, op. cit.). 38 Since June 6, 2003 the upper limit for contractual interest rate is set at 8% annually (Board of Directors decis. of the European Central Bank, June 5, 2003).

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the part agreeing on an interest rate higher than the lawful. The loan contract remains valid but the interest rate due is only the highest permitted by law.

B. Legal Interest Legal interest is the interest determined by law. The most common case of legal interest is the default interest, i.e. the interest due by the defaulting debtor of a monetary obligation (Art. 345 CC).39 The legal interest rate is determined at 2% higher than the upper limit of contractual interest rate.40 Example: A owed B the amount of 1,500 euros due and payable on May 15, 2004. To this day A has not made any payment to B, even though his delay in performance cannot be attributed to any extraordinary reason for which he could be excused. On account of this delay A owes B interest on the principal for the time beginning on May 16, 2004 to date. The interest will be computed at the lawful limit which was in force each year.

C. Discount Interest Discount interest is the amount corresponding to the profit of the creditor in case of an early payment of the debt. Example: A owed B the amount of 3,000 euros which he had to pay back on June 15, 2005. If A were to pay off his debt on December 15, 2004, B, who would thus have the 3,000 euros back six months earlier, could use it mainly by loaning it at an interest. Consequently, on June 15, 2005, other than the 3,000 euros, B would also have the interest this amount would bring for six months. This extra amount of money, corresponding to the interest of 3,000 euros for six months, is the discount interest.

According to the law, the debtor paying off his debt earlier than the appointed time is not entitled to deduct the discount interest unless the creditor has agreed to it or it results from the law (Art. 324, 2 CC).41 39

There is also the category of legal interest in the narrow sense of the term, which is the interest on debts due to the state and the lis pendens interest (Art. 346 CC), i.e. the interest due by the defendant (in case of action taken against him on account of a monetary debt) as from the notification of the writ initiating legal proceedings. 40 Since June 6, 2003 the upper limit of interest rate for legal interest is set at 10% annually maximum (Board of Directors, decis. of the European Central Bank , June 5, 2003). 41 In Article 1227 of the Greek Civil Code an exception to this rule is provided: a pledger, who retrieves the movable thing prior to the time the pledge agreement matures on account of

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This provision, of course, is being criticized as contrary to the principle of favoring the debtor. 3. Compound Interest Compound interest is the computation of interest on the combined original principal and interest accrued, i.e. interest on interest (usurae usurarum). Because the agreements regarding compound interest are dangerous, the law (Art. 296, 1 CC) allows them only under the following circumstances: -

the interest due must be of at least one whole year; the agreement between creditor and debtor regarding such compound interest must be concluded ex post facto, i.e. after the end of the year.

If one of the above conditions is absent, the agreement is null and void. Exceptionally, according to express provision of the law (Art. 296, 2 CC), savings and credit institutions as well as banks may determine in their charter or agree in advance that uncollected interest accrued on deposits will be deemed a new interest-bearing deposit. Example: On January 15, 2004 A loaned to B the amount of 1,500 euros for two years at the interest rate of 8%. − On January 16, 2006 B would pay back to A the amount of 1,500 euros plus the interest of two years, i.e. 240 euros (120 euros per year). Thus, the total of B’s payment would be 1,740 euros. − If after the expiration of the first year A and B agree to compound interest, B’s payment on January 16, 2006 will be 1,750 euros. This is because on January 16, 2005 B’s debt will be 1,500 euros for the principal plus 120 euros for the interest, a total of 1,620 euros; but on January 16, 2006, on account of the agreement to compound interest, the debt will be 1,620 euros for the principal plus 129.60 for the interest, a total of 1,749.60 euros (that is, in the second year the interest will be computed on a principal of 1,620 euros).

the creditor’s violation of his obligations stemming from said agreement, may deduct the discount interest. Also the banks are allowed to deduct discount interest if they are paying bills of exchange or notes to order prior to maturity. That is, in this case the bank gives the bearer of the bill of exchange or the note to order the amount of his claim minus the amount of interest corresponding to the time period between the point of prepayment and of maturity of the title (Art. 48, para. 2 of L. 5325/1932).

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V. OBLIGATION TO COMPENSATE 1. The Concept Obligation to compensate is the obligation whose performance consists in furnishing reparations to the party that was harmed for the prejudice caused to him. The purpose of compensation is not to impose sanctions on the culprit but to provide the injured party with a counterweight capable of balancing out the prejudice caused to him. The sum total of the rules regulating the obligation to compensate − different as the reasons for the generation of such obligations may be − is called system of civil liability or general law of compensation.42 2. Conditions for the Obligation to Compensate The conditions for the obligation to compensate are: -

Damage Legal grounds for liability Causal relation between the damage and the grounds for liability

Before examining separately each of the conditions for the obligation to compensate, it should be pointed out that the relevant rules are not grouped together. They are spread out in different sections of the Greek Civil Code as well as in special statutes. A. Damage a. Concept and types of damage Damage (damnum) is the loss a person suffers in material or intangible goods. Damage may be property related or non-material, ‘moral’ damage. Property damage is the damage a person suffers − damage assessed in money − when his material assets are harmed, e.g. destruction of a thing. Non-property damage or ‘moral’ damage is the grief caused to a person. This damage, which cannot be assessed in money, may be caused to 42

Civil liability is different from criminal liability. In the case of criminal liability the culprit is subject to public punishment according to the provisions of the criminal law. That is, in the case of criminal act the punishment constitutes a sanction imposed on the culprit. See below Part Two, Ch. A, I.

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a person when his non material goods are offended, i.e. his personality on account of slander or defamation. The reason for restituting ‘moral’ damage is to alleviate the emotional pain of the party that was harmed and to comfort him psychologically. ‘Pain and suffering’ is one form of ‘moral damage.’ It is the pain a person feels when another person’s good is offended. For example, when a person is killed, the victim’s family experiences such suffering. As long as the conditions for creating civil liability exist, property damage is always restituted, whereas the non-property damage is satisfied with an allotment of money43 only when the law so stipulates. Such are the cases of offense against the personality (Art. 59 CC) or of any other unlawful act (Art. 932 CC). Sometimes the prejudice to non-material things generates both material damage and ‘moral’ damage. Examples: − When a medical doctor is defamed, his property damage consists in the loss of income for the doctor on account of the defamation, whereas his ‘moral’ damage consists in the grief the doctor experiences. − When a worker is injured, his property damage consists in his medical expenses and the income he eventually lost on account of his hospitalization. His ‘moral’ damage consists in the emotional pain he suffered because of the injury.

b. Types of property damage Property damage is basically distinguished in positive damage (quantum abest) and loss of profit (quantum lucrari potui, or lucrum cessans). Positive damage is the reduction of the assets of the injured party. Loss of profit is the profit one expects with certainty, according to the normal course of events or the special circumstances and particularly according to the preparatory measures the parties may have taken. Usually it is easy to prove positive damage. However, loss of profit, the profit that would have materialized had the harmful event not taken place, is determined hypothetically on the basis of objective criteria. Example: Due to A’s fault damage is caused to B’s cab resulting in his having to leave the vehicle at the car repair shop for five days to get it fixed. The expenses for the repair of the cab are the positive damage, whereas loss profit is what B would have made if he had been working his cab during the five days the vehicle was being repaired at the car repair shop. 43

‘Moral’ damage may be also compensated by non-monetary means, such as by retraction, public apology, or a publication. See above General Principles, Part One, Ch. B, III, 1, B, d.

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B. Legal Grounds for Liability a. Legal grounds for liability exist when the cause of the damage, the damage causing event, creates liability for compensation according to the law. The most important legal grounds for liability are the following: aa. Contractual liability The liability due to breach of legal obligations may originate in a juridical act or in the law. It may consist in impossibility of performance due to fault, debtor’s default, or improper performance (Arts. 330 et seq., 335 et seq., 340 et seq., 362 et seq., 380 et seq., 383 et seq. CC). In the case of breach of legal obligations due to fault, the debtor owes henceforth compensation in lieu of the original performance or in addition to it. bb. Delictual liability Liability from delict/tort is created when the prejudice to another is caused illegally and through the injuring party’s fault. In this case the obligation of the injuring party is to compensate the injured (Art. 914 et seq. CC).44 ∗

cc. Precontractual liability (or liability arising from negotiations) Liability arising during negotiations exists when the injuring party through fault of his own causes prejudice to the other party. This type of behavior during negotiations (culpa in contrahendo) makes the injuring party liable to compensate the injured party (Art. 197 et seq. CC).45 dd. Liability arising directly from contractual obligation to compensate Liability arising directly from contractual obligation to compensate exists when the debtor independently assumes the obligation to restitute the damage third parties will incur from a concrete event in the future. In this case the payment of compensation is the content of the contract. This type of liability is exemplified in the insurance contract where the insurance company undertakes to cover the damage the insured will suffer in case of occurrence of the risk against which he is insured. Regarding terminology, see above Translator’s note, p. 110 (Translator’s note). See below Part Three, Ch. B, I, 4. 45 See above General Principles, Part Three, Ch. C, VI, 2, A. ∗

44

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b. In principle, the legal grounds for liability presuppose unlawful act on behalf of the injuring party resulting from fault of his. Unlawful is the act which conflicts with the legal order.46 Also, the wrongful act needs to be the result of the injuring party’s fault.47 The Greek legal system adopts the fault principle meaning that the culprit is liable only when he is at fault (subjective liability). Exceptionally, in certain cases the culprit is liable even when he is not at fault (objective liability).48 C. Causal Relation Liability for compensation exists when there is causal relation between the legal grounds for liability and the damage, that is, when the legal grounds for liability constitute the cause of the damage and the damage occurs as an effect thereof. Whether such causal relation exists in any particular case is a factual matter to be decided by the court. Regarding the causal relation, several theories have been advanced.49 The theory of the adequate cause (causa adequata) is considered the most accurate. According to it, adequate cause exists when the liability causing event is capable − in the normal course of events − of leading to the damage it led.50 Examples: − While driving his car, A hit and injured pedestrian B, an attorney, who was legally crossing the street at the intersection. B was urgently taken to the hospital where he stayed for two weeks. This resulted in medical expenses for B and loss of income due to his inability to work. In this case there is adequate causal relation between the injury and the damage B suffered because, in the general course of events, the injury of a person (which is the liability generating event) does cause increase of expenses and decrease of income. Consequently, A is liable and must compensate B. 46

See below Part Two, Ch. B, II. See below Part Two, Ch. B, III. 48 See below Part Two, Ch. A, III, 1, B. 49 See A. Litzeropoulos, in ERMAK, Arts. 297-300, No 39 et seq.; the same, Elements of the Law of Obligations, 1960, p. 980; Stathopoulos, op. cit., p. 175 et seq.; the same, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 297-298, No 41 et seq.; Filios, op. cit., p. 300 et seq.; Ap. Georgiadis, Law of Obligations, op. cit., p. 139 et seq.; Ast. Georgiadis, Law of Obligations, General Part, Vol. I, 4th ed., 2003, p. 128 et seq.; I. Spyridakis, Manual of Civil Law, General Law of Obligations, 3d ed., 2004, p. 143 et seq. 50 It is argued that this theory is founded on Article 298, 2 of the Greek Civil Code. See Litzeropoulos, in ERMAK, Introduction to Arts. 297-300, No 43a. 47

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− A, an honest and sensitive person, upon hearing that in x Home for the Elderly the patients suffer due to bad management by the Board of Directors, had a stroke. In this case there is no adequate causal relation between the bad management of the Board of Directors and A’s stroke because, in the normal course of events, the information of bad management on the part of the Board of Directors of a Home for the Elderly does not cause a stroke. Consequently, the Home for the Elderly has no liability to compensate A.

3. Computation of Benefits in the Assessment of Damage The reason for paying damages is to restitute the damage which actually occurred. Consequently, in order to properly assess the compensation due, it is necessary to subtract any profit the injured party eventually derived from the damage. Examples: − A burnt the house of B. However, certain building materials were left over. For the assessment of the damages A owes to B, the value of the residual will be taken into account and the resale value of the building materials will be subtracted from the payment for damages due. − A killed two of B’s sheep. For the assessment of the damages A will have to pay to B the amount of money A derived from the sale of the sheep skin and meat will be subtracted.

However, the benefit of the injured party due to chance or extraordinary event is not taken into account in the assessment of the damage. Example: A tore down B’s house. During the excavation, B found in the foundations of the house a box filled with golden coins. B’s benefit is due to a chance event; consequently, it is not taken into account in the computation of the amount A owes to pay to B for damages.

4. Damage Due to Concurrent Fault of the Injured Party In certain cases the injured party is co-responsible for the damage he suffered, i.e. there is concurrent fault and, consequently, the court may either refrain from granting compensation for damages or reduce the amount due (Art. 300 CC). For this to happen the following conditions need to concur: −

there must be liability to compensate

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− −

the injured party must have contributed to the damage or its extent there must exist causal relation

More specifically: A. Liability to Compensate It is necessary for the liability to compensate to exist because only then is there reason for reduction or abstaining from granting the compensation due to concurrent fault on behalf of the injured party. It is irrelevant whether the liability of the injuring party is subjective (based on fault of his own) or objective (liability regardless of fault). B. Contribution of the Injured Party to the Damage or Its Extent It is sufficient to verify that the injured party behaved in a way contrary to what is dictated by the circumstances regarding the safeguarding of his own interests.51 In principle, the contribution of the injured party to the damage is due to fault of his own. However, he may be liable even for actions that are not due to his fault but for which he is liable anyway (e.g. in the case of objective responsibility). Example: B’s dog began barking and chasing A. The latter got angry and killed the dog. B has sustained damage. However, for the assessment of his damage B’s own responsibility as the possessor of an animal will also be taken into consideration (Art. 924 CC).

Actions or omissions which according to the law render the injured party co-responsible are the following: a. Action of the injured party contributing to the occurring of the damage Example: While driving his car, A injured pedestrian B while the latter was crossing the street running, even though the traffic light for pedestrians was red.

51

See Litzeropoulos, in ERMAK, Art. 300 No 15; Michailidis – Nouaros, Law of Obligations, 1959, p. 41; Stathopoulos, op. cit., p. 200 et seq.; Ap. Georgiadis, op. cit., p. 156 et seq.; Ast. Georgiadis, op. cit., Vol. I, p. 163 et seq..

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b. The action of the injured party must have contributed to the extent of the damage Example: A injured B and the latter had to have a cast put on his right leg for twenty days. After twelve days B removed the cast which resulted in the worsening of his condition, now requiring the replacement of the original cast by a new one to stay in place for another twenty days.

c. Omission of the injured party to avert the damage Example: A, although anticipating that the fire which had broken out in the store next door might burn his own premises, was negligent and did not call the Fire Department thinking that, even if his store were to catch fire, he would be compensated for the damage by the insurance company. The fire eventually spread to B’s store and destroyed it.

d. Omission of the injured party to limit the damage Example: A injured B and caused a fracture to his hand. B, who refused to undergo a necessary and risk-free surgical procedure in a timely fashion (believing that his injury would heal with time), caused himself significant disability.

e. Omission of the injured party to draw the obligor’s attention to the risk of unusually great damage which the obligor neither knew nor was required to know. Example: A entrusted B with the safekeeping of a briefcase containing a large sum of money but omitted to make B aware of the briefcase’s content, and consequently warn him to be particularly careful with it so that unusually serious damage might be averted.

C. Causal Relation A causal relation needs to exist between the behavior of the injured party and the damage, i.e. the action of the injured party must, in the normal course of events, contribute to the damage or its extent. When determining the amount of damage the debtor owes to pay to the injured party, the court may freely assess the specific circumstances. The determination of the reparations due will be made in accordance with certain criteria, such as the gravity of the fault of each of the parties (the injuring and the injured).

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5. Types of Compensation There are two types of compensation, monetary and in kind (in natura). Monetary compensation is the one that can be assessed in money. Compensation in kind (in natura) is the one creating a new situation equivalent to that which existed before the damage causing event. According to the Greek Civil Code (Art. 297, 1), monetary compensation is the rule. Example: A who destroyed B’s TV set must pay him for the value of the TV set (monetary compensation) and not buy him a replacement TV set (compensation in natura).

Exceptionally, it is possible for the court, upon assessment of the particular circumstances, to order restoration of the status quo ante, i.e. compensation in natura, as long as this type of compensation does not conflict with the interests of the creditor. For the court to rule in favor of compensation in natura the following is needed: - the filing of a petition by the creditor or the debtor - the existence of special circumstances calling for it Example: A, a plumber, went to B’s house in order to repair the pipes of the central heating system and accidentally he destroyed a heating element. Following the plumber’s petition, the court, instead of ordering the payment of monetary compensation to B for the damages he sustained due to the destruction of his heating element, may allow A (the plumber) to replace the broken unit paying for it out of his own pocket.

CHAPTER B TYPES OF OBLIGATIONS ACCORDING TO THEIR SUBJECT I. GENERAL The usual type of obligation has one creditor and one debtor. But there are obligations with a plurality of parties (creditors or debtors) called multiparty obligations. Examples: − A and B, co-owners of an apartment, donate it to C (more debtors). − A donates his car to B and C (more creditors). − A and B, co-owners of a piece of land, donate it to C and D (more creditors and more debtors).

There are several kinds of multi-party obligations: the divisible obligation, the joint and several obligation, and the indivisible obligation. II. DIVISIBLE OBLIGATION 1. The Concept An obligation is divisible when the performance may be divided in several uniform parts. 2. Distinctions The divisible obligation may be passive or active. A. Passive Divisible Obligation Passive divisible obligation exists when, in the case of many debtors, each debtor is liable only for the part of the performance corresponding to him. If the law or the contract do not stipulate otherwise, each debtor is responsible to furnish an equal share.

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Example: A and B, engineers, rented the apartment of C for office space for 800 euros per month. Assuming that it is not otherwise stipulated in the lease contract regarding their obligations (for example, that A will be liable for 2/3 of the rent and B for 1/3), each is responsible for 400 euros.

B. Active Divisible Obligation Active divisible obligation exists when, in the case of many creditors, each creditor is entitled only to the part of the performance corresponding to him. If the law or the contract do not stipulate otherwise, each creditor is entitled to receive an equal share. Example: A and B, co-owners of a car, sold it to C for 8,000 euros. Each of the creditors has the right − assuming it is not otherwise stipulated in the sale contract (such as, for example, that A is entitled to 2/3 and B to 1/3) − to demand 4,000 euros from C.

III. JOINT AND SEVERAL OBLIGATION 1. The Concept The obligation where there are several debtors or creditors is divisible, unless it is otherwise agreed in the contract or stipulated by law (e.g. Art. 926 CC).1 Consequently, the rule is that the multi-party obligation is divisible, i.e. that it is apportioned among the many creditors or debtors (Art. 480 CC). What may be differently stipulated in the contract or stated in the law is that the obligation is joint and several (obligatio in solidum). Joint and several obligation is the obligation where either each of the many debtors has an obligation against the creditor to effect the whole performance, but the creditor may claim it only once, or each of the many creditors is entitled to demand the whole performance from the debtor, but the debtor is obliged to fulfill the performance only once. 2. Distinctions There are two types of joint and several obligations, passive and active.

1

Article 926 of the Greek Civil Code stipulates that, if an act in which several persons engaged in common has caused prejudice or if for one and the same act more than one person is responsible, all are liable for the whole.

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A. Passive Joint and Several Obligation The joint and several obligation is passive when, in case of plurality of debtors for one and the same performance, each debtor is obliged to furnish it in its entirety, though the creditor may claim it only once (Art. 481 CC). The creditor may demand performance from any debtor he chooses, either in part or in whole, but until the performance is furnished in its entirety, all debtors remain liable (Art. 482 CC). If one of the co-debtors fulfills the obligation, the others are released vis-à-vis the creditor (Art. 483, 1 CC). The co-debtor who fulfilled the obligation has right of recourse against the other co-debtors and is subrogated to the rights of the creditor (Art. 488 CC), i.e. he is entitled to demand from each of the other co-debtors the part of the obligation corresponding to him. If a different apportionment does not follow from the contract, the codebtors are liable in equal shares (487, 1 CC). Finally, it should be noted that, whatever the co-debtor who fulfilled the obligation is unable to collect from another co-debtor shall be borne by all the co-debtors, including himself, in the same proportion (Art. 487, 2 CC). Example: Businessman E bought from brothers A, B, and C 1,500 kilos of oil and it was agreed that either A, or B, or C is obliged to furnish the performance in its entirety, i.e. to give the 1,500 kilos of oil to E but that this should be effected only once. If A furnishes the 1,500 kilos of oil to E, he (A) then has right of recourse against B and C, i.e. he has the right to demand from each one of them 500 kilos of oil. In the event that B does not furnish the 500 kilos he owes, A and C will have to furnish 250 kilos of oil each (i.e. the part of B’s unfulfilled obligation will burden A and C in the same proportion).

B. Active Joint and Several Obligation The joint and several obligation (or joint and several claim) is active when, in the case of plurality of creditors for one and the same obligation, each creditor is entitled to demand it in its entirety but the debtor is responsible to make payment only once (Art. 489 CC). The debtor, at his option, may furnish the performance to any of the creditors (Art. 490 CC).2 2

If, however, one of the creditors has initiated legal proceedings against the debtor, the debtor has the obligation to furnish the performance to him (Art. 490 CC).

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Against the creditor who collected, the other co-creditors have right of recourse, i.e. they have the right to demand their share of the fulfilled obligation. Unless a different arrangement emerges from the relationship, in their internal relations the many creditors are entitled to an equal share (Art. 493 CC). Example: A and B, co-owners in equal shares of a vehicle, sold it to C for 8,000 euros and agreed that either A or B may demand payment of the entire sum from C but that this should be effected only once. C, at his option, may make payment of the entire sum to either A or B. If C pays the full amount to A (8,000 euros), B has right of recourse against A for his (B’s) share, i.e. for 4,000 euros.

IV. INDIVISIBLE OBLIGATION 1. The Concept An obligation is indivisible if its performance cannot be divided in many uniform parts. 2. Distinctions The indivisible obligation may be passive or active. A. Passive Indivisible Obligation The indivisible obligation is passive when there are many debtors. In the case of passive indivisible obligation, are applicable the provisions of Article 494, para. 1 of the Greek Civil Code regarding joint and several obligation, i.e. each of the debtors is liable to implement the entire obligation but the creditor is entitled to demand it only once. Example: A and B, co-owners of a vehicle, sell it to C. Each of the debtors (A and B) is obliged to furnish the vehicle to C but C is entitled to demand the vehicle only once from either A or B.

B. Active Indivisible Obligation The indivisible obligation is active when there are many creditors. In the case of active indivisible obligation (and assuming that it does not follow from the transaction or from the law that the obligation is joint and several), the debtor is obliged to furnish the performance to all the creditors

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jointly and each creditor may demand that performance be effected to all the creditors jointly (Art. 495, 1 CC). Example: A and B bought a painting from C. The latter is obliged to furnish the painting to A and B jointly. Moreover, either A or B may demand from C to fulfill his obligation to both A and B.

PART TWO CIVIL LIABILITY CHAPTER A THE CONCEPT AND DISTINCTIONS OF CIVIL LIABILITY I. GENERAL In the broad sense of the term liability denotes all the unfavorable consequences a person suffers when he offends an equitable good protected by law.1 Depending on whether the consequences are civil, criminal, or disciplinary we have civil liability, criminal liability, and disciplinary liability. Civil liability denotes the obligation (resulting from a number of reasons) to restitute the damage caused to a person. Criminal liability signifies the public penalty (e.g. short or long term imprisonment) imposed to the culprit of a crime for purposes of satisfying the offended legal order. Disciplinary liability points to the disciplinary penalty (reprimand, fine, temporary termination of the employment contract) imposed on the offender of the rules of public service or private business laid down for the purpose of the efficient operation of the latter. At times it is possible for the civil, criminal, and disciplinary liability to concur.2

1 2

See Stathopoulos, op. cit., p. 41. See below Part Three, Ch. B, I, 3.

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II. THE CONCEPT OF CIVIL LIABILITY As was earlier mentioned, civil liability is the responsibility to make reparations for the damage caused to another person. The sum total of the rules regulating this obligation (resulting from different reasons) to restitute the damage caused to a person constitutes the system of civil liability or the general law of compensation.3 III. TYPES OF CIVIL LIABILITY The types of civil liability are: -

Subjective and objective Contractual and extra-contractual

1. Subjective and Objective Liability A. Subjective Liability The liability is subjective when it is based on the injuring party’s fault. In contemporary Greek civil law civil liability is based on the principle of fault, i.e. for a person to be liable for damages, the prejudice caused to another must have come through the obligor’s own fault. The Greek Civil Code establishes the fault principle regarding contractual responsibility (Art. 330 CC), delictual responsibility (Art. 914 CC), and precontractual responsibility, i.e. responsibility arising during the stage of negotiations (Art. 198 CC). B. Objective Liability Civil liability is objective when certain persons are liable for damages regardless of fault of their own. Exceptionally, in certain cases the law accepts the liability of some persons regardless of fault on their part, e.g. liability of the legal person for actions or omissions of its legal representatives (Art. 71 CC),4 liability for the actions of the person one employs (underling) to fulfill a performance 3

See A. Litzeropoulos, in ERMAK, Introduction to Arts. 297-300, No 3; Ap. Georgiadis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introductory comments on Arts. 914-938, No 4. See also above Part One, Ch. A, V, 1. 4 See above General Principles, Part One, Ch. C, III, F.

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(Arts. 334 and 922 CC), liability for the prejudice caused to a third party by the possessor of an animal (Art. 924, 1 CC), liability of the employer in case of work related accident (L. 551/1915).5 2. Contractual and Extra-contractual Liability A. Contractual Liability Contractual liability is the liability arising from the non-performance of a preexisting obligation. The contractual liability is secondary (derivative), i.e. it presupposes an already existing obligational relation between the parties. In those cases the injuring party was already a debtor to the injured party and, following the breach of contract on the part of the former (which may result from delayed furnishing of the thing due − as in debtor’s default − or its intentional destruction − as in impossibility of performance −), he owes damages either in addition to the original performance or damages only. Example: A, who on August 15 owed to furnish a vehicle to B on account of sale, intentionally destroyed it on July 10 of the same year. Consequently, on August 15, through fault of his own, A was faced with impossibility of performance in which case he was liable to compensate B. The relation between A and B existed already from the time they concluded the sale contract, but A’s responsibility to pay damages to B emerged later on, when A was faced with impossibility of performance.

B. Extra-contractual Liability Extra-contractual liability is the liability which stems directly from the law, i.e. delictual liability, or liability generated during the stage of negotiations (precontractual liability). The extra-contractual liability is primary. This means that the obligational relation between the two parties (the obligor and the obligee) is generated now for the first time in the form of liability for compensation, provided that the conditions of the law concur. The most important case of extra-contractual liability is the liability for tort/delict (delictual liability), i.e. the liability stemming from an unlawful act of the liable party which came about through his fault. In delictual liability the obligation to compensate is created now for the first time as a 5

See also above Introduction, Ch. A, III, 4.

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result of the tort/delict (i.e. the unlawful act which came about through the liable party’s fault). Prior to the tort, there was no bond between the parties, the injuring and the injured. Example: A injured B with his car. A is liable to compensate B. The relationship between A and B was created for the first time after the injury.

CHAPTER B CONDITIONS FOR CIVIL LIABILITY I. GENERAL The Greek Civil Code does not regulate the matter of civil liability in one single chapter. However, the concept of civil liability is a uniform one, regardless of the grounds on which it is based – breach of previously existing contract (contractual liability), tort/delict (delictual liability), stage of negotiations (precontractual liability). For civil liability to be created the following conditions need to concur: -

unlawful behavior of the injuring party fault of the injuring party1 II. UNLAWFUL BEHAVIOR

1. The Concept Unlawful behavior of the injuring party, which may consist in action or omission, is the behavior disapproved by the legal order. More specifically: In the case of contractual liability, the unlawful behavior consists in the breach of contract; in the case of liability from tort/delict, in the violation of the law, e.g. injuring a person; and in the case of liability arising during the stage of negotiations, in the violation of the dictates of good faith (bona fides).

1

There is also liability without fault (objective liability). See above Ch. A, III, 1, B.

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2. Reasons for Waiving the Unlawful Character of the Act The unlawful character of the act may be waived if certain conditions concur. The most important reasons for waiving the unlawful character of the behavior are the following: A. Self-redress Self-redress is the self-sustained act of the obligee aiming at the satisfaction of his claim when the assistance of the authorities cannot arrive in time and, due to the delay, said satisfaction may be frustrated or become considerably more difficult (Art. 282 CC).2 B. Self-defense Self-defense is the act of defense permissible to one in order to avert present and unlawful attack on himself or a third party (Art. 284 CC).3 C. State of Necessity State of necessity exists in the case of destruction of a thing belonging to another when this is necessary in order to avert imminent danger threatening the person who caused the destruction or a third party with a disproportionately greater damage (Art. 285 CC).4 D. Consent of the Injured Party The consent of the injured party does not always waive the unlawful character of the act of a third party. In case of prejudice to property assets, the consent of the injured party waives the unlawful character of the act of another only when it refers to a property asset in which the social order as a whole is not interested.5 Examples: − B, with A’s consent, destroyed the vehicle of the former. A’s consent waives the unlawful character of B’s act. − B, with A’s consent, destroyed a unique piece of art or a building scheduled for preservation owned by A. The consent of A does not waive the unlawful character 2

See above General Principles, Part Two, Ch. E, II, 1. See above General Principles Part Two, Ch. E, II, 2. 4 See above General Principles, Part Two, Ch. E, II, 3. 5 See P. Kornilakis, Abridged Special Law of Obligations, 2000, p. 360; Ast. Georgiadis, op. cit., Vol. I, p. 77. 3

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of B’s act because the social order as a whole is interested in the work of art or in the building scheduled for preservation.

In case of prejudice to the personality, the consent of the injured party waives the unlawful character of the act only when the act is not contrary to ‘good morals’.6 Examples: − A, who suffered from terminal illness, asked B to put him to death. B’s act (killing a person) is contrary to ‘good morals’ and A’s consent cannot waive its unlawful character. − Patient A gave his consent to the surgeon to surgically remove one of his lungs so that his life might be saved. In this case the patient’s consent does waive the unlawful character of the act of removing an organ of his body.

III. FAULT 1. The Concept Fault is the psychological predisposition of the culprit towards the unlawful result disapproved by the legal order. The concept of fault includes two elements: the psychological, which consists in the assessment of whether there exists a causal relation between the will of the culprit and the effect of his act, and the normative, which consists in the assessment of whether the culprit possessed the mental health and maturity to realize the unlawful character of his act, i.e. whether he could be considered mentally competent.7 Hence, for an unlawful act to be considered as originating in fault, on the one hand there must be a psychological bond between it and the culprit (intent or negligence) and on the other hand it must be possible for the unlawful act to be imputed to the culprit personally. We will subsequently examine the capacity for delictual liability and the degrees of fault. 2. Capacity for Delictual Liability Capacity for delictual liability exists when the culprit possesses the appropriate mental health and maturity to realize the unlawful character of his act.

6

See Kornilakis, op. cit., p. 360; Ast. Georgiadis, op. cit., Vol. I, p. 77 et seq. See G. Michailidis – Nouaros, in ERMAK, Art. 330, No 2; G. Balis, General Principles, 8th ed., 1961, para. 175, p. 457 et seq.; Ast. Georgiadis, op. cit., Vol. I, p. 79. 7

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In principle, all persons have the capacity to be generally responsible. The law defines negatively the capacity to be held liable for delict and only states who is incapable of being held liable.8 Incapable of delictual liability are the following: A. The minor who has not completed the tenth year of age (Art. 916 CC). B. The person who, at the time the damage was inflicted, was not conscious of his acts or was in a state of psychological or mental disturbance decisively limiting the functioning of his reason and will (Art. 915, 1 CC). 9 C. The minor who has completed the tenth but not the fourteenth year of age, if it is proved that he acted without discretion (Art. 917, 1 CC).10 D. The deaf-mute when it is proved that he acted without discretion (Art. 917, 2 CC). 3. Degrees of Fault There are two degrees of fault: intention (willful conduct, dolus) and negligence (culpa).11 A. Intention In Greece the definition of intention (willful conduct, dolus) is not given in the Civil but in the Criminal Code. According to Article 27 of the Greek Criminal Code, intention exists when a person wills the results generated by an act deemed punishable by law, or knows that his own act may produce such results, and accepts it. 8

See above General Principles, Part Three, Ch. C, II, 2. The person who at the time the damage was inflicted had brought himself to such a condition by the use of alcohol or other similar substances (e.g. drugs), is liable for the damage, unless he was reduced to this condition without fault on his part (Art. 915, 2 CC). 10 “Without discretion” means that the person was not able to evaluate the unlawful character of his act. See above General Principles, Part Three, Ch. C, II, 2, footn. 4. 11 Beyond intention and negligence are the chance events (casus) which are distinguished in ‘ordinary’ chance events (chance events in the strict sense) and events of force majeur (vis major). Ordinary chance events are those which do not usually generate liability for the injuring party. Only exceptionally can the injuring party’s liability extend to chance events as well. Events of vis major are the events which are either impossible to be averted by human powers or whose prevention appears considerably harder than that of ordinary chance events (chance events in the strict sense). For more, see Stathopoulos, op. cit., p. 120 et seq.; Ap. Georgiadis, op. cit., p. 247; Ast. Georgiadis, op. cit., Vol. I, p. 92 et seq. 9

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From the above definition it follows that there are two kinds of intentions: immediate and eventual. a. Immediate intention The intention is immediate when the culprit sought the unlawful result. Examples: − A, who had an old enmity with B, set his (A’s) house on fire in order to destroy it. − A broke B’s TV set in order to get back at him.

b. Eventual intention Eventual intention exists when the culprit did not seek the unlawful result but anticipated it as possible and accepted it. Example: A, wanting to burn down B’s house, set it on fire even though he anticipated the possibility that B’s bedridden mother might be in it. As regards the destruction of the house, A had immediate intention but as regards the death of B’s mother, should such event occur, he had eventual intention.

B. Negligence Negligence exists when the care required in the carrying out of business is missing. This definition of negligence is given in Article 330, para. 2 of the Greek Civil Code. There are two basic kinds of negligence, ‘gross’ and ‘slight’. a. ‘Gross’ negligence ‘Gross’ negligence (culpa lata) exists when the behavior of the culprit falls short by much of the normal behavior of the average diligent person. Example: A, who had undertaken to send to B’s house a dinnerware set of expensive porcelain the latter had purchased from his store, took no precaution in packaging it properly and as a result several plates got broken during transportation.

b. ‘Slight’ negligence ‘Slight’ negligence (culpa levis) exists when the culprit does not exhibit the behavior the average diligent man exhibits in transactions. ∗

Not infrequently ‘slight’ negligence is simply referred to as ‘negligence’ in many English speaking countries (Translator’s note). ∗

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Example: A sold B a car. While the car had not yet been delivered to its new owner, A left one of the windows fairly open which resulted in the theft of the car by a burglar who easily broke into it from the open window. If A had been careful and closed all the windows, the way an average diligent man would, the car would not have been stolen.

Sometimes it is difficult to distinguish between ‘gross’ and ‘slight’ negligence. It is up to the court to assess in concreto when the deviation from the behavior of the average diligent person in transactions is so significant as to constitute ‘gross’ negligence.

CHAPTER C LIABILITY FOR THE ACTS OF THIRD PARTIES (LIABILITY FOR THE ACTS OF AN UNDERLING) I. GENERAL Every person is liable for his own acts, as a rule the ones due to his fault (subjective liability) and exceptionally those for which he is not at fault (objective liability). The law stipulates in which cases one is liable for the acts of a third party. The most important case of liability for the acts of a third party is when one is liable for the acts of the underlings he uses, provided he has chosen to use an underling out of his own free will. This is the so-called liability for the acts of an underling. Liability for the acts of an underling exists when a person (the principal) out of his own free will uses another person (the underling) to carry out his business. The liability for the acts of an underling is stipulated by law because the person who uses such a ‘go-between’ on the one hand draws benefits from his services and on the other hand is clearly the financially stronger party. In the Greek Civil Code the articles dealing with this type of liability are Articles 334 and 922. Article 334 is the article covering the damages caused by the underling during the fulfillment of the performance. In order for article 334 to be applicable, an obligational relation between the principal and the party who suffered the damage needs to have previously existed. The principal who is liable for the third party’s fault is the debtor and the party who sustained the damage the creditor.

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Example: Plumber A sent his assistant B to the house of C to change a heating element. In the process of replacement, B pierced a pipe in the central heating system of the apartment complex. According to Article 334 of the Greek Civil Code, A is liable for the damage B caused to C because between A and C there already existed an obligational relation, an agreement for the specific repair.

Article 922 covers the case of damages caused by an unlawful act of the underling whose services the principal used in carrying out his performance. Example: B, assistant to plumber A, on his way to C’s house for the above mentioned repair, hit and injured with his motorcycle pedestrian K. According to the Greek Civil Code, A is responsible for the injury of K because the damage was caused by underling B while carrying out the principal’s (A’s) business.

II. CONDITIONS FOR THE ESTABLISHMENT OF LIABILITY FOR THE ACTS OF AN UNDERLING For the principal to be liable for the actions of his underling the following conditions need to concur: 1. Use of an intermediary person by the principal who has made this choice out of his own free will. The relationship between principal and underling is usually a contractual one (e.g. employment contract, contract for work, mandate), though it is not impossible to be merely a relationship of friendship. 2. Damage caused by the intermediary during the fulfillment of the performance or while he was carrying out the principal’s business, assuming of course that a causal relation exists between the activity of the intermediary that caused the damage and the duties assigned to him by the principal. It is disputed whether causality should be considered lifted merely on account of the fact that the damage occurred on the occasion – or apropos – of the fulfillment of the performance or the carrying out of the principal’s business. 1 2 1

See Litzeropoulos, Elements of the Law of Obligations, op. cit., p. 82; G. Michailidis – Nouaros, in ERMAK, Art. 334. No 36 et seq.; Stathopoulos, op. cit., pp. 144 and 147; the same, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 334, No 27 and Art. 922, No 33; Ast. Georgiadis, op. cit., Vol. I, pp. 106 et seq. and 111. But see also the following authors who claim that there is no responsibility for the principal from the underling’s act if the damage was caused by the underling on the occasion or apropos of the fulfillment of the performance or the carrying out of another service: Balis, Law of

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Examples: − In the above mentioned example, as was stated earlier, according to Article 334 of the Greek Civil Code, the plumber is liable for the damage his assistant caused during the replacement of the heating element. But, if during the repair B fights with C and injures him, A is not responsible. − In the same example, as was mentioned earlier, according to Article 922 of the Greek Civil Code, A is responsible for the injury B caused to K. But if, while B is on his motorcycle on his way to C’s house for the repair, he meets and fights with a friend whom he injures out of revenge, A is not responsible.

3. The damage must be due to the underling’s fault.3 Fault of the principal is not required since his liability is objective. III. CONSEQUENCES OF THE LIABILITY FOR THE ACTS OF AN UNDERLING As long as the above mentioned conditions concur, the principal is liable for the fault of his underling as if it were his own fault. More specifically: -

-

If during the fulfillment of the performance the underling caused prejudice to the creditor, according to the Article 334 of the Greek Civil Code, the obligor (the principal) has to compensate the creditor. If while carrying out the principal’s business, the underling caused prejudice to a third party through an unlawful act of his, the

Obligations, op. cit., para. 46, p. 177; P. Zepos, Law of Obligations, Vol. I, 2nd ed., 1955, p. 520; the same, Law of Obligations, Vol. II, 1953, p. 774; Filios, Law of Obligations, General Part, op. cit., p. 264; the same, Manual of the Law of Obligations, Special Part, Vol. II/2, 4th ed., 1998, p. 89 et seq. 2 The limits of the principal’s liability for the underling’s fault depend on whether the rules of the causal relation are applied broadly or narrowly (see Michailidis – Nouaros, in ERMAK, Art. 334, No 40). 3 It is a matter of dispute whether in the case of Article 922 of the Greek Civil Code fault of the underling is required. Are in favor: Balis, General Principles, op. cit., para. 173, p. 453; Zepos, Law of Obligations, Vol. II, op. cit., p. 774; Stathopoulos, op. cit., p. 142; the same, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 922, No 23; Kornilakis, op. cit., p. 380; Filios, Manual of the Law of Obligations, Special Part, op. cit., Vol. II/2, p. 90 et seq; Ap. Georgiadis, op. cit, p. 628; Ast Georgiadis, op. cit.,Vol. I, p. 110 et seq. Is against: Michailidis – Nouaros for whom the unlawful character of the act is sufficient (in ERMAK, Art 334, No 5).

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principal has to compensate the third party according to the Article 922 of the Greek Civil Code. However, alongside the principal’s own liability, it is possible for the underling to be liable as well, naturally only if his act constitutes an unlawful act, since the underling has no preexisting contractual bond with the creditor. Hence, it is possible for the obligee to have two claims: one against the principal and one against the underling.4 But he will be compensated only once, i.e. not both from the principal and from the underling. In view of the fact that the principal and the underling are connected with a bond, usually contractual (e.g. employment contract, mandate), the principal who compensated the injured party (either creditor or third party) may in turn exercise the right of recourse against the underling demanding from him compensation for breach of contract.5 If, however, the compensation to the injured party is paid by the underling, the latter has no right of recourse against the principal.

4

Principal and underling are liable jointly and severally (in solidum) according to the Articles 481 and 926 of the Greek Civil Code. See above Part One, Ch. B, III. 5 If the principal and the underling are bound by an employment contract, Article 652 of the Greek Civil Code is applicable; if they are bound by a contract of mandate, Article 714 of the Greek Civil Code is applicable.

PART THREE GENERATION OF THE OBLIGATION Obligations result from juridical acts, torts/delicts, and the law. However, for methodological purposes, we distinguish them in contractual and extra-contractual as far as their source of origin is concerned. Contractual obligations are those stemming from juridical acts, whereas extra-contractual those stemming from tort, unjust enrichment, management of another’s affairs (negotiorum gestio), etc. CHAPTER A CONTRACTUAL OBLIGATIONS I. GENERAL Contractual obligations result from legal transactions (unilateral juridical acts or contracts). The rule is that for an obligation to be generated there needs to be a contract. This follows from Article 361 of the Greek Civil Code according to which to create or amend an obligation a contract is required, unless the law has a different provision. The law does have a different provision, i.e. that a contract is not required for the generation of an obligation, in certain rare cases, such as, for example, in the establishment of a foundation1 or the drawing up of a will. Concerning the amendment or termination of an obligation there are also some rare cases where a unilateral juridical act suffices.2

1

See above General Principles, Part One, Ch. C, V, 1. For the amendment of an obligation a unilateral juridical act suffices in cases such as, for example, the declaration of option in an alternative obligation. For the termination of an 2

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II. THE PRINCIPLE OF THE FREEDOM OF CONTRACTS Article 361 of the Greek Civil Code establishes the freedom of contracts which reflects the principle of the autonomy of the will. According to the principle of the freedom of contracts, every person is free not only to decide if and with whom he will conclude a contract but also to determine the content of the contract. The principle of the freedom of contracts is subject to the following limitations: 1. With regard to the freedom of concluding a contract, sometimes one is compelled to conclude a contract as, for example, in the case of forced contracts.3 Examples: Such are the forced contracts concluded between every applicant and the public utility companies of water, electricity, telephone, etc.

2. With regard to the content of the contract limitations, they are imposed by the rules of mandatory law (Arts. 3 and 174 CC), ‘good morals’ (Art. 178-179 CC), and the general terms of transactions.4 Examples: Such are the contracts of adhesion (or accession)5 a person concludes with various companies having a monopoly, e.g. with the electric company or the telephone company.

III. TYPES OF CONTRACTS The most important distinctions of contracts are the following:

obligation a unilateral juridical act suffices in cases such as, for example, the termination of an employment contract. 3 See above Introduction, Ch. A, III, 1; see also below Part Three, Ch. A, III, 5. 4 The general terms of transactions are determined unilaterally by one of the contracting parties, the strongest, which is companies having a monopoly such as the electric company, the telephone company, or the water utilities company. Regarding the general terms of transactions, see N. Deloukas, The General Terms of Transactions, 1952; M. Karassis, General Terms of Transactions, 1992; G. Mentis, General Terms of Transactions in Consumer and Commercial Contracts, 2000. See also Art. 2, L. 2251/1994, as was later on modified, regarding the protection of the consumer. Moreover, see M. Stathopoulos – A. Chiotellis – M. Avgoustianakis, European Community Civil Law, I, 1995, p. 79 et seq.; K. Delouka – Igglesi, Greek and European Community Law of the Consumer, 1998, p. 62 et seq.; I. Karakostas, Consumer Protection – L. 2251/1994, p. 61 et seq. 5 See below Part Three, Ch. A, III, 5.

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1. Formal and Informal6 A. The Formal Contract A contract is formal when for its conclusion it is required that certain formalities be observed, e.g. it is required for the contract to be in writing. The Greek Civil Code establishes the principle of informality of contracts (Art. 158 CC). Only exceptionally do contracts require the observance of form. For a contract requiring form to be concluded in some cases a written document is sufficient, e.g. for the contract of the guarantee,7 whereas in other cases a notarial deed is needed, e.g. for the transfer of ownership on an immovable. B. The Informal Contract A contract is informal when for its conclusion no form is required, e.g. employment contract, lease of a thing contract. 2. Reciprocal and Unilaterally Obliging Contracts8 A. Reciprocal Contract

∗

A contract is reciprocal when it generates rights and duties for both contracting parties, e.g. sale, or lease of a thing. B. Unilaterally Obliging Contract

∗∗

A contract is unilaterally obliging (or unilaterally charging) when it creates rights for the one party and obligations for the other, e.g. donation. 6

See above General Principles, Part Three, Ch. B, IV. See below Part Eight, Ch. B, XII. 8 See above General Principles, Part Three, Ch. B, I, 2. In translating the Greek word ‘amfoterovaris’ (αµφοτεροβαρής) into English, the term ‘bilateral’ is also occasionally used to define ‘reciprocal.’ This may be a less precise rendition as the term is traditionally reserved for international treaties. To be noted, however, that the Roman law terminology ‘negotia bilateralia’ would favor this transaltion (Translator’s note). For such one-sided contracts, the term ‘unilateral’ is at times used instead of ‘unilaterally obliging’. Still, it may be more accurate to refer to them as ‘unilaterally obliging’. After all they too have two sides, two parties, but the contractual obligation burdens only one of them. In this regard see also the remarks of M. Stathopoulos, Contract Law in Hellas, 1995, p. 42 (in English); but consider the Latin term ‘negotia unilateralia’ as well (Translator’s note). 7

∗

∗∗

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3. Gratuitous and Onerous Contracts9 A. Gratuitous Contracts A contract is characterized as gratuitous when the performance on the part of one party is not linked to quid pro quo considerations, such as, for example, donation, mandate, etc. B. Onerous Contracts Onerous contract is the contract where the performance on behalf of one party is counterweighed by a performance on behalf of the other, e.g. sale, lease of a thing. 4. Consensual and Delivery Contracts A. Consensual Contracts A contract is consensual (solo consensu) when for its conclusion all that is needed is the consensus of the parties, e.g. sale, employment contract, etc. In the event that a contract calls for material delivery, such delivery constitutes the fulfillment of the obligation due by the debtor. B. Delivery Contracts A contract is called delivery contract when for the generation of the obligation it is necessary for the thing due to be materially delivered to the other party, e.g. loan,10 loan for use,11 deposit.12 5. Forced Contracts and Contracts of Adhesion (or Accession) A. Forced Contracts Forced contract is the contract where the one contracting party is compelled to conclude the contract if the other party applies for it, i.e. the former does not have the possibility to refuse the conclusion of the contract.

9

See above General Principles, Part Three, Ch. B, II. See below Part Eight, Ch. B, IX. 11 See below Part Eight, Ch. B, X. 12 See below Part Eight, Ch. B, XI. 10

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Example: Such are the contracts that the companies of utilities conclude with anyone applying to them (the electrical, telephone, and water utilities companies which provide services to the public).

A contract also becomes ‘forced’ in case the duration of an otherwise non-forced contract is compulsorily extended, e.g. when the leases on immovables are compulsorily extended by law. B. Adhesion (or Accession) Contracts Contract of adhesion (or accession) is the contract where one of the parties, although free to conclude or not to conclude a contract, when deciding to conclude it, he does not have the right to discuss its terms with the other contracting party. The content of a contract of adhesion is determined by one of the contracting parties, the stronger (usually an organization, a public utilities company, a bank, or generally any business having a monopoly). For this purpose the contracts customarily used are printed, standardized contracts. Example: The contracts with the telephone, electric, or water utilities companies are of this type.

In the contract of adhesion the other contracting party has the right to accept or not accept the proposed contract, i.e. to adhere or not adhere to it, but he does not have the flexibility to negotiate its terms.13 In reality, of course, the other contracting party is always compelled to adhere, otherwise he will be unable to enjoy the services of the various companies having monopoly, i.e. he will not have telephone services, electricity, water, etc. One and the same contract may be at once forced and adhesion (or accession) contract, i.e. forced contract for the one contracting party, the organization or the public utilities company, and contract of adhesion (or accession) for the other contracting party, e.g. the customer. 6. Mixed (Compound) Contracts A contract is mixed (compound) when it contains elements of more than one type of nominate contracts. 13

They are the so-called ‘general terms of transactions’ dictated by the social and economic development (see above footn. No 4). The standardization of the terms of transactions greatly facilitates transactions.

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Examples: − A rents his apartment to B and B assumes the obligation to give private lessons of English to A (it is a mixed contract because it contains elements of two types of contracts: lease contract and employment contract). − A leases his excavation equipment to B with the additional agreement that the person who will be using it is A (this too is a mixed contract because it contains elements of two types of contracts: lease of a thing contract and employment contract). Several theories have been advanced regarding mixed contracts.14

7. Contracts in Favor of or Burdening a Third Party A. Contracts in Favor (or for the Benefit) of a Third Party a. The concept of the contract in favor of a third party Contract in favor of another party is the contract through which the contracting parties agree that a certain result will occur in favor of a third party who is not a party to the contract (Arts. 410 et seq. CC). In the contract in favor of a third party there are the following persons: the party undertaking to fulfill the performance vis-à-vis a third party who is not a party to the transaction (promisor), the recipient of that promise (promisee), and the third party vis-à-vis whom it was agreed that the performance will be fulfilled. Examples: − A takes a life insurance with insurance company ‘B’ in favor of his son T. This means that, in the case of A’s death, the insurance company has the obligation to pay the insurance proceeds to insured T, A’s son. In this example, the insurance company ‘B’ is the promisor, A is the promisee, and T is the third party who will benefit from the contract. − A agrees with professor K that the latter will give English lessons to C who is A’s daughter. In this example K is the promisor, A is the promisee, and C is the third party who will benefit from the contract.

b. Distinctions of the contracts in favor of a third party The contracts in favor of a third party are distinguished in genuine and non-genuine. The contract in favor of a third party is genuine when the third party acquires a direct and autonomous right to claim performance from the promisor (Art. 411 CC).

14

See G. Shinas, Mixed Contracts, 1962; Stathopoulos, op. cit., p. 269 et seq.; Ap. Georgiadis, op. cit., p. 59 et seq.; Ast. Georgiadis, op. cit., Vol. I, p. 267 et seq.

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The contract in favor of the third party is non-genuine when only the promisee, not the third party, has the right to demand fulfillment of the performance (Art. 410 CC). c. Relations between the parties The contract in favor of a third party creates the following relations among the parties: aa. Relation between the promisor and the promisee The relation between the promisor and the promisee, the so-called ‘cover relation,’ may be any contractual relation, e.g. insurance contract, employment contract. bb. Relation between the promisor and the third party The relation between the promisor and the third party, the so-called ‘performance relation,’ is non contractual. The promisor merely assumes the obligation vis-à-vis the promisee to furnish the performance due to a third party. cc. Relation between the promisee and the third party The relation between the promisee and the third party, the so-called ‘inner’ or ‘value relation,’ constitutes the cause for which the third party is entitled to collect from the promisor. This relation may be donation, loan pay off, loan contract, etc. Example: A deposits a sum of money with Bank ‘T’ in favor of B. The reason for this deposit may be that A owes this amount of money to B or that A loans this sum of money to B, or that he wishes to give it to him as a gift.

B. Contracts Burdening a Third Party Contracts burdening a third party are the contracts by which the one contracting party promises to the other that a third party, who is not a party to the contract, will furnish a performance (Art. 415 CC). Example: A agrees with B that C will pay him (B) an amount of money.

Contracts burdening a third party are not valid, i.e. they are not binding for the third party. Such contracts binding a third party would be contrary to the principles of freedom and equality because no one may be burdened

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with obligations from contracts concluded by others nor may one become liable without his consent. However, a contract burdening a third party is valid between the contracting parties in one of the following senses: -

The promisor will make attempts to persuade the third party to proceed with fulfillment of the performance, without however being liable if he does not succeed in this. The promisor assumes the responsibility to compensate the promisee if the third party does not fulfill the performance.

According to an interpretive rule laid down by law, the person who promised that a third party will fulfill a certain performance, unless a different conclusion may be drawn from the contract, will be liable for damages if the third party refuses to fulfill the performance (Art. 415 CC). 8. Regulated (or Nominate) and Non-regulated (or Innominate) Contracts A. Regulated (or Nominate) Contracts Regulated or nominate contracts are the contracts which are regulated either by the Greek Civil Code − in the Special Part of the Law of Obligations (e.g. donation, sale, lease of a thing, employment contract, loan15) − or by special statutes, such as, for example, the leasing contract, the time-sharing contract, etc.16 B. Non-Regulated (or Innominate) Contracts17 Non-regulated or innominate contracts are the contracts which are not specifically regulated in the Civil Code but are the product of transaction practices. In the case of such contracts are applicable by analogy the provisions on similar regulated contracts. If there are no similar regulated contracts, one has recourse to the rules applicable to all contracts. Examples: − A concludes a contract of publishing books with publisher B. − A and B who deal with similar products conclude a contract by which they mutually undertake the obligation not to open similar types of stores in the same area. 15

See below Part Eight, Ch. B. See below Part Eight, Ch. C. 17 See below Part Eight, Ch. D. 16

CHAPTER B EXTRA-CONTRACTUAL OBLIGATIONS Extra-contractual obligations are the obligations which are not generated by juridical acts but stem directly from the law. That is, these obligations are created when the conditions of the law concur. The most important sources of extra-contractual obligations are: unlawful acts, unjust enrichment, and management of another’s affairs (negotiorum gestio). I. OBLIGATIONS FROM UNLAWFUL ACTS 1. General Obligations from unlawful acts are the obligations for damages a person is liable for when he caused prejudice to another through an unlawful and due to fault act of his. Regarding the concept of the ‘unlawful act’ there is some confusion. The foundational rule is that of Article 914 of the Greek Civil Code stating that whoever causes prejudice to another unlawfully and through fault of his own, shall be liable for compensation. However, this definition, which appears in the Greek Civil Code under the subtitle ‘the concept,’ is placed in the chapter entitled “Unlawful Acts”. But according to the prevailing view, Article 914 gives the definition of civil offense (tort/delict) and not of unlawful act.1

1

See Litzeropoulos, op. cit., p. 334 ; Michailidis – Nouaros, op. cit., p. 231; Stathopoulos, op. cit., p. 295 et seq. ; Ap. Georgiadis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introd. to Arts. 914-938, No 1. However, it has also been argued that the terms ‘unlawful act’ and ‘tort/delict’ are identical. See Filios, Manual of the Law of Obligations, Special Part, II/2, op. cit., p. 3 et seq.; Ast. Georgiadis, op. cit., Vol. I, p. 341 et seq.

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Unlawful act is every act contrary to the law, whereas tort/delict is the act which is unlawful and due to fault; it results in prejudice to the equitable goods of a person and generates an obligation for compensation. Every tort is also an unlawful act, but every unlawful act is not necessarily a tort. Consequently, it is more accurate to talk about obligations stemming from tort/delict and not from unlawful acts. 2. Types of Offenses in General Generally speaking there are three types of offenses: civil, criminal, and disciplinary. Civil offense (tort/delict), as was already mentioned, is the unlawful and due to fault act of a person causing prejudice to the equitable goods of another and generating the obligation to compensate. Criminal offense is the unlawful and due to fault act defined as such by law and punished by public sentence (e.g. short or long term imprisonment). While in the civil offense there is an obligation for the injuring party to pay damages, in the criminal offense the culprit is punished with a public sentence.2 Disciplinary offense is the violation of the rules governing a public service or a private enterprise by the person subject to them. The disciplinary offense is punishable by disciplinary sanctions, such as reprimand, fine, or temporary termination of the employment contract. 3. Civil, Criminal, and Disciplinary Offense: Relationship An act may be all three at once: civil, criminal, and disciplinary offense. Example: A, an employee of the company E, injured his co-worker B at work. In this case A has to pay damages to B (civil liability), is subject to criminal sentencing (criminal liability), and is also subject to disciplinary sanctions because with his action he disturbed the order and safety of the company (disciplinary liability). That is, the injury of B is at the same time a civil, criminal, and disciplinary offense.

There are cases where an offense is at the same time both a civil and a criminal offense. 2

The goals of civil and criminal liability are different. Civil liability aims at satisfying the private interest, whereas criminal liability serves the public interest. See above Part Two, Ch. A, I.

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Example: A stole B’s car. On the one hand A owes to compensate B for the damage he caused him and on the other hand he is subject to punishment according to the Criminal Code.

Other times an offense may only be criminal, as it happens with the attempt to injure someone. In this case, although there is criminal liability,3 there is no civil liability because no prejudice was caused to the other. Or there may be civil offense which, however, does not entail criminal liability as, for example, in the case of damage to another’s property due to negligence. Here the culprit will have to pay for the damage he caused but the Criminal Code does not punish the damage to another’s property which is due to negligence.4 Finally, in yet other cases the offense may only be disciplinary, e.g. smoking at work in an area where it is strictly prohibited. 4. Delictual Liability A. General Delictual liability5 is primary, i.e. it creates an obligational relation for the first time. The obligation created is for damages to the injured party, if the conditions required for delictual liability concur. In the obligation born from delictual liability the injuring party is the debtor and the injured party the creditor. The object of the obligation is the duty of the injuring party to indemnify the injured. B. Conditions Required for Delictual Liability For delictual liability to be generated the following conditions are necessary: -

3

Unlawful behavior Fault Damage Causal relation

See Arts. 42 et seq. CrC. The Criminal Code only punishes the damage to another’s property which is done intentionally (Art. 381 CrC). 5 Delictual liability is part of the extra-contractual liability. For its difference from contractual liability, see above Part Two, Ch. A, III, 2, B. 4

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More specifically: a. Unlawful behavior Unlawful behavior is the behavior which is disapproved by the law and the social order.6 b. Fault Fault is the psychological disposition of the culprit vis-à-vis the unlawful result which is disapproved by the law and the social order.7 c. Damage Damage is the prejudice a person suffered in his equitable goods, material or intangible.8 d. Causal relation A causal relation between the legal grounds for liability and the damage is needed.9 In the case of delict, what constitutes grounds for liability is the unlawful and due to fault act of a person having the capacity for delictual liability. C. Results of the Delictual Act The result of a delictual act is that the injuring party has the obligation to pay for the damages caused to the injured party by his act.10 Material damage is always restored.11 At times, however, non material damage (‘moral damage’) is also restored when provided by law.12 Monetary compensation for ‘moral damage’13 is awarded to the person whose non material assets were offended, such as physical integrity, health, honor, or freedom.14 6

See above Part Two, Ch. B, II. See above Part Two, Ch. B, III. 8 See above Part One, Ch. A, V, 2, A. 9 See above Part One, Ch. A, V, 2, C. 10 Regarding the type of compensation, see above Part One, Ch. A, V, 5. 11 See above Part One, Ch. A, V, 2, A, b. 12 See above Part One, Ch. A, V, 2, A, a. 13 The monetary compensation for pain and suffering is independent. It is sought regardless of the compensation for property damage. 14 For more see Ap. Georgiadis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 932; Kornilakis, op. cit., p. 431 et seq.; Filios, op. cit., Vol. II/2, p. 123 et seq. 7

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It is specifically provided by law that, in the case of a person’s death, this type of monetary compensation may be awarded to the family of the victim on account of their pain and suffering.15 II. OBLIGATIONS FROM UNJUST ENRICHMENT 1. General Unjust enrichment, i.e. enrichment which is not justified, is a source of obligations. The obligations due to unjust enrichment are obligations generated directly by the law, the same as the obligations from delictual act. Unjust enrichment exists when a person has become richer from the assets of another or to the detriment of another and there are no legal grounds for it (Art. 904, 1, 1 CC).16 2. Conditions for Unjust Enrichment For an obligation from unjust enrichment to arise, the following need to concur: -

15

The enrichment of a person The enrichment must come about from the property or to the detriment of the creditor There must be causal relation between the enrichment of the one and the impoverishment of the other The enrichment must be unjustifiable, i.e. it must have come about without just or lawful cause

In line with contemporary tendencies, the concept of the family has been broadened to include all the persons connected to the deceased through family and love bonds. It is left to the court to determine whether such bonds exist. See I. Spyridakis, “Comment on the Athens Court of Appeals 618/1976,” in NoB 24 (1976), p. 725; Ap. Georgiadis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 932, No 17; P. Agallopoulou, “The Legal Consequences of Cohabitation,” in NoB 37 (1989), p. 870. 16 Every enrichment at the expense of another, is not necessarily unjustified. For example, the profit of the businessman is not unjustified, provided that it does not exceed the limits for resale profit set by law.

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More specifically: A. Enrichment of a Person Enrichment of a person means the improvement of his financial situation. This may result either from an increase of his assets (e.g. the acquisition of the ownership of a thing) or from the avoidance of reduction of his property (e.g. saving the expenses he would have otherwise incurred, if he did not have the free use of the other person’s thing). B. Enrichment from the Property or to the Detriment of the Other a. Enrichment that came about from another person’s property means that property assets were channeled from one person to the other, i.e. that while one person’s property was increasing, the other’s was decreasing. Example: A transfers the ownership of his land to B.

b. Enrichment that came about to the detriment of another means that, whereas there is increase in the assets of one person, the other loses the opportunity to increase his own. Example: A uses an immovable of B’s as his workshop without paying rent. In this case A’s assets increase because his earnings are not reduced by rent payments for the workshop, whereas B’s assets decrease by the amount of rent he would have otherwise received if he were renting out his property.

C. Causal Relation between Enrichment and Impoverishment There needs to be a causal relation between the enrichment of the one and the decrease of the assets of the other (direct decrease or lack of increase). Examples: − A paid 1,500 euros to B. In this case there is causal relation between the enrichment of the one and the impoverishment of the other. − A, who built a luxury hotel in an area and landscaped the surroundings, caused the increase in value of the nearby properties. In this case, however, there is no causal relation between the enrichment of the neighbors and the expenses A incurred by building his hotel and landscaping the surroundings.

D. Lack of Legal Grounds for the Enrichment In order for a claim of unjust enrichment to arise, the enrichment must be unjustifiable, i.e. be without a lawful or just cause.

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In the Greek Civil Code (Art. 904, 1, 2) the following cases of unjust enrichment are mentioned indicatively: a. Payment that was not due To make a payment that was not due is to make a payment for nonexisting debt. Example: A pays 1,500 euros to B thinking that he owes this money to him, whereas in reality A’s father had already paid off that debt.

b. Payment for a consideration that did not materialize To make a payment for a consideration that did not materialize is to make a payment for a consideration which was anticipated to follow (as cause for the payment) but never did. Example: A, thinking that he would buy an immovable from B, gave him the amount of 3,000 euros at the time the promissory contract for the sale was concluded. However, the sale contract between A and B was never concluded in which case the sum of 3,000 euros should have been returned to A since the cause for which the payment was made did not materialize. But B never returned the 3,000 euros to A.

c. Payment for cause no longer existing Payment for a cause which ceased to exist is the payment furnished for a once valid cause which later on ceased to exist (‘expired cause’). Example: A gave 1,000 euros to B as an earnest for the fulfillment of a lease contract on an immovable that B was to rent out to A. The lease contract was fulfilled, at which point the money A had given to B as an earnest should have been returned to him since the cause for which the payment was made had ceased. But B never returned this money to A.

d. Payment for illegal cause Payment for illegal cause is the payment made for a cause clashing with the provisions of the law. Example: A loaned B a sum of money at an interest rate exceeding the permissible upper limit. In this case A became unjustifiably enriched from B’s property in the amount of the excess of the permissible upper limit for interest rates.

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e. Payment for immoral cause Payment for immoral cause is the payment clashing with the ‘good morals’ of society. Example: − A gave B an amount of money to defame physician C. − A gave B a sum of money to break in C’s house.

3. Legal Consequences of Unjust Enrichment The legal consequences of unjust enrichment consist in that the beneficiary has the obligation to return the enrichment. In the obligation from unjust enrichment the beneficiary is the debtor and the creditor is the one whose property was decreased to the extent that the debtor’s property was increased. The object of the beneficiary’s obligation is to return the enrichment to the person who was prejudiced (Art. 908 CC). More specifically: If possible, the beneficiary of the enrichment must return the very same object of the enrichment he received. If it is not possible to return the thing itself, either due to the nature of the thing (e.g. the enrichment consists in the use of another’s thing or in the rendering of services) or for different reasons (e.g. the thing was consumed or mixed with things belonging to the beneficiary, such as building on someone else’s land), the beneficiary is obliged to return the value of the enrichment. In case the original enrichment of the beneficiary is no longer present, but monetary value has taken its place (such as, for example, when payment was received from the sale of the thing, or the insurance company paid compensation for the thing’s destruction), the beneficiary is liable to return the replacement. The question is whether replacement is due if, in the event of sale, the monetary value received is higher than the value of the item. This will happen, for example, if the beneficiary, due to his personal skills, managed to sell the item at a considerably high price. The issue is disputed.17

17

In this regard, see Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 908, No 13; the same, in op. cit., p. 344 et seq.

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Finally, it should be noted that the obligation of the holder to return the enrichment is extinguished if he is no longer richer at the time of service of a summons instituting legal proceedings (Art. 909 CC). 4. Cases of Exclusion of the Claim for Unjust Enrichment There are certain cases where the recovery of unjust enrichment is precluded. They are the following: A. Payment of Non-due Debt with Knowledge of the Facts The claiming back of what was not due is excluded if the person receiving the payment proves that the payer was aware of the non-existence of the debt (Art. 905, 1 CC). Example: Although A knew that he owed nothing to his friend B who was burdened by many debts, he gave him 8,000 euros in order to help him pay off his debts. If later on A claims the 8,000 euros from B, his lawsuit will be rejected because B can prove that A gave him the money fully cognizant of the fact that he did not owe it to him.

B. Payment of Non-due Debt Made out of Special Moral Duty or Reasons of Propriety The claiming back of what was not due is excluded if the payment was made on account of a special moral duty or for reasons of propriety. Examples: − A paid the amount of 20,000 euros to his sister as a dowry believing that he is under legal obligation to provide her with a dowry. − A pays maintenance to his poor uncle believing that he has the legal obligation to do so. − A gave his friend a wedding present worth 1,000 euros. In the first two cases, if A finds out later on that he is not legally bound by such obligations (to provide a dowry to his sister or maintenance to his uncle), he may not claim back what he paid because the payment was made out of a special moral duty. In the third case, once again he may not claim back the gift because it was given for reasons of propriety.

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C. Payment for Immoral Cause Payment made for immoral reasons may not be claimed back if the immorality attaches to the payer exclusively or it includes the payer as well.18 On the contrary, the payer may claim back the payment, if the immoral cause concerns only the recipient. Examples: − The sum of money A gave to B to defame C may not be claimed back because the immoral cause concerns the payer as well. − On the contrary, the sum of money A gave to B so that he would not commit burglary may be claimed back because the immoral cause concerns only the recipient.

III. OBLIGATIONS FROM MANAGEMENT OF ANOTHER’S AFFAIRS 1. General Management of another’s affairs (negotiorum gestio) exists when a person, without having the right or the obligation to do so, manages another person’s affairs according to the actual or presumed will19 of the principal of the affairs (Art. 730, 1 CC). Examples: − A, without prior agreement with his neighbor B, pays his electricity bill while the latter is on vacation so that there won’t be an electricity shut off in B’s house. − A calls the Fire Department to extinguish the fire that broke out in B’s apartment during the absence of the latter.

2. Consequences of Managing Another’s Affairs Managing another’s affairs generates obligations between the principal of the affair and the manager of another’s affair which stem from the law.

18

Art. 907, para. 1 of the Greek Civil Code excludes the possibility of claiming back the unjust enrichment when the immoral cause also includes the payer. However, according to the prevailing view, exclusion exists also in the case where the immoral cause concerns only the payer (see Litzeropoulos, op. cit., p. 393; Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 907, No 5). 19 The presumptive will of the principal will be taken into consideration only when there is no actual will. Presumptive will is the will the principal would have had, if he knew the circumstances at the time of the management of his affairs.

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More specifically: The manager of another’s affairs is obliged: A. To conduct the other person’s affairs in the interest and according to the actual or presumptive will of the principal (Art. 730, 1 CC). B. To inform the principal, when he is able to do so, that he undertook the management and, if there is no danger from the postponement, to wait for his instructions (Art. 733 CC). C. To render account to the principal regarding the affair he managed (Art. 734 CC). D. To restitute to the principal what was acquired by reason of the management (Art. 734 CC). The principal of the affair is obliged: A. To render to the manager the expenses he incurred while conducting the principal’s business (Art. 736 CC). B. To compensate the manager for the prejudice he suffered while conducting the principal’s business (Art. 736 CC).

PART FOUR DEVELOPMENT OF THE OBLIGATION The obligation usually develops normally from birth to extinction. Sometimes, however, anomalies occur during its course. In the first chapter of this segment we will discuss the normal development of the obligation, in the second the abnormal, and in the third the special principles governing reciprocal contracts. CHAPTER A NORMAL DEVELOPMENT OF THE OBLIGATION I. WAY OF FULFILLING THE PERFORMANCE 1. Fulfillment of Performance in Good Faith A. General As was already mentioned,1 one of the fundamental principles of the law of obligations is the principle of good faith (bona fides). Article 288 of the Greek Civil Code stipulates that the debtor is obliged to fulfill the performance as good faith requires, taking also into account the business usage.

1

See above Introduction, Ch. A, III, 2.

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More specifically: Good faith is the directness and honesty required in transactions. Every party is obliged to act as an honest, fair, and sociable human being. Thus described good faith corresponds to objective good faith.2 Business usage is the sum total of practices prevailing in the business world. Business usage does not constitute an independent criterion of the behavior of the transacting party; it simply plays an auxiliary role. This means that for the court to determine when there is fulfillment of the performance in good faith on the part of the debtor, the prevailing business usage is also taken into consideration as long as it does not clash with social morality. In case the business usage leads to a solution unacceptable by good faith, the court follows solely the principles of objective good faith, given the fact that the latter is superior.3 Examples: − A neon sign hung by the tenant in the front of the store is a business usage acceptable by social morality. − The sale of merchandise at inflated prices during periods of want is a business usage clashing with social morality.

B. Extent of the Application of the Fulfillment of Performance in Good Faith Article 288 of the Greek Civil Code referring to the good faith fulfillment of the performance has general application. This means that it is applicable to all obligations, regardless of whether they are generated by a juridical act or by the law.4 Although the letter of Article 288 refers only to the debtor, it is accepted that it is binding for the creditor as well. That is, all transacting

2

See above Introduction, Ch. A, III, 2. See Balis, Law of Obligations, op. cit., para. 5, p. 21; A. Tsirintanis, in ERMAK, Art. 288, No 30 et seq.; Litzeropoulos, Elements of the Law of Obligations, op. cit., p. 132; N. Papantoniou, Good Faith in Civil Law, 1957, p. 107 et seq.; Stathopoulos, op. cit., p. 89 et seq.; the same, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 288, No 6; Ast. Georgiadis, op. cit., Vol. II, p. 6 et seq. 4 See Stathopoulos, op. cit., p. 86 et seq.; the same, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 288, No 31; Ap. Georgiadis, op. cit., p. 178; Ast. Georgiadis, op. cit., Vol. II, p. 8 et seq. 3

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parties have the obligation to show good faith in the fulfillment of their respective performances.5 Finally, it should be noted that the provision of Article 288 is mandatory law. 6 7 Consequently, the application of the principle of good faith may not be set aside beforehand, either by a waiver on behalf of one party or even by agreement between the parties. C. Consequences of the Application of Good Faith in the Fulfillment of Performance The principle of good faith in the fulfillment of the performance sometimes broadens the debtor’s obligations and other times it narrows them. More specifically: The debtor’s obligations are broadened when he is burdened with additional obligations, such as the obligation to notify the creditor in case of destruction of the thing owed, the obligation for loyalty the employee has vis-à-vis his employer, the obligation of the employer to protect the health and physical well being of the employee, etc. The debtor’s obligations are narrowed down when it is required for the creditor to show leniency regarding the exact performance of the obligation. The limits of such leniency may refer to the quantity or quality of the performance, the time or place of it, etc. Finally, there are cases when the good faith required in business may free the debtor altogether from the obligation to furnish the performance because of ‘moral impossibility’ to perform (e.g. when an actor, just prior to the beginning of the play, is suddenly informed of his father’s death, in which case there is ‘moral impossibility’ for him to play his role).

5

See Balis, op. cit., para. 5, p. 16; Zepos, op. cit., Vol. I, p. 157; Tsirintanis, in ERMAK, Art. 288, No 6; Stathopoulos, op. cit., p. 90; the same, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 288, No 12; Ast. Georgiadis, op. cit., Vol. II, p. 9 et seq. 6 Regarding the notion of the rules of mandatory law, see above Introduction to Law, Ch. E, II, 2. 7 See Balis, op. cit, para. 5, p. 21; Zepos, op. cit., Vol. I, p. 156; Tsirintanis, in ERMAK, Art. 288, No 11; Stathopoulos, op. cit., p. 91; the same, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 288, No 28; Ap. Georgiadis, op. cit., p. 180; Ast. Georgiadis, op. cit., Vol. II, p. 10.

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2. Partial Fulfillment of Performance The debtor does not have the right to furnish partial performance of the obligation due (Art. 316 CC). Consequently, the creditor has no obligation to accept partial performance of the obligation. In case the debtor offers partial fulfillment of the performance, the creditor may decline to accept it without being considered in default regarding the part offered; the debtor on the other hand will be in default 8 regarding the entire performance. Example: A owed B 1,000 kilos of grain which he was supposed to deliver on May 5th. A offered B 700 kilos on May 5th and promised to furnish the remaining 300 later on. B is entitled to decline the offer of 700 kilos in which case A is in default for the entire performance, i.e. for the 1,000 kilos.

But the creditor may not decline the partial fulfillment of the performance when such behavior on his part clashes with the principles of good faith during performance.9 This will happen if, for example, the part that was not furnished is insignificant by comparison to the part that was furnished. Example: A, who on May 5th owed to furnish B 1,000 kilos of grain, delivers 995 kilos on May 5th and promises to deliver the remainder shortly after. In this case B is not entitled to decline to accept the 995 kilos of grain – under the pretext that 5 kilos are missing – because such behavior clashes with the principle of good faith.

However, in view of the fact that the provision of article 316 of the Greek Civil Code, forbidding partial fulfillment of the performance, is nonmandatory law (jus dispositivum),10 in accordance with the principle of the freedom of contracts it may be agreed between the parties (Art. 361 CC)11 that partial fulfillment on behalf of the debtor is permitted. Lastly, it should be noted that, from the provision of law in Article 316 of the Greek Civil Code which forbids partial fulfillment of the performance only for the debtor but does not mention anything about the creditor, it follows that the creditor, since he is entitled to claim the entire performance, may, if he wishes, claim the partial one as well. 8

Regarding the consequences of the debtor’s default, see below Part Four, Ch. B, II, 2. See Balis, op. cit., para. 37, p. 137; Litzeropoulos, op. cit., p. 149; Agg. Georgiadi, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 316, No 2; Filios, Law of Obligations, General Part, op. cit., p. 103; Ast. Georgiadis, op. cit., Vol. II, p. 23 et seq. 10 Regarding the concept of the rules of jus dispositivum, see above Introduction to Law, Ch. E, II, 2. 11 See above Part Three, Ch. A, II. 9

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3. Fulfillment of Performance by a Third Party A. General The performance may be fulfilled by a third party, something which results in releasing the debtor (Art. 317 CC). Third party is any person who, in order to see the debtor released from his obligation, pays the latter’s debt to the creditor in his (the third party’s) own name. The persons that the debtor employs for the fulfillment of his performance, and consequently act in his name, are not third parties. This is, for example, the case with the representative (ex lege, or voluntary) or with the underling assisting the debtor with the fulfillment of his performance. B. Cases where Performance by a Third Party is Precluded A third party cannot pay the debt of another in the following cases: a. If the creditor has an interest in the debtor paying the debt in person (Art. 317 CC). Naturally, in monetary debts there is no such interest in fulfillment of the performance in person. Examples: − A has agreed with B that the latter should teach him English. − A has agreed with surgeon B that the latter should operate on him. In the above cases A clearly has an interest in the debtor’s fulfilling the obligation in person.

b. When both debtor and creditor agree on the rejection of the fulfillment of the performance by a third party. If only the debtor is opposed to the third party fulfillment, the creditor is not obliged to also reject the fulfillment by a third party. The law only gives him the right to reject it (Art. 318 CC). C. Consequences of Fulfillment of Performance by a Third Party Fulfillment of the performance by a third party results in the extinction of the obligation provided that it fully corresponds to the object and content of the performance due and was made with the intention to fulfill the performance in question.

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In cases where performance by a third party is not precluded by law, if the creditor rejects such performance, he is considered in default.12 Whether the third party who made payment on behalf of the debtor may have recourse against the debtor and seek to recover what he paid is decided by the internal relation binding them. If, for example, the third party acted as manager of another’s affairs, or as the debtor’s mandatary,13 he may recover from the debtor, now released from the obligation, what he paid. II. PLACE OF FULFILLMENT OF THE PERFORMANCE Place of fulfillment of the performance is the place where the debtor owes to furnish his performance and the creditor owes to accept it. Regarding the determination of the place of performance the Greek Civil Code stipulates the following: 1. The place of fulfillment of the performance is determined by the legal transaction (Art. 320, 1 CC). According to the principle of the freedom of contracts (Art. 361 CC), the contracting parties are free to determine the place where the performance will be furnished. Example: A sells his car to B and it is agreed that the place where A will deliver the car to B is the garage in which it is parked.

2. If the place of performance is not specified in the legal transaction, it may be deduced from the circumstances, especially from the nature of the obligational relation (Art. 320, 1 CC). Examples: − A agrees with B that the latter will provide care for her bedridden mother. From the nature of the employment contract it is deduced that the place of fulfillment of the performance is the residence of A’s mother. − A is hired as a worker in B’s factory. From the nature of the employment contract it is obvious that B’s factory is the place of performance for A.

3. If the place of fulfillment of the performance is neither explicitly agreed upon nor deduced from the legal transaction, we distinguish between monetary and non monetary performance. A. If the debt is non-monetary, the place of performance is the place of the debtor’s domicile at the time of the generation of the obligation (Art. 12 13

See below Part Four, Ch. B, IV. See above Part Three, Ch. B, III, and below Part Eight, Ch. B, VIII.

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320, 1 CC). But if the obligation is derived from the exercise of the debtor’s profession, then the performance must be furnished at the place of the debtor’s professional establishment instead of the place of his domicile (Art. 320, 2 CC). Domicile is not only the main and permanent place where the debtor has settled but also the building where he lives or exercises his profession. In case there is no such place, the place where the debtor resides is taken into consideration. Example: A who lives in Athens sells his car to B who lives in Corinth. A is supposed to furnish the car to B two months after the conclusion of the sale. If no place of performance has been agreed between A and B for the delivery of the car, the vehicle will be furnished in Athens even if in the meantime A has moved to Nafplion.

B. If the performance is monetary, the debtor needs to furnish it at the place where the creditor has his domicile at the time of payment (Art. 321, 1 CC). If the claim of the creditor has arisen from the exercise of his profession, the monetary performance must be furnished at the place of the creditor’s professional establishment (Art. 321, 2 CC). Example: A owes B 1,500 euros due and payable on the 15th of December. If there is no agreement between A and B as to the place of payment, A is obliged to make the payment at the domicile or the professional establishment B will have on the 15th of December.

III. TIME OF FULFILLMENT OF THE PERFORMANCE The time the performance must be fulfilled is the time at which the debtor is obliged and entitled to fulfill the performance and the creditor, respectively, is entitled and obliged to accept it. That is, time of performance is the time past which the performance will be considered past due. Regarding the determination of the time of performance the Greek Civil Code stipulates the following: 1. The time of performance may be determined by the contract the parties have concluded (Art. 323 CC). The parties are free, according to the principle of the freedom of contracts (Art. 361 CC), to set the time of performance. Example: A buys a car from B and they agree that B will deliver the car on the 15th of September.

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2. If there is no such contractual provision, the time of performance may be deduced from the circumstances and especially from the nature of the obligational relation (Art. 323 CC). Example: A hires B as an employee in his business without agreeing with him anything about the time his services are due. However, it is deduced from the nature of the employment contract that B must offer his services during the regular hours of operation of the business.

3. Occasionally, the time of performance stems directly from a provision of the law. Examples: − If a contract for the lease of a thing was concluded without a provision as to when the rent is due, according to Article 595, para. 2 of the Greek Civil Code, it will be due at the expiration of the lease. − If an employment contract was concluded without a provision as to when the salary is due and payable, according to Article 655, para. 1 of the Greek Civil Code it is due after the performance of the work.

4. If the time of performance cannot be deduced from the contract, the circumstances, or the law, according to the provision of Article 323 of the Greek Civil Code, the performance is to be fulfilled ‘forthwith’. ‘Forthwith’, in the strict sense of the term, means without any delay, that is, the creditor may demand performance from the debtor immediately after the generation of the obligation. However, the true meaning of the term ‘forthwith’ will be found once we use the yardstick of good faith and business usage. Consequently, the word ‘forthwith’ means that the debtor must immediately begin preparatory actions towards the fulfillment of the performance and furnish it within a reasonable time.14 Examples: − A commissions B, a civil engineer, to build a single family house on her land without agreeing with him when the building should be completed. B must start carrying out the work at once and produce the agreed work within a reasonable time. − A gives a piece of fabric to B, who is a tailor, to make him a suit; but he makes no agreement as to when it should be finished. B must begin working on it immediately and deliver it within a reasonable time.

14

See Balis, op. cit., para. 42, p. 163; P. Zepos, in ERMAK, Art. 323, No 6; Litzeropoulos, Elements of the Law of Obligations, op. cit., p. 144; Agg. Georgiadi, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 323-324, No 17 et seq.; Stathopoulos, op. cit., p. 359 et seq.; Ast. Georgiadis, op. cit., Vol. II, p. 40 et seq.

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IV. RIGHT OF RETENTION 1. The Concept Right of retention (jus retentionis) is the right of the debtor against the creditor, who also has a related claim against the former which is past due, to withhold his performance until the creditor fulfills his own (Art. 325 CC). 2. Conditions for the Exercise of the Right of Retention For the exercise of the right of retention certain conditions need to concur: A. Claim of the Creditor The claim of the creditor, which may have as its object any kind of performance, must be past due. B. Counter Claim of the Debtor The counter claim of the debtor must also be past due at the time of the exercise of the right of retention. C. Relation between the Reciprocal Claims The law does not determine when there is reciprocity of the two claims. Consequently, this is a factual matter which will be assessed by the court in every particular instance. However, it is accepted that relatedness is present in the following instances: a. When the reciprocal claims stem from the same legal relation. Example: A has concluded with B an employment contract. B is in default regarding the payment of A’s wages. A is entitled to refuse to perform his services to B until the latter pays the employee’s past due wages (retention of services).

b. When a person is bound to furnish a thing on which he has a counter claim for expenses incurred in connection with it or for the damage he suffered from it (Art. 326 CC). Examples: − A leased his apartment to B and the tenant incurred expenses in repairing the premises. In the event that A brings action against B for return of the leased premises, B may refuse performance if A does not reimburse him for the expenses he incurred.

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− A leased an old, single family home to B. During the lease period, part of the roof of the house collapsed resulting in damaging the tenant’s furniture. In case A brings action against B for return of the leased premises, B may refuse to do so if A does not compensate him for the damage he suffered.

c. When the reciprocal claims originate in the same social relation.15 Examples: − A loaned his classmate B a book for a few days. After several days, B loaned 50 euros to A for two days. When after two months A asked B to return him the book, B may refuse to do so until A returns to him the 50 euros he had borrowed from him. − During a reception A took B’s fur coat by mistake, leaving B her (A’s) own coat which B necessarily took. When the next day A asks B to return her the coat, A may refuse to do so until B also returns A’s coat to her.

3. Way of Exercising the Right of Retention The right of retention may be exercised in court or out of court. Out of court the right of retention is exercised by way of the debtor’s response to the creditor’s call upon the debtor to perform.16 In court the right of retention is exercised by a postponement plea advanced by the debtor. 4. Consequences of the Exercise of the Right of Retention The consequences of the exercise of the right of retention are that the fulfillment of the debtor’s past due performance is postponed until the creditor fulfills his own. If the debtor exercises his right of retention in court by way of opposing a plea, the court will rule against the defendant debtor on condition of simultaneous performance of the creditor’s performance to the debtor (Art. 329 CC).

15

See Balis, op. cit., para. 43, p. 167; Zepos, in ERMAK, Art. 325, No 8; Litzeropoulos, Elements of the Law of Obligations, op. cit., p. 215; Michailidis – Nouaros, Law of Obligations, op. cit., p. 123; Agg. Georgiadi, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 325, No 17; Stathopoulos, op. cit., p. 372 et seq.; Ap. Georgiadis, op. cit., p. 194; Ast. Georgiadis, op. cit., Vol. II, p. 46; Filios, op. cit., p. 104. 16 For the concept of the call upon the debtor to perform (interpellatio), see below Part Four, Ch. B, II, 1, E.

CHAPTER B ANOMALOUS DEVELOPMENT OF THE OBLIGATION In certain cases the obligation does not develop normally so as to lead to fulfillment of performance. The anomalous development of an obligation is manifested in the following ways: -

Impossibility of performance Debtor’s default Improper performance (malperformance) Creditor’s default I. IMPOSSIBILITY OF PERFORMANCE

1. The Concept and Types of Impossibility of Performance Impossibility of performance exists when the debtor is not in a position to fulfill the performance he owes. The main distinctions of the impossibility of performance are the following: A. Impossibility of Performance Arising from Fault and not Due to Fault a. Impossibility arising from fault The impossibility of performance arises from fault if it is due to a fact for which the debtor is responsible. Example: A was under the obligation to furnish a car to B which, however, A had destroyed prior to delivery.

b. Impossibility not due to fault The impossibility of performance is due to a fact for which the debtor is not responsible.

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Example: A was under the obligation to furnish a car to B which, however, prior to delivery was accidentally destroyed by fire.

B. Initial and Supervening Impossibility of Performance a. Initial impossibility of performance The impossibility of performance is initial when it exists at the time of the generation of the obligation. Example: A sells B his car which is already totally destroyed.

b. Supervening impossibility of performance The impossibility of performance is supervening when it occurred after the generation of the obligation but prior to the fulfillment of the performance. Example: A sold B his car which he was supposed to deliver one month later. However, A’s car got destroyed after the conclusion of the sale and prior to the time of delivery.

C. Subjective and Objective Impossibility of Performance a. Subjective impossibility of performance The impossibility of performance is subjective when the performance is impossible only for the debtor. Example: A hires B to teach him Spanish but B does not know any Spanish himself.

b. Objective impossibility of performance The impossibility of performance is objective when the performance is impossible for all. Example: A sells B a piece of land in the planet Mars.

D. Total and Partial Impossibility of Performance a. Total impossibility of performance The impossibility of performance is total when the entirety of the performance owed is impossible. Example: A sold B his television set which, however, prior to delivery got totally destroyed by fire.

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b. Partial impossibility of performance The impossibility of performance is partial when only part of the performance cannot be furnished. Example: A sold B two very valuable paintings he had in his home. Before delivery, however, one of the two paintings got destroyed due to A’s negligence.

E. Natural, Legal, Economic, and Moral Impossibility of Performance a. Natural impossibility of performance The impossibility of performance is natural, when the performance cannot be fulfilled on account of reasons pertaining to the natural condition of the object due. Example: A was under the obligation to furnish B a car which, however, got burned prior to delivery.

b. Legal impossibility of performance The impossibility of performance is legal when the performance is prevented on legal grounds. Example: A sold B an item which is outside the realm of transactions (res extra commercium),1 for example, a public square.

c. Economic impossibility of performance The impossibility of performance is economic when the performance is materially possible but would entail an exorbitant expenditure on the part of the debtor to fulfill it.2

1

Things outside the realm of transactions (res extra commercium) are the things that are common to all, the things for common use, and the things destined to serve public, municipal, communal, or religious purposes (Art. 966 CC). See below Property Law, Part One, Ch. A, II, 6. 2 It is disputed whether the economic and moral ‘impossibility of performance’ constituting impossibility of performance not due to fault result in complete release of the debtor (in favor of this view, Balis, op. cit. para. 47, p. 179 et seq.; Litzeropoulos, op. cit., p. 193 et seq. ; Zepos, op. cit., Vol. I, p. 129 et seq.; Michailidis – Nouaros, op. cit., p. 152 ; Ast. Georgiadis, op. cit., Vol. I, p. 287 et seq.); or whether in this case the debtor is entitled to refuse performance in the context of bona fides (in favor of this view, A. Gazis, in ERMAK, Arts. 335-348, No 30; Filios, op. cit., p. 201 et seq.); or, finally, whether it should be left to the court to decide if there is impossibility of performance in the specific situation (in favor of

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Example: A owed to furnish B a piece of jewelry which fell to the bottom of the sea.

d. Moral impossibility of performance The impossibility of performance is moral when the performance is possible objectively speaking but clashes with the conscience or emotions of the debtor.3 Example: Actor A, shortly before appearing in a performance, was informed of the sudden death of his father.

2. Consequences of the Impossibility of Performance To assess the consequences of the impossibility of performance we must distinguish between the cases where it arises from fault of the debtor and those where it does not.4 A. Impossibility of Performance Arising from Fault of the Debtor a. Total impossibility of performance If the impossibility of performance arising from fault of the debtor is total, he is liable to compensate the creditor for the prejudice caused him by the non-fulfillment of performance (Arts. 335 and 362 CC). The compensation owed by the debtor includes the positive damage caused to the creditor (quantum abest) as well as his lost profit (quantum lucrari potui, or lucrum cessans), i.e. the profit he would have had if the performance had been fulfilled.5 b. Partial impossibility of performance In case of partial impossibility of performance arising from fault, the debtor is obliged to fulfill the part of the performance which is still possible and pay damages for the part of the performance which is impossible.

this view, Stathopoulos, op. cit., p. 427; the same, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 335-336, No 7 et seq.). 3 See above footn. 2. 4 For the consequences of the impossibility of performance in reciprocal contracts, see below Part Four, Ch. C, III. 5 See above Part One, Ch. A, V, 2, A, b.

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Example: A owed B an old dining room set and an old living room set. Before delivery of the furniture, the dining room set got destroyed on account of A’s fault. A has the obligation to deliver the living room set to B and pay him damages for the dining room set which was destroyed due to his (A’s) fault.

However, if the creditor does not have an interest in the partial performance, he has the right, within a reasonable time from the time of the offer or the invitation of the debtor, to decline such partial performance altogether and consider the impossibility as total (Art. 337 CC). That is, in this case he will claim damages as if the performance were impossible in its entirety. Example: A owed B, who is a collector of old books, an old twelve volume encyclopedia which can no longer be found in the market. Before delivery, and through A’s fault, three of the volumes of the encyclopedia were destroyed. B who no longer has an interest in getting the remaining nine volumes − since the encyclopedia would thus be incomplete − after informing the debtor about this in a timely fashion, has the right to decline the nine volumes and regard the impossibility as total. In this case B will seek to be compensated for impossibility of performance regarding all twelve volumes of the encyclopedia.

B. Impossibility of Performance Not Due to Fault The impossibility of performance which is not due to fault may be total or partial. a. Total impossibility of performance If the impossibility of performance is total, the debtor is released from the obligation to furnish the performance (Arts. 336 and 363 CC) but has the following collateral obligations vis-à-vis the creditor: aa. to inform the creditor of the impossibility as soon as he is informed of it himself (Art. 336, 2 CC). Otherwise he owes him compensation for the damage he suffered from failure to inform him; bb. to yield the eventual surrogate or substitute to the creditor (Art. 338 CC). Surrogate (surrogatum) is anything that has devolved upon the debtor as a result of the impossibility of performance. Example: A owed B a specific car. However, due to a chance event, this car got destroyed prior to delivery to B. In this case A is released from the obligation to deliver the car to B but is under the obligation to inform him of the incident as

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soon as he is informed of it himself and to pay B the insurance proceeds6 he collected from the insurance company with which the car was insured.

b. Partial impossibility of performance In case of partial impossibility of performance, the debtor is released from his obligation to perform as regards the part which became impossible to furnish, but is liable to perform as regards the part which may still be furnished. In case of partial impossibility, not due to the debtor’s fault, the debtor is additionally responsible to inform the creditor in a timely fashion and to furnish him the surrogate which has possibly devolved upon him as a result of the partial impossibility of performance. Example: A owed B two specific cars. Before delivery, one of the cars got destroyed due to a chance event (e.g. fire). A is released from the obligation to furnish the destroyed car but he is responsible to do the following two things: to inform the creditor of the impossibility of performance regarding the one car and to pay to him the insurance proceeds he collected from the insurance company with which the destroyed car was insured.

II. DEBTOR’S DEFAULT 1. The Concept and Conditions for the Debtor’s Default A debtor is in default when due to fault of his own he delays the fulfillment of a possible and past due performance. For the debtor to be in default the following conditions need to concur (Arts. 340-342 CC): A. Valid Obligational Relation The performance due must result from a valid obligational relation. B. Possible Performance The performance due must be possible. If the performance is impossible, the provisions of the law for impossibility of performance are applicable. 6

Insurance proceeds consist in the sum paid to the insured by the insurance company if the risk against which he was insured materialized.

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C. Past Due Performance The performance must have fallen due, i.e. the time for its fulfillment must have arrived without the performance having yet been furnished. D. Actionable Performance The performance must be actionable, i.e. it must not be subject to postponement plea, such as, for example, the plea of retention,7 or the plea of the unperformed contract (exceptio non adimpleti contractus).8 Example: Shopkeeper A refuses to deliver to customer B the television set he repaired for him, if the latter does not pay for the repairs. In this case where at the time of performance the debtor (A) advances against the creditor (B) the plea of retention, the obligation − although already past due − is not actionable.

E. Call upon the Debtor to Perform According to Article 340 of the Greek Civil Code the creditor needs to call upon the debtor to perform, i.e. to invite the debtor to proceed with fulfillment of his performance (interpellatio).9 The purpose of this warning is to create in the debtor the certainty as to when exactly the creditor expects performance. Such warning – given either judicially (e.g. action compelling the debtor to perform10) or extrajudicially (e.g. a letter of demand) – must be given only after the performance has become actionable. The performance is deemed actionable even in the case of contracts where, because no time for the performance has been agreed, it is due ‘forthwith.’11

7

See above Part Four, Ch. A, IV. See below Part Four, Ch. C, II. 9 The right to call upon the debtor to perform is a ‘condition forming,’ or constitutive, right (regarding ‘condition forming’ rights, see above General Principles, Part Two, Ch. A, II, 2, B). The call upon the debtor to perform is a quasi juridical act, i.e. its results follow regardless of the will of the person engaging in it. See Gazis, in ERMAK, Art. 340, No 4; Balis, General Principles, op. cit., para. 32, p. 107; Michailidis – Nouaros, op. cit., p. 160; Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 340, No 12; the same, General Law of Obligations, op. cit., p. 433; Filios, op. cit., p. 214; Ap. Georgiadis, op. cit., p. 269; Ast. Georgiadis, op. cit., Vol. II, p. 68. 10 For the concept of the action to perform (or compelling the debtor to perform), see above General Principles, Part Two, Ch. B, II, B. 11 See above Part Four, Ch. A, III, 4. 8

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Example: A, a building contractor, must deliver to B the house he has undertaken to build for him for which no time of performance had been specified in the agreement. After a reasonable amount of time since the conclusion of the agreement, B calls upon A to perform demanding that the house be delivered on October 15. If A, despite the warning, does not deliver the house on October 15, he is in default, unless he proves that the delay was not due to his fault.

The debtor does not need to be called to perform regarding the fulfillment of his performance if a specific date has been agreed. In this case the mere elapse of the fixed date puts the debtor in default (Art. 341, 1 CC). Example: A owes to deliver a car to B on May 15. In this case a call to the debtor to perform is not necessary. Consequently, if on May 15 A does not deliver the car to B, he is in default.

F. Fault of the Debtor The debtor must be at fault for the delay. If the delay in performance is due to an event regarding which the debtor is not responsible (e.g. serious illness of the debtor, error of the debtor − not due to his fault − as to the existence or extent of the debt), he is not in default (Art. 342 CC). 2. Consequences of the Debtor’s Default The consequences of the debtor’s default are the following:12 A. Compensation a. When the debtor is in default, in addition to the delayed performance which he continues to owe, he also owes compensation for the prejudice he caused to the creditor on account of the delay (Art. 343, 1 CC). The compensation needs to cover the creditor’s positive damage as well as his loss of profit.13 Example: A owed to deliver a car to B and it was agreed that the car would be delivered on May 15. B, who was counting on the car, planned a business trip with it for May 20. A did not deliver the car to B on the date agreed upon and, in order for B to go ahead with his planned trip, he had to rent a car. In this case A, in

12

Regarding the consequences of default in the fulfillment of performance on the part of one of the contracting parties in reciprocal contracts, see below Part Four, Ch. C, IV. 13 For the concepts of positive damage and loss of profit, see above Part One, Ch. A, V, 2, A, b.

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addition to the car he owes to B, also owes him compensation for his expenses resulting from the delay in delivering the car.

b. If the delayed performance is monetary, the compensation is determined as follows: aa. The defaulting debtor, in addition to the monetary performance, is always liable for default interest14 without it being necessary for the creditor to prove prejudice (Art. 345, 1 CC). bb. The defaulting debtor is bound to pay compensation to the creditor for further positive damage, if the latter can prove that he suffered such damage (Art. 345, 2 CC); but no compensation for loss of profit is due. B. Intensification of the Debtor’s Liability The liability of the debtor is intensified during the period he is in default. For as long as the default lasts, the debtor is liable not only for negligence (any negligence) but also for chance events (casus),15 unless he proves that the prejudice would have occurred even if the performance were fulfilled on time (Art. 344 CC). Consequently, if during the period of the debtor’s default the thing owed gets destroyed by chance, the debtor is liable. The debtor is released only if he proves that the damage would have occurred even if the performance had been fulfilled in a timely fashion. Example: A owed B a computer and they had agreed that he would deliver it to him on June 15. A defaulted and during the period of his default the computer he was supposed to deliver to B got burned due to a fortuitous event (e.g. fire). In this case A is not released from his obligation vis-à-vis B whom he must compensate for the impossibility of delivery of the computer. However, if during the period of A’s default B’s store, where the computer would have been installed, got totally destroyed by fire, A is released because the computer would have been destroyed even if it had been delivered on time.

3. Debtor’s Default Lifted The debtor’s default is lifted when its consequences no longer exist. The debtor’s default may be lifted in the following ways:

14 15

Regarding the rate for default interest, see above Part One, Ch. A, IV, 2, B. Regarding chance events, see above Part Two, Ch. B, III, 3, footn. 11.

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A. By fulfillment of all of the debtor’s obligations, i.e. not only of his obligation to effect performance, but also of his obligation to pay for damages or – in case of monetary debts – for the interest due. B. By agreement between creditor and debtor that the above mentioned consequences are being lifted. C. By subsequent default of the creditor, i.e. by the creditor’s refusal to accept the debtor’s effective and appropriate performance. III. IMPROPER PERFORMANCE Improper performance (malperformance) of the obligation exists when the debtor, without there being a case of impossibility of performance or default, implements a ‘bad’ performance. Examples: − A delivered to B a brand new car which, however, is defective, e.g. its breaks do not work. − A owed B an electrical appliance. At delivery A gave B the wrong instructions for its operation which resulted in the damage of the appliance due to improper use.

The Greek Civil Code has no provisions for improper performance. To cover the existing vacuum in the law we apply by analogy the provisions for impossibility of performance and debtor’s default.16 In the case of improper fulfillment of the performance we need to distinguish between the following: 1. If the improper fulfillment of the performance is due to debtor’s fault, the debtor continues to be liable for the appropriate fulfillment of the performance, naturally assuming that this is possible (i.e. he must lift the improperness). But he must also compensate the creditor for the prejudice the latter sustained due to the improper fulfillment of the performance. 2. If the improper performance of the obligation is not due to fault, the debtor continues to be liable for the proper fulfillment of the performance, naturally assuming that this is possible (i.e. he must lift the improperness).

16

See Zepos, op. cit., Vol. II, p. 594 ; Litzeropoulos, op. cit., p. 211; Michailidis – Nouaros, op. cit., p. 167 ; Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introd. to Arts. 335-348, No 25; the same, General Law of Obligations, op. cit., p. 442 et seq.; Filios, op. cit., p. 226 ; Ap. Georgiadis, op. cit., p. 279 et seq.; Ast. Georgiadis, op. cit., Vol. II, p. 79 et seq.; Spyridakis, op. cit., p. 254 et seq.

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However, he is not responsible to compensate the creditor for the damage he suffered due to improper fulfillment of the performance. IV. CREDITOR’S DEFAULT 1. The Concept and Conditions for the Creditor’s Default When the creditor does not accept the performance offered to him, he is in default (Art. 349, 1 CC). For a creditor to be in default the following conditions need to concur: A. Performance Must be Offered The debtor must offer the performance he owes to the creditor. Example: On October 15 A owes to deliver to B 1,000 kilos of grain. Indeed, on October 15 A offers 1,000 kilos of grain to B.

B. Performance Must be Possible The performance offered by the debtor must be possible. Otherwise, it would be a case of impossible performance. C. Performance Must be Furnished ‘in Deed’ (by Action) The offer that the debtor makes to the creditor must be furnished ‘in deed,’ i.e. by action and not simply verbally (Art. 349, 2 CC). An offer is an offer ‘in deed’ when the debtor is in total readiness to fulfill the performance and the only thing missing is the creditor’s acceptance.17 Example: A called plumber B to repair the pipes in his house. B’s offer is an offer ‘in deed’ if he comes to A’s house with all the appropriate tools for the repair.

Exceptionally, the creditor is considered in default even without an offer ‘in deed’ in the following cases: 1. If the creditor has declared beforehand that he is not going to accept the performance (Art. 350 CC). 17

See I. Kapodistrias, in ERMAK, Art. 349, No 4; Balis, op. cit., para. 61, p. 230; A. Kritikos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 349, No 7; Stathopoulos, op. cit., p. 452 et seq.; Ap. Georgiadis, op. cit., p. 293; Filios, op. cit., p. 233 et seq.; Ast. Georgiadis, op. cit., Vol. II, p. 90 et seq.

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Example: A owes to deliver to B 1,000 kilos of grain on October 15. Before the 15th of October, B calls A and lets him know that he will not accept the offer of the 1,000 kilos of grain.

2. If the creditor, although invited by the debtor, does not proceed with the required action or co-operation without which the debtor cannot fulfill his performance (Art. 351, 1 CC). An invitation is not required regarding the action that must be undertaken by the creditor if a fixed date has been agreed (Art. 351, 2 CC). Examples: − A owes B 1,000 kilos of grain and they have agreed that delivery will take place in B’s barn. A has notified B of the impending delivery but the latter does not open the door of the barn, in which case A cannot fulfill his performance. − A has agreed to reupholster B’s living room furniture using a fabric B would provide. A asked B to give him the fabric but she did not. In this case A is unable to proceed with implementation of his performance. In the above examples, if a fixed date had been agreed regarding the action required on the part of the creditor, invitation would not have been necessary. If, for example, the 15th of October and the 10th of June had been agreed as delivery dates for the grain and the fabric respectively, the mere elapse of those dates puts the creditor in default.

D. Appropriate Performance The offer of the performance must be appropriate (Art. 349, 2 CC). The offer is appropriate when from the point of view of quantity and quality it corresponds with the content of the performance due and when the performance is fulfilled in the right time and place.18 Example: On October 15 A is obliged to deliver to B 1,000 kilos of top quality grain from the stock of grain he has in his barn. On the appointed date A is indeed in his barn ready to deliver the 1,000 kilos of top quality grain to B.

E. Not Acceptance of the Performance Offered The creditor is in default if he does not accept the performance offered to him (Art. 349, 1 CC).

18

See Kapodistrias, in ERMAK, Art. 349, No 5; Balis, op. cit., para. 61, p. 231; Kritikos, op. cit., Art. 349, No 8 et seq.; Stathopoulos, op. cit., p. 453 et seq .; Ap. Georgiadis, op. cit., p. 293 et seq.; Ast. Georgiadis, op. cit., p. 93 et seq.

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Example: Although on October 15 A waits for B at his barn in order to deliver the 1,000 kilos of grain he owes to him, B does not go to pick up the grain, or goes but refuses to pick it up.

2. Consequences of the Creditor’s Default The consequences of the creditor’s default are the following: A. Reduction of the Debtor’s Liability While the creditor is in default the debtor still owes him the performance. However, the debtor’s liability is reduced for as long as the creditor is in default and he is only liable for willful and grossly negligent conduct (Art. 355 CC). Consequently, during the time of the creditor’s default the debtor is liable for the damage or destruction of the performance only if this results from intention (dolus) or ‘gross’ negligence (culpa lata). On the contrary, if during this period damage or destruction to the performance took place due to slight negligence (culpa levis)19 on the part of the debtor, the latter is released. B. Creditor’s Obligation to Pay for Expenses a. The debtor is entitled to demand from the defaulting creditor all the additional expenditures he had to incur for the ineffectual offer of the performance (Art. 358 CC). Example: A, who owed B 1,000 kilos of grain to be delivered to the latter’s barn, paid for the transportation of the grain to the barn. Since B was not there, or did not open the barn door for him, A is entitled to demand from B the freight charges he incurred.

b. The debtor is entitled to demand from the defaulting creditor all he spent for safeguarding and maintenance of the thing owed during that period (Art. 358 CC). Example: A owed B 1,000 kilos of grain to be delivered to the latter’s barn. The barn door, however, was locked. As a result, A had to take the grain to another storage place and pay a certain amount of money for safeguarding. A is entitled to demand from B the expenses he incurred for the safeguarding of the grain.

19

It is for the court to assess when the negligence is slight. The court will decide in every particular case if there is slight or gross negligence. See above Part Two, Ch. B, III, B.

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3. Creditor’s Default Lifted The creditor’s default may be lifted in the following ways: A. By a declaration on the part of the creditor that he accepts the performance. If the debtor either does not wish or − due to fault of his own − can no longer fulfill the performance, he is then in default himself. B. By agreement between the creditor and the debtor to this effect (i.e. that the consequences of the creditor’s default are lifted). C. By a declaration of the debtor that he revokes the offer to perform.

CHAPTER C PRINCIPLES APPLYING TO RECIPROCAL CONTRACTS I. GENERAL A contract is reciprocal when it generates rights and obligations for both parties.1 In the reciprocal contract each party is at once debtor and creditor because two performances are due in the opposite direction. These performances, each called vis-à-vis the other ‘counter performance’, form an organic whole because each is the reason for and the end of the other, i.e. they are closely interdependent. Examples: − A sells a car to B in order to receive from him the agreed amount of money and, respectively, B pays A the agreed amount of money so that the latter may transfer the ownership and deliver the car to him (B). − A rents his apartment to B in order to receive the agreed amount of rent and B assumes the obligation to pay the amount of rent agreed in order to have the use of A’s apartment.

Because of the interdependency of the two performances, the reciprocal contracts are governed by special principles. II. PLEA OF THE UNPERFORMED CONTRACT (EXCEPTIO NON ADIMPLETI CONTRACTUS) 1. The Concept The reciprocal contracts are governed by the rule that both parties are obliged to perform their respective obligations simultaneously.2 Consequently, each contracting party, when asked by the other (either via 1 2

See above Part Three, Ch. A, III, 2. This rule follows a contrario from Art. 374, 1 CC.

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legal action or extra-judicially) to effect performance, has the right to oppose the plea of the unperformed contract (exceptio non adimpleti contractus) and refuse fulfillment for as long as the other party does not fulfill, or offer to fulfill, his own performance (Art. 374, 1 CC). The plea of the unperformed contract cannot be opposed when one of the contracting parties is obliged to fulfill his performance first. The obligation to be the first to fulfill may result either from the agreement of the parties or from the law. Examples: − In a sale on credit the seller is obliged to deliver the sold item immediately whereas the buyer, according to the credit agreement, is obliged to pay later (obligation to be the first to fulfill resulting from the agreement of the parties). − In a contract for work the contractor is obliged to be the first to fulfill his obligation of performing the work whereas, according to Art. 694, 1 of the Greek Civil Code, the master of work is obliged to pay the contractor’s remuneration at the time of delivery of the work (obligation to be the first to fulfill resulting from the law).

2. Consequences of Opposing the Plea of the Unperformed Contract The result of opposing the plea of the unperformed contract is that the party opposing this plea is obliged to fulfill his own performance, provided that the other contracting party will simultaneously fulfill the counter performance for which he is responsible. Example: A sold B a car for 6,000 euros. If A and B have not otherwise agreed, money and vehicle must change hands simultaneously. In case B demands for the vehicle to be delivered without him paying or offering to pay the 6,000 euros simultaneously, A is entitled to refuse delivery of the car as long as B does not pay or offer to pay the 6,000 euros. The result of A’s opposing the plea of the unperformed contract is for B to be obliged to pay A the 6,000 euros, provided that A proceeds with simultaneous delivery of the car to B.

3. Difference between the Plea of the Unperformed Contract and the Right of Retention The plea of the unperformed contract resembles the plea of retention. Their main difference consists in this: The plea of the unperformed contract is opposed when the two complementary and in opposite direction running claims arise from a

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reciprocal contract, whereas the plea of retention is opposed even when the two claims simply arise from the same social relation. III. IMPOSSIBILITY OF PERFORMANCE In the case of reciprocal contracts there are special provisions regarding the impossibility of performance. This is so because, as was already mentioned, each party is at the same time debtor as to his own performance and creditor as to the performance of the other, i.e. the counter performance. In the Greek Civil Code the cases of impossibility of performance, both due to fault and regardless of fault, are specially regulated. If the impossibility of performance is due to fault, we distinguish between impossibility of performance due to the debtor’s fault and impossibility of performance due to the creditor’s fault. 1. Impossibility of Performance not Due to Fault If the impossibility of performance on behalf of one of the contracting parties is not due to fault, the other contracting party is also released from the obligation to counter perform. If the counter performance has already been furnished, it may be recovered in accordance with the provisions governing unjust enrichment (Art. 380, 1 CC). Example: A sold B a painting for 2,000 euros. Before delivery of the painting, a chance event, e.g. fire, destroyed it. A is released from his obligation to deliver the painting but B is also released from his obligation to pay the amount of 2,000 euros. In case B had paid in advance, he may recover pursuant to the provisions governing unjust enrichment.

Exceptionally, the creditor of an impossible performance is not released from his obligation to counter perform if he has laid claim on the surrogate, i.e. the benefits that the debtor has derived from the event causing the impossibility of performance (Art. 380, 2 CC). Example: If in the above example B claims from A the insurance proceeds collected by the latter from the insurance company with which the painting was insured, B is obliged to furnish his counter performance to A.

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Naturally, if the value of the surrogate is lesser than the value of the counter performance, there should be a corresponding reduction in the value of the counter performance due.3 2. Impossibility of Performance Due to Fault In the case of impossibility of performance due to fault we distinguish between impossibility of performance due to the debtor’s or the creditor’s fault. A. Impossibility of Performance Due to Debtor’s Fault If the impossibility of performance is due to the debtor’s fault, according to Article 382 of the Greek Civil Code, the creditor may at his discretion exercise one of the following alternative rights: a. The right to seek the mutual release of the parties from their respective obligations in accordance with the Article 380 of the Greek Civil Code. That is, since the performance of the debtor is impossible and can in no way be furnished, the creditor is entitled to consider that he is equally released from the obligation to furnish the counter performance he owes. Of course, if he has already implemented his counter performance, he is entitled to recover it by virtue of the provisions governing unjust enrichment. But if the creditor, instead of mutual release, demands the surrogate, then he is obliged to furnish his counter performance.4 b. The right to seek compensation from the debtor for the damage he has suffered5 as a result of the impossibility of performance. In this case, of course, he is obliged to furnish the counter performance he owes.6 3

See Michailidis – Nouaros, in ERMAK, Art. 380, No 31; Balis, op. cit., para. 82, p. 291; Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 380, No 1; the same, General Law of Obligations, op. cit., p. 470; Filios, op. cit., p. 411; Ap. Georgiadis, op. cit., p. 311; Ast. Georgiadis, op. cit., Vol. II, p. 117. The opposite view, i.e. that the creditor who lays a claim on the surrogate may not reduce his counter performance accordingly, is held by Zepos, op. cit., Vol. I, p. 541, footn. 1, and Litzeropoulos. op. cit., p. 278. 4 For the computation of the value of the counter performance in case the surrogate is of lesser value than the counter performance, see above footn. 3. 5 The compensation covers not only the positive damage but also the loss of profit that the creditor suffered. 6 Regarding the way the damage is computed, several theories have been advanced. See Michailidis – Nouaros, in ERMAK, Introduction to Arts. 380-387, No 18 et seq.; Balis, op. cit., para. 84, p. 297; Zepos, op. cit., Vol. I, p. 545; Litzeropoulos, op. cit., p. 283;

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c. The right to rescind the contract.7 Rescission entails the extinction of the obligations to perform generated by the contract and the parties are mutually obliged to restitute the performances that have been received on the basis of the provisions governing unjust enrichment (Art. 389, 2 CC). The creditor exercising the right of rescission may in addition petition from the court − and be granted − reasonable (reduced) compensation8 for the prejudice he may have suffered from the non performance of the contract (Art. 387, 1 CC). Example: A sold a painting to B for 2,000 euros. Prior to delivery, the painting got destroyed due to A’s fault. In this case B may, at his discretion, exercise one of the following three rights the law accords him: − seek mutual release, i.e. seek to be released from the obligation to pay the money he owes. If he has paid in advance, he may seek to recover by virtue of the provisions governing unjust enrichment. But if B demands the surrogate, e.g. the insurance proceeds, he is obliged to pay A the 2,000 euros (the buyer’s counter performance may be reduced if the surrogate is of lesser value); − seek compensation for the damage he sustained, in which case he is obliged to counter perform vis-à-vis A, i.e. pay the latter the 2,000 euros; − rescind the contract, in which case he is released from his obligation to counter perform vis-à-vis A. If B has paid in advance, he may seek to recover from A by virtue of the provisions governing unjust enrichment. In the case of rescission B may also seek reasonable (reduced) compensation.

B. Impossibility of Performance Due to Creditor’s Fault If the impossibility of performance is due to the creditor’s fault, according to the provision of Art. 381, 1 CC, the debtor is released, whereas the creditor is still liable for his counter performance. However, from the counter performance due is subtracted all that the debtor benefits or, through fault of his own, neglects to benefit from the release. Stathopoulos, in Georgiadis - Stathopoulos, Commentary on the Civil Code, Art. 382, No 10 et seq.; the same, General Law of Obligations, op. cit., p. 472 et seq.; Filios, op. cit., p. 414 et seq.; Ap. Georgiadis, op. cit., p. 315 et seq.; Ast. Georgiadis, op. cit., Vol. II, p. 123 et seq. Spyridakis, op. cit., p. 300 et seq. 7 The right of rescission is a ‘condition forming,’ or constitutive, right exercised by unilateral declaration of the beneficiary to the other contracting party (Art. 390 CC). 8 Reasonable compensation is the reduced compensation granted by the court to the creditor for the damage he may have suffered due to the non fulfillment of the performance he was entitled to as a result of the contract. See Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 297-298, No 71 and Art. 387, No 3.

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Example: A sold B a painting for 2,000 euros. Prior to delivery, B visited A’s gallery and accidentally spilled paint over the painting destined for him, thus destroyning it. A is released from the obligation to furnish B the painting but B continues to owe the 2,000 euros to A. If the painting was insured and, following the destruction, A received the proceeds of the insurance, B will subtract that sum from the sum of 2,000 euros he owes to A.

IV. DEFAULT BY ONE OF THE PARTIES If the debtor is in default, in addition to the performance due, he is obliged to compensate the creditor for the damage he suffered because of the delay (Art. 343, 1 CC).9 But in reciprocal contracts, if one of the parties is in default as regards the performance due, according to Art. 383, 1 of the Greek Civil Code, the other contracting party is entitled to set a reasonable time for the fulfillment of the performance, declaring at the same time that past that time he will reject it. In case the time period expires and no performance has taken place, according to Art. 383, 2 of the Greek Civil Code, the party who placed the other under notice, being no longer entitled to demand fulfillment of the performance, may at his discretion exercise one of the following alternative rights: 1. The right to seek compensation for non performance.10 2. The right to rescind the contract and also seek reasonable (reduced) compensation.11 Example: A sold B a vehicle for 8,000 euros. Through A’s fault the delivery of the car got delayed and A defaulted. B is entitled to demand delivery of the car and compensation. If he prefers, he may set a reasonable time for A to deliver him the car, declaring at the same time that, past that time, he will refuse performance. If the period set elapses and performance has not been fulfilled, B is entitled either to seek compensation for non performance of the sale contract, or to rescind the contract demanding additionally reasonable compensation.

Exceptionally, there is no need to set a reasonable time to the defaulting party as regards the performance due in the following cases: 9

See above Part Four, Ch. B, II, 2. For the way of computing the damage, several theories have been advanced. See above footn. 6. 11 See above footn. 8. 10

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if, judging from his whole attitude, it can be assessed that it would be pointless to set him a time limit;

Example: A, who must deliver to B the car he sold him, declared in no uncertain terms that he is not going to do so.

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if on account of the delay the other contracting party no longer has an interest in the fulfillment of the performance.

Example: A, who on December 15 owed to deliver to B heating oil for his house, defaulted. B, who needed the delivery to be done immediately, so that he could heat his house, purchased heating oil from another supplier and was no longer interested in A’s fulfillment of his contractual obligation.

V. IMPROPER FULFILLMENT OF THE PERFORMANCE In the case of reciprocal contracts there are no provisions in the law for improper or not duly fulfilled performance. There is, then, a vacuum (lacuna) in the law which will be filled by analogy of law,12 i.e. application by analogy of the provisions governing the reciprocal contracts regarding impossibility of performance and default of one of the parties. VI. UNFORESEEABLE CHANGE OF CIRCUMSTANCES 1. General The inviolability of contracts (pacta sunt servanda) is a fundamental principle of the law of obligations.13 However, in exceptional cases this principle cannot be adhered to. This happens when the circumstances on which the parties based the conclusion of a reciprocal agreement changed later on due to exceptional and unforeseeable reasons so that the fulfillment of the performance by the debtor – taking also into consideration the counter performance – now became exceedingly onerous. The Greek Civil Code contains an express provision (Art. 388) according to which it is possible for the contract to be dissolved or for the

12

See above Ch. B, III. See I. Sakketas, in ERMAK, Art. 388. No 1; Litzeropoulos, op. cit., p. 298; Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 388, No 1; the same, General Law of Obligations, op. cit., p. 502 et seq.; Ap. Georgiadis, op. cit., p. 339; Ast. Georgiadis, op. cit., Vol. II, p. 131. 13

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performance to be readjusted due to an unforeseeable change of circumstances.14 This pioneer clause of Article 388 constitutes a special expression of the principle of good faith governing the law of obligations, namely that of Article 288 CC.15 2. Conditions for the Application of Article 388 of the Greek Civil Code For Article 388 of the Greek Civil Code to apply, the following conditions need to concur: A. The contract must be a reciprocal one. B. A change in circumstances must have taken place, i.e. a change in those circumstances on which, taking into consideration good faith and business usage, the parties based the conclusion of their contract. C. The change in circumstances must have occurred after the conclusion of the contract. D. The change in circumstances must be due to causes that are exceptional and unforeseen. E. The performance of the indebted party, especially considering the counter performance, must have become exceedingly onerous. 3. Legal Consequences of the Application of Article 388 of the Greek Civil Code If the conditions for the application of Article 388 of the Greek Civil Code concur and the party for whom the fulfillment of the performance has become exceedingly burdensome files a petition to this effect before the

14

According to the prevailing view, Article 388 contains a rule of mandatory law. (See A. Gazis, “Waiver of the Claim of Article 388 CC,” in NoB 23 (1975), 705 et seq.; Papantoniou, Good Faith, op. cit., p. 180 et seq.; K. Xypolias, “The Mandatory Character of Article 388 CC,” in NoB (1984), 1684 et seq.; Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 388, No 5; Filios, op. cit., p. 438; Ast. Georgiadis, op. cit., Vol. II, p. 138). A different view holds that Article 388 contains a rule of non-mandatory law (See Sakketas, in ERMAK, Art. 388, No 53; Zepos, op. cit., Vol. I, p. 567). 15 See Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 388, No 2; the same, General Law of Obligations, op. cit., p. 504; Filios, op. cit., p. 437; Ap. Georgiadis, op. cit., p. 341; Ast. Georgiadis, op. cit., Vol. II, p. 138.

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court,16 the latter may, at its discretion, order the adjustment of the one performance to the appropriate measure or the dissolution of the contract (totally or partially, as to its still unfulfilled part). In case the court rules in favor of the dissolution of the contract, the reciprocal obligations to perform stemming from the agreement are extinguished and the parties are mutually obliged to return the performances received in accordance with the provisions governing unjust enrichment. Example: A, a car dealer, sold B a car to be imported from abroad at the price of 10,000 euros. Before the car was brought into the country, the import tax tripled. Thus, A would not only lose any profit he would have otherwise made from the sale of the vehicle but also suffer positive damage. Consequently, A asks B to pay an additional sum of money. If B refuses to do so, A may petition the court to readjust the sale price of the car or dissolve the sale contract altogether.

16

The right of the contracting party is exercised before the courts (e.g. by filing a lawsuit). For the adjustment of the performance or the dissolution of the contract a court decision is required.

PART FIVE REINFORCEMENT OF THE OBLIGATION CHAPTER A GENERAL To reinforce the obligation means to provide the creditor with various means securing the satisfaction of his claim. The obligation is reinforced either by real securities (rights in rem) or by personal securities (rights in personam). Real securities are the pledge and the mortgage.1 The pledge (which is constituted on movables) and the mortgage (which is constituted on immovables) provide the creditor with security in case his claim – monetary or that can be assessed in monetary terms – against the debtor was not satisfied when the performance fell due. This security consists in the creditor’s preferential satisfaction2 from the proceeds3 of the auction sale of the pledged movable or the mortgaged immovable (Arts. 1209 et seq., and 1257 et seq. CC). Personal security is the guarantee (Art. 847 et seq. CC). Guarantee is the contract by which one of the parties, the guarantor, assumes the responsibility vis-à-vis the other party, the creditor, that the performance owed to the latter by the ‘principal debtor’ will be fulfilled.4

1

See below Property Law, Part Five. Privileged satisfaction of the creditor means that the claim of the creditor holding the security is satisfied before the claims of the other creditors. 3 Auction proceeds are the proceeds from the sale of a thing (movable or immovable) in a public auction. 4 See below Part Eight, Ch. B, XII. 2

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The obligation, however, may also be reinforced by way of earnest (arrha) and penalty clause (stipulatio poenae). Earnest and penalty clause are accessory contracts to another principal contract and aim at reinforcing the position of the creditor of the principal contract.

CHAPTER B EARNEST Earnest (or earnest contract) is the accessory contract1 where one of the parties gives the other an object (also called earnest), usually a sum of money, with the following understanding: ∗

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If the principal contract is not implemented through fault of the party giving the earnest, the holder of the earnest keeps it without having to prove that he suffered prejudice (Art. 403, 1 CC). If the principal contract is not implemented through fault of the holder of the earnest, the latter needs to return it doubled (Art. 403, 1 CC).

Finally, it needs to be noted that liability for further compensation by the party responsible for the non implementation of the contract is not excluded, assuming of course that the person seeking such compensation can prove the damage (Art. 403, 2 CC). Example: A leased an apartment of his to B with the agreement that the premises would be delivered (to B) fifteen days after the conclusion of the rental agreement. As was indicated in the previous chapter, in the Roman law the word for earnest was arrha. But neither the Latin word ‘arrha’ nor the Ancient Greek word ‘arrabon’ (αρραβών) are the original terms; both are derived from the Hebrew ‘erabon’ (‫ )ערבון‬meaning pledge, guarantee. See G. Petropoulos, History and Introduction to Roman Law, 2nd ed., 1963, p. 834. See also R. Alcalay, Complete Hebrew-English Dictionary (Translator’s note). 1 Because the earnest agreement is an accessory contract, it presupposes a valid principal contract. If the principal contract is null and void, the earnest contract is also null and void. Moreover, the accessory character of the earnest agreement dictates that, if the principal contract is subject to constitutive form, the same form needs to be observed for the earnest agreement (e.g. the earnest contract stipulating that something is given as earnest for the purchase of real estate property is subject to the same notarial deed form as the principal contract of the sale of an immovable). ∗

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To secure the lease contract, which is the principal contract, B gave A 350 euros as earnest. If after the elapse of fifteen days the lease contract is not implemented through fault of the lessee, B loses the 350 euros and A keeps the earnest money he was holding. If, however, after the elapse of fifteen days the lease contract is not implemented through fault of the lessor, A is obliged to return to B double the amount of the earnest money, i.e. 700 euros.

CHAPTER C PENALTY CLAUSE Penalty clause (stipulatio poenae) is the accessory agreement1 whereby one of the parties promises the other to give him an object, usually a sum of money, if the former does not fulfill or does not properly fulfill the performance he owes. The term ‘penalty clause’ signifies both the accessory agreement regarding such promise and the fulfillment of the relevant performance itself. If a penalty clause has been agreed for the case of non fulfillment of the performance, the creditor who claims the penalty may not also seek fulfillment of the principal performance (Art. 406, 1 CC). If a penalty clause has been agreed for the case of non proper fulfillment, and especially delayed fulfillment of the principal performance, in addition to the penalty, the creditor is also entitled to demand the fulfillment of the performance (Art. 407, 1 CC). At this point it needs to be noted that, whether the penalty clause is agreed for the case of non fulfillment or non proper fulfillment of the principal performance, the penalty is due even if the creditor has not suffered any prejudice (Art. 405, 2 CC). In case the creditor also proves further damage not covered by the penalty, in addition to the penalty he is ∗

1

Because the penalty clause agreement, just like the earnest agreement, is an accessory contract, it presupposes a valid principal contract. If the principal contract is null and void, the penalty clause contract is also null and void; and, as was mentioned apropos of the earnest contract, if for the principal contract constitutive form is required, the penalty clause agreement must be vested the same form. Although this holds true as far as the Greek language is concerned, in English only the clause contained in an agreement specifying a penalty for its violation is referred to as ‘penalty clause;’ the sum to be paid in case of non fulfillment or not proper fulfillment of the relevant performance is simply called ‘penalty’ (Translator’s note). ∗

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entitled to receive further compensation for such damage (Arts. 406, 2 and 407, 2 CC). Examples: − A sells B a television set to be delivered on September 10 and agrees with him that, if the TV set is not delivered on that date, A will pay B the amount of 800 euros (penalty clause agreed for the case of non fulfillment of the principal performance). If indeed the TV set is not delivered on September 10, A must pay B the penalty of 800 euros. In this case, since B received the 800 euros, he no longer has the right to demand delivery of the TV set. In the event B proves that, from the non fulfillment of the principal performance, he suffered further damage, he is entitled to demand additional compensation from A. − Contractor A sells B an apartment which will be ready for delivery on October 15. A and B further agree that, if the apartment is not ready by that date, A will pay B 50 euros for each day delivery is delayed (penalty clause agreed for the case of non proper fulfillment of the principal performance). If A indeed does not deliver the apartment on October 15, he is liable to pay B 50 euros per day for each day delivery is delayed, while B, naturally, reserves the right to demand delivery of the apartment. In the event B proves that, from the delay in delivery of the apartment he suffered further damage, he may demand additional compensation from A.

Finally, it should be noted that, if the penalty agreed is excessive (disproportionately high), the court may reduce it to the appropriate measure at the debtor’s request (Art. 409 CC).

PART SIX TRANSFER OF THE OBLIGATION CHAPTER A GENERAL An obligation may be transferred by way of general or special succession. General succession occurs when the estate as a whole is being transferred through a single act. The succession is general in the case of hereditary succession.1 Special succession occurs when one or more assets are being transferred each by a separate act. The special succession may be active or passive. The special succession is active when it is the creditor’s claim that is being transferred. This transfer is effected by way of assignment of the claim to another party. The special succession is passive when it is the debtor’s obligation that is being transferred. This transfer is effected by way of assumption of debt. The following chapters will deal with both of these contracts: the contract of assignment of claim and the contract of assumption of debt.

1

See below Succession Law, Introduction, III.

CHAPTER B ASSIGNMENT OF CLAIM I. THE CONCEPT AND CONDITIONS FOR ASSIGNMENT Assignment of a claim is the contract through which the creditor (assignor) transfers to a third party (the assignee) the claim he has against the debtor. The conditions for valid assignment of a claim are: 1. Conclusion of the Assignment Contract The assignment contract is concluded between the assignor (the ‘old’ creditor) and the assignee (the ‘new’ creditor). The consent of the debtor is not required for the conclusion of this contract (Art. 455 CC). The assignment contract does not require any particular constitutive form. Consequently, it may be concluded even verbally. Example: C owes A 600 euros. A (the assignor), who has debts vis-à-vis B, concludes a contract of assignment with B whereby he transfers to him the 600 euros claim he has against debtor C. The consent of C is not required.

2. Assignable Claim In principle, all claims may be assigned. However, there also exist claims which are not assignable. The following claims are not assignable: A. The claims which are not subject to attachment (Art. 464 CC).1 Such are, for example, the claims for maintenance which stem from the law,2 the claims for wages, pensions, and insurance benefits. 1

See Art. 982 CCPr.

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B. The claims which, by reason of the nature of the performance, are closely bound up with the person of the creditor (Art. 465 CC). Example: A, who runs a school for foreign languages, hires B as an English teacher in his establishment. A cannot assign the claim for services he has against B (to teach the English language) to C who also runs a school for foreign languages because the personal factor is predominant in the performance of the task.

C. The claims that the creditor and the debtor have agreed to consider non assignable (Art. 466, 1 CC). 3. Notification Through the assignment contract the claim is transferred from the assignor to the assignee. However, for the debtor the assignment becomes effective only after he is notified in this regard,3 i.e. after the assignment was made known to him (Art. 460 CC). Either the assignor or the assignee may so notify the debtor. No special form is required for the notification. Even verbal notification brings about the legal effects of the assignment. Before notification, the debtor is obliged to make payment to the assignor. After notification, the debtor is released only if he makes payment to the assignee. If despite notification the debtor makes payment to the assignor (after the notification), he will be obliged to also make payment to the assignee. In this case, of course, he may recover what he paid to the assignor by virtue of the provisions governing unjust enrichment. Example: A (the assignor) transfers to B (the assignee) a claim for 600 euros he has against C (the debtor). Before notification, C is obliged to make payment to A. After notification, C is obliged to make payment to B. If after notification C makes payment to A, he will be obliged to make payment to B as well but in this 2

Such is, for example, the claim for maintenance one spouse has vis-à-vis the other in case there has been interruption of the conjugal life and the spouses no longer live together (Art. 1391 CC). The same holds in the case of alimony due on account of divorce (Art. 1442 CC), or in the case of reciprocal maintenance claims between ascendants and descendants (Art. 1485 et seq. CC). 3 The notification is a quasi juridical act meaning that its legal effects occur because it is so stipulated by law and not because of the will of the party who gave it (see Kritikos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 460, No. 14; Stathopoulos, op. cit., p. 598; Ap. Georgiadis, op. cit., p. 417; Ast. Georgiadis, op. cit., Vol. II, p. 201).

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case he may recover what he paid to A by virtue of the provisions governing unjust enrichment.

II. LEGAL EFFECTS OF THE ASSIGNMENT The conclusion of the assignment contract and the notification of the debtor in this regard signal the transfer of the claim from the assignor to the assignee4 and the interruption of every bond between assignor and debtor. The debtor now has vis-à-vis the assignee the same obligations he had vis-àvis the assignor (Art. 462 CC).5 The special succession which occurs with the assignment does not change the content of the claim transferred. The claim is transferred to the assignee with all the advantages and disadvantages it had before the transfer.6

4

The Greek Civil Code regulates by special provisions the responsibility of the assignor visà-vis the assignee regarding both the existence of the claim (veritas) and the solvency of the debtor (bonitas) (Arts. 467-469 CC). 5 Regarding the defenses the debtor may propound against the assignee, Art. 463, para. 1 of the Greek Civil Code stipulates that he may oppose all the pleas he had against the assignor prior to notification. 6 Along with the claim, are also transferred all the accessory rights to it, such as mortgages, pledges, and guarantees (Art. 458 CC). The same holds for the arrears of interest due (Art. 459 CC).

CHAPTER C ASSUMPTION OF DEBT I. THE CONCEPT Assumption of debt is the contract between the creditor and a third party (the ‘assumer’), without the consent of the original debtor, through which the third party assumes the debt of the former debtor. The assumption of debt may be either privative or cumulative. The question whether the assumption of debt is privative or cumulative is a matter of interpretation of the contract. However, if it does not follow from the contract what the parties willed, the assumption of debt is cumulative (Art. 477 CC). II. PRIVATIVE ASSUMPTION OF DEBT The assumption of debt is privative when the ‘assumer’ (new debtor) replaces the former debtor and the latter is released (Art. 471 CC). For the valid conclusion of such contract, no special form is required. The privative assumption of debt constitutes special succession; therefore, the debt is transferred to the new debtor (‘assumer’) the way it was vis-à-vis the original debtor at the time of the assumption,1 i.e. with the advantages and disadvantages it had at the time the contract for the assumption of debt was concluded.2

1

The ‘assumer’ (new debtor) may oppose pleas against the creditor from the original debtorcreditor relation (Art. 473, 1 CC). 2 Rights which are accessory to the claim vis-à-vis the former debtor continue to exist even after the assumption of debt (Art. 475, 1, 1 CC), such as, for example, the claim for interest. An exception to this rule is provided regarding the securities given in reinforcement of the

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Example: A owes B 1,500 euros. C, the ‘assumer’, who is A’s friend, agrees with B to assume A’s debt, thus releasing the latter of the obligation to pay back his debt to B.

III. CUMULATIVE ASSUMPTION OF DEBT 1. General The assumption of debt is cumulative when the ‘assumer’ undertakes the obligation to pay a debt which is not his own but the former debtor is not released. For the valid conclusion of a cumulative assumption of debt no special form is required. The cumulative assumption of debt does not constitute special succession. We simply have a new debtor who is liable for the obligation, alongside the former debtor. In this case the creditor has two debtors, each one liable for the whole of the debt. Consequently, cumulative assumption of debt gives rise to joint and several obligation (obligatio in solidum).3 Example: A owes B 600 euros and C (the ‘assumer’) agrees with B to undertake the obligation to pay the original debtor’s debt without the latter (A) being released from his obligation.

2. Case of Transfer of Patrimonium or Enterprise in Its Entirety A special case of cumulative assumption of debt with great practical significance is the transfer of a patrimonium or an enterprise as a whole.4 According to Article 479 of the Greek Civil Code, if a patrimonium5 or an enterprise6 has been contractually transferred in its entirety, the acquirer obligation (i.e. guarantees, pledges, or mortgages) which are maintained only if the guarantor or the owner of the pledged or mortgaged immovable consents (Art. 475, 1, 2 CC). 3 See above Part One, Ch. B, III, 2, A. 4 See G. Arhaniotakis, Transfer of Patrimonium or Enterprise, 1997. 5 In the general sense of the term, ‘patrimonium’ means the sum total of rights and obligations which are amenable to assessment (see, Balis, General Principles, op. cit., para. 182, p. 476 et seq; Kritikos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 479, No 11; Ast. Georgiadis, op. cit., Vol. II, p. 236). However, in the Article 479 of the Greek Civil Code the term ‘patrimonium’ means only the assets, i.e. what remains after the obligations have been met (see Kritikos, op. cit., Art. 479, No 11; Stathopoulos, op. cit., p. 647; Ap. Georgiadis, op. cit., p. 446; Ast. Georgiadis, op. cit., Vol. II, p. 236 et seq.). 6 Enterprise is the sum total of things, rights, and real situations (e.g. immovables, movables, claims, clientèle, good reputation, trade secrets) which have been organized by their bearer to an economic entity, either under the name of a natural person or under the title of a legal

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shall be liable towards the creditors of the transferor for the debts of the patrimonium or the enterprise up to the value of the assets of the property transferred. The liability of the transferor continues to exist. Consequently, in the case of transfer of a patrimonium or an enterprise, between the transferor and the ‘assumer’ a relation of passive joint and several obligation is formed. With regards to the debts of the patrimonium or the enterprise the liability of the former debtor (the transferor) is unlimited,7 whereas the liability of the new debtor (the acquirer) is limited to the amount of the assets transferred.

person (See Michailidis – Nouaros, op. cit., p. 324; Kritikos, op. cit., Art. 479, No 12; Stathopoulos, op. cit., p. 649; Ap. Georgiadis, op. cit., p. 447). 7 That is, the liability of the original debtor is not limited to the assets he will have control over after the transfer but extends to whatever assets he may have control over in the future.

PART SEVEN EXTINCTION OF THE OBLIGATION Extinction of the obligation is its coming to an end. The obligation naturally comes to an end with the fulfillment of the performance. But fulfillment of the performance, otherwise known as payment, is not the only way for an obligation to be extinguished. There are several other ways the most important of which are other performance in lieu of payment, deposit with a public body, set off, and release of debt. CHAPTER A PAYMENT I. THE CONCEPT Payment is the fulfillment of the obligation (Art. 416 CC). As was already mentioned, payment is the natural way of extinction of the obligation. II. CONDITIONS FOR VALID PAYMENT The conditions for valid payment1 are the following: 1

The question of the legal nature of payment is a disputed matter. It is more accurate to view payment as a material act, in which case for payment to bring about the extinction of the obligation it is not necessary for the conditions of valid conclusion of a juridical act to concur, such as capacity to conclude a juridical act, etc. (See Balis, Law of Obligations, op. cit., para. 114, p. 379 et seq.; Zepos, op. cit., Vol. I, p. 421; I. Karakatsanis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 416, No 5 et seq; Stathopoulos, op. cit., p. 387 et seq; Filios, op. cit., p. 110; Ap. Georgiadis, op. cit., p. 458).

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1. Payment by the Debtor In principle, the performance is fulfilled by the debtor. Exceptionally, payment may also be effected by third parties (Arts. 317-318 CC).2 Upon payment the debtor is entitled to a written release (receipt)3 and, if the debt is paid in full, he may claim the document that established the debt in the first place, e.g. the letter of exchange (Art. 424, 1 CC). 2. Payment to the Creditor In principle the payment of the debt must be made to the creditor (Art. 417, 1 CC). Exceptionally, however, it is possible for payment to be made to another: the person whom the creditor himself has authorized4 (e.g. who has power of attorney to collect), or the person appointed by a court decision (e.g. who is appointed by the court to be the tutor of a minor), or the person who is authorized by law to receive such payment (e.g. the parents of a minor exercising the parental care over him). 3. Appropriate Payment Payment must be that which is appropriate, i.e. the debtor must supply exactly what is owed. Example: A sells B a SONY color TV set. The payment is appropriate when the seller delivers to B the color TV set manufactured by SONY.

2

See above Part Four, Ch. A, I, 3. The expenses for the issuance of the written release are borne by the debtor, if it has not been differently agreed by the contracting parties (Art. 425 CC). 4 The bearer of a written release issued by the creditor shall be deemed authorized to collect unless there are circumstances, known to the paying debtor, from which the opposite is deduced (Art. 426 CC). 3

CHAPTER B OTHER PERFORMANCE IN LIEU OF PAYMENT I. CONCEPT AND CONDITIONS FOR FURNISHING OTHER PERFORMANCE IN LIEU OF PAYMENT Other performance in lieu of payment (datio in solutum) is the performance effected by the debtor following an agreement between creditor and debtor that such performance will bring about the extinction of the obligation (Art. 419 CC). The conditions for other performance in lieu of payment are the following: 1. Previously existing obligation. 2. Furnishing of a performance which is ‘other’ than the one originally owed. 3. Agreement to this effect between creditor and debtor which is concluded simultaneously with the furnishing of the ‘other’ (new) performance. Example: A owes B 1,500 euros. At the time of the fulfillment of the performance A proposes to B to give him a painting instead of the money, thus bringing about the extinction of the original obligation. If B agrees to it, the original obligation is indeed extinguished. If, however, B does not agree to it, the original obligation is not extinguished and A still owes B 1,500 euros.

II. CONSEQUENCES OF FURNINSHING OTHER PERFORMANCE IN LIEU OF PAYMENT When the debtor effects a performance to the creditor other than the one originally owed and the creditor accepts it, the legal consequences are the same as those of payment.

CHAPTER C DEPOSIT WITH A PUBLIC BODY I. CONCEPT AND CONDITIONS FOR DEPOSIT WITH A PUBLIC BODY In certain cases the debtor is entitled to proceed with deposit of the thing owed with a public body (i.e. a service empowered to receive such deposits), thus being released from his debt. For a contractual obligation to be extinguished by way of deposit with a public body the following conditions need to concur: 1. Legitimate Reason for Deposit Legitimate reasons for deposit are the following: A. Creditor’s default (Art. 427 CC).1 Example: A had to pay B 1,000 euros on May 15. However, when on said date A went to offer B the amount due, the latter refused to receive it. Thus, B is now in default.

B. Debtor’s impossibility to safely fulfill his obligation for reasons connected with the person of the creditor (Art. 434, 1 CC). Example: A had to pay B 1,000 euros on May 15. When on said date A went to B’s residence to pay his debt, he was informed that B had left on a trip abroad before quite some time and had not appointed any representative.

C. Debtor’s impossibility to safely fulfill his obligation on account of his reasonable uncertainty as to the person of the creditor (Art. 434, 1 CC).

1

Regarding creditor’s default, see above Part Four, Ch. B, IV.

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Example: A had to pay B 1,000 euros on May 15. When on said date A went to B’s residence to pay his debt, he found out that B had died and, on account of the fact that his will had been challenged, there was uncertainty as to who his heir was.

2. Thing Capable of Deposit Things capable of deposit are money (Art. 427 CC), negotiable instruments (e.g. letters of exchange, checks, shares), and movable ‘valuables,’ i.e. things of small volume and great value (jewelry, precious stones, etc.).2 If the thing owed is a movable thing not capable of deposit, e.g. a piece of machinery or a piece of furniture, the debtor, after notifying the creditor, may sell the thing in a public auction and then deposit the proceeds of the sale with a public body (Art. 428, 1 CC).3 3. Deposit with the Appropriate Authority The public deposit needs to be deposited with the competent Authority of the place where the performance is to be furnished (Art. 430, 1 CC). Competent Authority for public deposit is the Deposits and Loans Fund4 and all its local branches. Where no branches of the Deposits and Loans Fund exist, the deposits are deposited with the Deposits Department of the local Treasury Offices. The debtor is bound to notify the creditor about the deposit without delay due to his fault (Art. 430, 2 CC). The expenses incurred in the case of public deposit or sale in public auction of a thing not capable of deposit are borne by the creditor as long as the debtor has not withdrawn the thing deposited (Art. 435 CC). II. LEGAL EFFECTS OF PUBLIC DEPOSIT The legal effects of deposit with a public body are the following:

2

See Art. 2, PrD of Sept. 30, 1926/Jan. 3, 1927 “On Constituting and Returning Deposits and Consignments with the Deposits and Loans Fund.” 3 See above Part Five, Ch. A, footn. 3. 4 See LegD of March 21/Apr. 13, 1926 “On the Organization of the Deposits and Loans Fund,” as later modified.

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1. The obligation is extinguished as if payment by the debtor had been effected at the time of the deposit (Art. 431 CC). 2. The creditor acquires the right to claim from the competent Authority the thing deposited in his favor at any time (Art. 432, 1 CC).

CHAPTER D SET OFF I. CONCEPT AND TYPES OF SET OFF Set off (compensatio) is the extinction of two reciprocal claims between two parties, to the degree to which they overlap, effected by way of computation that takes both into account. Example: A owes B 1,000 euros from a loan and B owes A 600 euros from rent. B has the right to set off his claim against the claim of A with the following result: B’s claim against A is considered paid by 600 euros. Consequently, henceforth A’s debt towards B amounts to 400 euros.

There are two kinds of set off: voluntary or contractual and involuntary or unilateral. 1. Voluntary or Contractual Set off The voluntary or contractual set off is not regulated by the Greek Civil Code. It is agreed between the contracting parties by virtue of the freedom of contracts (Art. 361 CC). Consequently, the voluntary or contractual set off is possible even if the conditions for involuntary or unilateral set off laid down by the Greek Civil Code are not met. 2. Involuntary or Unilateral Set off Involuntary or unilateral set off is the set off provided for by the law (Art. 440 et seq. CC) and it is compulsorily imposed by the one party to the other by a unilateral declaration provided that certain conditions concur.

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II. CONDITIONS FOR INVOLUNTARY OR UNILATERAL SET OFF The conditions necessary for involuntary or unilateral set off are: 1. Reciprocal Claims Two claims are reciprocal when the debtor of the one is at the same time the creditor of the other. Example: A owes B 1,000 euros and B owes A 500 euros. A is towards B at once the debtor of 1,000 euros and the creditor of 500 euros. Respectively, B is towards A the debtor of 500 euros and the creditor of 1,000 euros.

2. Existing and Valid Claims The claims in question must exist and be valid. Consequently, there can be no set off if one of the claims is non existent or null and void. 3. Claims of the Same Kind The claims are of the same kind when the objects of their performances are of the same type, i.e. they have the same traits. Examples: − A owes B 1,000 euros and B owes A 500 euros. The two claims are of the same kind because both parties owe money. − A owes to deliver a TV set to B by reason of sale and B owes 800 euros to A from a loan contract he had concluded with him. In this case the two claims are not of the same kind.

4. Past Due Claims According to the provision of Article 440 of the Greek Civil Code, the two claims must be past due. However, it is accepted that it is sufficient for one of the claims to have fallen due, that of the party declaring the set off, without it being necessary for his own debt to have also fallen due. The reason for this is because he is free, if he so wishes, to furnish his performance even before the time at which it is due (Art. 324, 1 CC).1 Example: On June 15 A owes to pay B the amount of 1,000 euros for the washer he had bought from him (from B). On September 10 of the same year B owes to 1

See Litzeropoulos, op. cit., p. 421; Michailidis – Nouaros, op. cit., p. 271; Stathopoulos, op. cit., p. 547; Ast. Georgiadis, op. cit., Vol. II, p. 281.

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pay A 500 euros from a loan he had concluded with him. Beginning June 16 B has a past due claim against A. Thus, on July 10 B may declare a set off against A even though his own (B’s) debt, the one to be offset against his claim, is not yet past due.

5. Set off not to be Prohibited The set off is prohibited either when the parties have agreed to waive such right (Art. 450, 2 CC), or when it is prohibited by law. According to the law, there can be no offsetting against claims stemming from delict intentionally committed (Art. 450, 1 CC) or against claims not subject to attachment (Art. 451 CC).2 6. Declaration of Set off For the set off to be effected the interested party, i.e. the party who has a past due claim against the other, must invoke it by way of declaration to the other party (Art. 441, 1 CC).3 III. EFFECTS OF INVOLUNTARY OR UNILATERAL SET OFF The declaration of set off brings about the extinction of the reciprocal claims to the extent that they overlap as from the time they coexisted (Art. 441, 2 CC). Example: A owes B 1,000 euros and B owes A 800 euros. With the set off A’s claim will be fully extinguished whereas B’s claim will be extinguished by 800 euros, i.e. henceforth A will owe B only 200 euros.

2

Claims not subject to attachment are, for example, the claims for maintenance, wages, pensions, etc. (see above Part Six, Ch. B, I, 2, A). 3 The right of offsetting is a ‘condition forming’, or constitutive, right and may be exercised by a unilateral, non formal declaration of will of the party invoking the set off. Such declaration is addressed to the other party and may be exercised extra-judicially or judicially (see K. Polyzogopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 442, No 1 et seq.; Stathopoulos, op. cit., p. 549; Filios, op. cit., p. 133 et seq.; Ap. Georgiadis, op. cit., p. 500).

CHAPTER E RELEASE OF DEBT Release of debt is the contract concluded between creditor and debtor to the effect that the creditor waives his claim against the debtor. The legal consequence of such a contract is that the obligation gets extinguished (Art. 454 CC). Example: A owes B 500 euros from a loan. With a subsequent agreement between A and B the latter waives his claim against A because, for example, he wants to forgive the debt.

PART EIGHT REGULATION OF IMPORTANT CONTRACTS CHAPTER A GENERAL As was already mentioned, one of the fundamental distinctions of contracts is in regulated (or nominate) contracts and non-regulated (or innominate) ones. More specifically: Regulated or nominate contracts are the contracts which are regulated either by the Greek Civil Code in the Special Law of Obligations section (e.g. sale, donation, lease of a thing), or by special laws (e.g. leasing, timesharing). Non-regulated or innominate are the contracts which are not regulated either by the Greek Civil Code or by special laws, e.g. the contract of franchising. In the following chapters we will deal with the most important contracts that are regulated by the Civil Code, the most popular in the realm of modern transactions contracts that are regulated by special laws, and, finally, following a presentation of general remarks regarding the innominate contracts, we will deal with the contract of franchising which we consider one of the most widespread innominate contracts of our times.

CHAPTER B THE MAIN CONTRACTS REGULATED BY THE CIVIL CODE Due to the exceedingly important role that the contracts regulated by the Civil Code play in the world of modern transactions, it was deemed necessary to devote a summary discussion to the most important of them. I. DONATION 1. The Concept and Features of Donation A. The Concept Donation (donatio) is the contract whereby the one contracting party, the donor, assumes the obligation to give to the other contracting party, the donee, a property item out of liberality. Example: A promises to give B a TV set without any quid pro quo and B accepts the offer.

B. Features Donation is a contract because for its conclusion the donee’s acceptance is required. It is a unilaterally obliging contract because it generates obligations only for the donor. It is also a gratuitous contract because there is no agreement for a quid pro quo. 2. Conclusion of the Donation Contract Donation is a contract subject to formal requirements because for its conclusion a notarial document is needed. Exceptionally, the donation of a movable thing for which no notarial document was executed becomes valid once the donor delivers the thing to the donee (Art. 498, 2 CC).

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3. Obligations of the Donor According to Article 496 of the Greek Civil Code the donor is bound to furnish to the donee an object of patrimonial value without any counterpart (quid pro quo). The donor, however, is entitled to refuse the fulfillment of the donation if, in view of his other debts, such fulfillment would endanger his own maintenance or the maintenance he owes to third parties by virtue of the law (Art. 501 CC). 4. Revocation of the Donation The donor is entitled to revoke the donation for certain serious reasons (Arts. 505 et seq. CC) such as, for example, if the donee through grave fault of his proved ungrateful vis-à-vis the donor or his spouse or a close relative of the donor’s, especially if he has violated his obligation to provide maintenance to the donor. The right of revocation of the donation may not be waived in advance. Finally, it should be noted that revocation is precluded if the donation was made out of special moral duty or for reasons of propriety. II. SALE 1. The Concept and Features of Sale A. The Concept Sale is the contract whereby one of the contracting parties, the seller (venditor), undertakes the obligation to transfer the ownership of a thing or right and to deliver the thing to the other contracting party, the buyer (emptor), who assumes the obligation to pay the agreed price (pretium).1 B. Features Any thing, movable or immovable, and any right (e.g. the right to intellectual property, the right to a patent) may be the object of sale. 1

Many important matters regarding the sale of goods are regulated by L. 2251/1994 ‘On Consumer Protection.’ See E. Alexandridou, The Law of Consumer’s Protection: Greek and Community Law, 1996; K. Delouka – Igglesi, The Consumer’s Law: Greek and Community Law, 1998; I. Karakostas, The Protection of the Consumer – Law 2251/1994, 2002; Ap. Georgiadis, Law of Obligations, Special Part, Vol. I, 2004, p. 123 et seq.

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The price to be paid must consist in money. If it has been agreed that a thing other than money will be furnished, it is no longer a contract of sale but of exchange.2 Example: A agrees with B to transfer to him the ownership of his apartment and to deliver the apartment to him for 50,000 euros.

Sale is a reciprocal contract because it generates rights and duties for both contracting parties. Moreover, it is an onerous contract because a quid pro quo is agreed. 2. Conclusion of the Sale Contract The contract of sale is not subject to any particular form. Only exceptionally is it subject to form in the special cases provided for by the law. Such is, for example, the case of sale of an immovable. 3. Obligations of the Parties The contract of sale generates a number of obligations for the contracting parties. Specifically: A. Obligations of the Seller a. Principal obligations The seller has the following two principal obligations: aa. To transfer the ownership of the thing or right sold free of defects in title. Defect in title is every right of a third party over the sold item, e.g. pledge, mortgage (Art. 514 CC).3 bb. To deliver the thing sold which at the time of delivery must have the conceded qualities4 and be free of material defects (Art. 534 CC). ∗

2

See below Ch. B, III. The term used for defect in title in the text of the Greek original (the same as in the Greek Civil Code) is ‘legal defect’ (Translator’s note). 3 Pledge and mortgage are rights in rem (the pledge concerns a movable thing and the mortgage an immovable) granting the owner the privilege of preferential satisfaction of his claim from the value of the encumbered thing (Arts. 1209 et seq. and 1257 et seq. CC). See below Property Law, Part Five. 4 L. 3043/2002 replaced the earlier term ‘agreed qualities’ by the term ‘conceded qualities’ on the grounds that the new term was considered more accurate (see Introductory Report of L. 3043/2002, in Critical Review of Legal Theory and Praxis, 2001/1, p. 302 et seq.). ∗

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Conceded qualities are the qualities specifically agreed between the seller and the buyer for the thing to have. Example: A, a building contractor, sold an apartment to B and agreed with him that the apartment would have exceptionally good insulation.

Material defect is every imperfection regarding the constitution or condition of the thing which diminishes its value or usefulness. Examples: - A sells B a car with brakes that are not working. - A sells B a number of books with defective print.

b. Collateral obligations In addition to the principal obligations, the seller has certain collateral obligations, some of which are stipulated by law, others provided for in the agreement of the parties, and yet others derived from the principle of the fulfillment of obligations in good faith. Obligations stemming from the law are, for example, the seller’s obligation to inform the buyer of the legal relations of the thing or to deliver to him the pertinent documents he has in his possession which prove the right over the thing in question. Obligations stemming from good faith are obligations such as, for example, to safeguard the thing sold, or to properly package it, or the obligation to provide instructions for its use, or the obligation for repair and maintenance of the thing during a certain time. B. Obligations of the Buyer a. Principal obligations The principal obligation of the buyer is to pay the agreed price. b. Collateral obligations The buyer, the same as the seller, also has various collateral obligations which are either stipulated by law5 or provided for in the parties’ agreement or stem from the principle of the fulfillment of obligations in good faith. 5

It is doubtful whether the buyer has the obligation to receive the thing. According to the view considered more accurate, he does not have the obligation to receive the thing (see Gazis, in ERMAK, Art. 513, No 111 et seq.; P. Filios, Law of Obligations, Special Part, Vol. I/1, 5th ed., 2002, p. 22; Kornilakis, Abridged Special Law of Obligations, 2000, p. 85 et seq.). For the opposite view (i.e. that the buyer is obliged to receive the thing sold), see Zepos, Law

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Obligations provided for by the law are, for example, the obligation to pay the expenses related to receiving the thing sold or to dispatching it to a place other than the place of performance. Obligations stemming from the principle of good faith are the timely notification of the seller regarding eventual defects, the obligation to safeguard and return the defective thing to the seller, etc. 4. Non-fulfillment of the Obligations of the Parties A. Non-fulfillment of the Obligations of the Seller a. Liability for defect in title aa. The content of the liability The seller’s liability for defect in title is the liability for unperformed contract. This is so because transfer of ownership of the thing or right which is sold with defect in title is in violation of the principal obligations of the seller. According to Article 516 of the Greek Civil Code, in case of defect in title, the buyer has the same rights as the creditor in reciprocal contracts, especially in the cases of debtor’s default or impossibility of performance due to debtor’s fault. bb. Release from liability The liability of the seller for defects in title existing at the time of the conclusion of the sale is precluded if the buyer was aware of them (Art. 515, 1 CC). However, in case of existing mortgage, prenotice of mortgage, attachments, or pledge, the seller is responsible even if the buyer had knowledge of them (Art. 515, 2 CC).

of Obligations, op. cit., Vol. II, para. 3 III, p. 67; K. Kafkas – D. Kafkas, Law of Obligations, Special Part, Vol. A, 5th ed., 1974, Art. 513, para. 3a, p. 73; Ch. Verveniotis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 516, No 53; Ap. Georgiadis, Law of Obligations, Special Part., Vol. I, 2004, p. 54 et seq.

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b. Liability for material defects or lack of conceded qualities aa. Introductory The liability of the seller for material defects and lack of conceded qualities regarding the thing sold is regulated in Articles 534-561 of the Greek Civil Code. Before referring to the above mentioned provisions of the Civil Code, it should be noted that L. 3043/2002 on the seller’s liability for material defects or lack of conceded qualities drastically modified the above Articles of the Civil Code in order for the Greek law to be streamlined with the substantive provisions of Directive EC/1999/44 of the European Parliament and of the Council regarding “certain aspects of the sale of consumer goods and associated guarantees”.6 bb. Conditions for the generation of liability The law stipulates by special provision (Art. 535 CC) that the obligation to furnish the thing sold free of material defects and with the proper conceded qualities is not considered fulfilled if “the thing does not correspond to the contractual agreement.” Subsequently, various criteria are provided to help establish the lack of correspondence between the thing furnished and the thing agreed upon in the sale contract. These criteria are noted indicatively and are the following: -

6

when the thing delivered does not correspond to the thing described by the buyer or to the sample or example the buyer had presented to the buyer; when the thing sold is not good for the purpose of the specific contract and in particular for the special use aimed at in accordance with the contract’s purpose; when the thing is not good for the use that things of the same kind are usually intended; when the thing does not correspond to the quality or effectiveness the buyer reasonably expects from things of the same kind, in view also of the public statements made by the seller, producer, or his representative, especially in the context of the relevant

L. 3043/2002 constitutes the first major modification of the rules of the Law of Obligations (see Introductory Report of L. 3043/2002, op. cit., p. 297 et seq., especially p. 298). See in this regard P. Papanikolaou – K. Roussos – K. Christodoulou – A. Karabatzos, The New Law of the Seller’s Liability, 2003.

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advertisements or commendations, unless the seller had no knowledge of such statements and was in no way obliged to know about them. In order for the buyer to prove the lack of correspondence between the thing agreed upon and the thing furnished suffices to show that one of the four above mentioned criteria is present.7 However, it is possible for the buyer to prove the lack of correspondence between the two even if none of the above criteria is present since their enumeration in Article 535 of the Greek Civil Code is only indicative. At this point it should be added that the cases of defective installation of the thing are equivalent to the cases where the thing furnished does not correspond with the sale contract (Art. 536 CC).8 cc. The content of liability In case of material defects or absence of conceded qualities at the time the risk passes to the buyer,9 the seller is liable regardless of fault. In case of liability of the seller for material defects or lack of conceded qualities, the buyer has the following rights exercised as alternatives (Art. 540 CC):10 -

7

to demand, at no cost to himself, the remedying of the defects or the replacement of the thing sold, unless this would be impossible or require disproportionate expenses; to reduce the purchase price; to rescind the contract unless the material defect is minor.

See Introductory Report of L. 3043/2002, op. cit., p. 303; Filios, op. cit., p. 41 et seq.; Ap. Georgiadis, op. cit., p. 87; 8 See Papanikolaou et al., op. cit., p. 339 et seq. 9 The risk passes to the buyer of the thing sold at the time of delivery, if the thing is movable (Art. 522, 1 CC), and, in the case of immovables, either at the time of delivery or of transcription, if the latter preceded the former (Art. 522, 2 CC). 10 The term ‘as alternatives’ means that the buyer may exercise any of these rights he chooses without there being a hierarchical order determining that one has priority over the other (see Filios, op. cit., p. 55; I. Spyridakis, Manual of Civil Law, Special Law of Obligations, 2nd ed., 2004, p. 29; Ap. Georgiadis, op. cit., p. 113).

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At this point the following should be added: According to Article 543 of the Greek Civil Code, the buyer has the option, instead of the rights granted to him by Article 540, to ask for compensation by reason of non performance of the contract. The same Article (543 CC) grants the buyer, cumulatively with the other rights, the right of compensation for damages not otherwise covered, e.g. the damage he suffered from the delay.11 If the buyer accepted the thing sold without reservations and was aware of the defects or the lack of conceded qualities, he is deemed to have accepted it (Art. 545 CC). The rights of the buyer on account of material defects or lack of conceded qualities are subject to a five year prescription for immovables and a two year prescription for movables (Art. 554 CC). dd. Release from liability The only case the seller is not liable for material defects or lack of conceded qualities is when the buyer at the time of the conclusion of the contract knew that the thing sold does not correspond to the contract or when this is due to material provided by the buyer himself (Art. 537, 1 CC).12 ee. Guarantee for the thing sold Article 559 of the Greek Civil Code13 refers to the guarantee for the thing sold provided by the seller or a third party and reads as follows: “If the seller or a third party provides a guarantee14 for the thing sold, the buyer has against the guarantor all the rights stemming from the declaration of the guarantee according to the terms contained in it and the 11

The liability for compensation is objective, i.e. independent of fault, in the case of conceded qualities (Art. 543, 1 CC), whereas it is subjective, i.e. it requires fault, in the case of material defects (Art. 543, 2 CC). See Introductory Report L. 3043/2002, op. cit., p. 305 et seq.; Filios, op. cit., p. 55 et seq.; Ap. Georgiadis, op. cit., p. 111 et seq.). 12 A presumption is established by special provision of the law that the material defects or lack of conceded qualities discovered within six months from delivery of the thing sold was present at the time of delivery, unless this is incompatible with the nature of the thing sold or with the nature of the material defect or the lack of conceded qualities (Art. 537, 2 CC). 13 This provision was added by L. 3043/2002. 14 Regarding the guarantee given to the consumer, see Art. 3 of L. 3043/2002 which replaced paras. 3-5 of Art. 5 of L. 2251/1994; see Filios, op. cit., p. 59 et seq.; Papanikolaou et al., op. cit., p. 533 et seq.; Ap. Georgiadis, op. cit., p. 118 et seq.

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relevant advertisement, without at the same time losing any of the rights conferred to him by the law.” The term ‘guarantee’ in the above Article is not used in the same way the Greek Civil Code uses it in Article 847 et seq.15 The meaning of the term ‘guarantee’ in Article 559 is that the obligational liability of the seller is reinforced in the sense that it includes all that was declared in the guarantee or the relevant advertisement.16 In other words the ‘guarantee’ given to the buyer at the time of the conclusion of the sale and the statements made in the relevant advertisement generate legal binding. If the seller violates them, the buyer has the rights stemming from the terms of the guarantee in addition to the rights conferred to him by law.17 B. Non-fulfillment of the Obligations of the Buyer If the buyer violates his principal obligation, which is to pay the price, he is liable according to the general provisions of the law for nonperformance of a reciprocal contract.18 III. EXCHANGE Exchange is the contract whereby the one contracting party assumes the obligation to transfer to the other the ownership of a thing or right and to deliver the thing; on his part the other contracting party assumes the obligation to transfer to the first (as a quid pro quo) the ownership of another thing or right and to deliver it. In the exchange contract both performances regard a thing or a right. Example: A agrees with B to transfer to him the ownership of a TV set and deliver it to him and B agrees with A to transfer to him the ownership of a stereo unit (and deliver it to him) in exchange.

The exchange is a reciprocal and onerous contract not subject to any particular form. Form is observed only if required by law, e.g. for the exchange of an immovable. For the exchange, the law stipulates that provisions relating to the sale are also applicable mutatis mutandis to the exchange. Each of the 15

See below Part Eight, Ch. B, XII. See Introductory Report of L. 3043/2002, op. cit., p. 307. 17 See Introductory Report of L. 3043/2002, op. cit., p. 308. 18 See Kornilakis, op. cit., p. 98. 16

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contracting parties is considered as ‘seller’ regarding the performance he owes and as ‘buyer’ regarding the performance due to him. IV. LEASE OF A THING 1. The Concept and Features of the Lease of a Thing A. The Concept Contract of lease of a thing is the contract according to which the one contracting party (lessor) undertakes the obligation to yield to the other contracting party (lessee) the use of a thing (leased object) for as long as the lease contract lasts and pay the lessor the agreed rent. The object of such lease may be either a movable or an immovable. Example: A (lessor) leases an apartment of his to B (lessee) for one year and the rent agreed is 300 euros per month.

B. Features The lease of a thing is a reciprocal contract because it generates rights and obligations for both parties. It is also an onerous contract because it requires a counter performance. 2. Conclusion of the Lease of a Thing Contract The lease of a thing is a contract for the valid conclusion of which no particular form is required. If a written document is executed for its conclusion, it is good only for evidential purposes.19 3. Obligations of the Parties The obligations of the parties in a contract of lease of a thing are the following:

19

See above General Principles, Part Three, Ch. C, VII, 2, A, b. For special types of leases, see Ap. Georgiadis, op. cit., p. 397 et seq.

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A. Obligations of the Lessor a. Principal obligation The principal obligation of the lessor is to yield to the lessee the leased thing in a timely fashion. Additionally, the thing needs to be suitable for the agreed use and to remain suitable throughout the term of the lease. The leased thing must have the agreed qualities and be free of material defects20 or defects in title that would obstruct the agreed use in part or in whole.21 In the case of lease of a thing the meaning of defect in title is different from that in sale. In the lease of a thing it is not sufficient for a third party to have a right over the leased thing, as is the case in sale; it is further necessary for the agreed use of the leased thing to become impossible, in part or in whole, by reason of that right (Art. 583, 1 CC). Example: A leases an apartment to B which, however, is occupied by C who had leased the same premises earlier.

In case of defect in title, material defect, or lack of agreed qualities, the lessee has the following alternative rights (Art. 576 et seq. CC):22 -

he may demand reduction or non-payment of the rent; he may demand compensation by reason of the unperformed contract; he may proceed with removal of the defect or remedy the missing agreed qualities and ask to be reimbursed for the expenses; he may terminate23 the lease, i.e. unilaterally declare to the lessor that he intends to do so.

In case the lessee accepted the thing without reservation while being aware of the defect or the lack of agreed qualities, the lessor is not liable for the defect or the lack of agreed qualities (Art. 581 CC).

20

Regarding the concepts of ‘agreed qualities’ and ‘material defects,’ see above Ch. B, II, 3, A, a, bb, 21 See Arts. 576 and 583 et seq. CC. 22 According to the Greek Civil Code the lessor’s liability is the same for material defects, defects in title, and lack of agreed qualities. See Filios, op. cit., p. 155 et seq.; Ap. Georgiadis, op. cit., p. 347 et seq. 23 Termination is a ‘condition forming,’ or constitutive, right of the lessee exercised by way of a unilateral declaration that the lessee addresses to the lessor.

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b. Collateral obligations Aside from the principal obligations, the lessor also has collateral obligations, such as, for example, to pay for the encumbrances and taxes of the thing, to reimburse the lessee for expenses he incurred in connection with the leased thing, etc. B. Obligations of the Lessee a. Principal obligation The principal obligation of the lessee is to pay the agreed rent. b. Collateral obligations Aside from his principal obligation, the lessee also has several collateral obligations, such as, for example, to treat the leased thing with care and according to the terms of the lease agreement, to inform the lessor in a timely fashion of defects in the leased thing which surfaced during the term of the lease or of the rights third parties exercise over it without being entitled to do so, to return to the lessor the leased thing at the end of the term in the same condition it was given to him (naturally, without any liability on the part of the lessee for wear and tear or changes in the leased thing due to the use that was agreed upon). If the lessee does not fulfill his obligations, the lessor is entitled to terminate the lease contract and in addition demand compensation (Art. 594 et seq. CC). 4. Termination of the Lease A. Lease of a Thing for a Fixed Term The lease of a thing which was agreed for a fixed period of time expires when the agreed term ends without any further formality (Art. 608, 1 CC). B. Lease of a Thing for an Indefinite Period The lease of a thing which was agreed for an indefinite period ends with a termination notice given by either of the contracting parties (Art. 608, 2 CC),24 i.e. with a unilateral statement the one of the parties addresses to 24

Art. 609 of the Greek Civil Code decrees the minimum of the different time periods which need to elapse for the respective termination notices to take effect.

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the other letting the latter know of the declarant’s intent to terminate the lease. The effect of the termination is only for the future. V. EMPLOYMENT CONTRACT 1. The Concept and Features of the Employment Contract A. The Concept Employment contract, or contract for services, is the contract whereby one of the parties, the employee, undertakes to provide services to the other contracting party, the employer, and the latter assumes the obligation to pay the employee the agreed wages (Art. 648, 1 CC). Example: A hires B as an employee in his business for one year with a monthly salary of 800 euros.

B. Features The employment contract, which is a reciprocal and onerous contract, may involve either dependent work or independent services. Contract of dependent employment is the contract for services where the employee is obliged to conform to the instructions and orders given by the employer as regards his work and tolerate his control in carrying it out. In other words, the services provided are subject to the employer’s control while they are carried out. Contract of independent services is the contract whereby the employee retains his initiative and the freedom to determine by himself the conditions of his work without being subject to the employer’s control in carrying out his services.25 The provisions of the Greek Civil Code concerning the employment contract include all types of employment contracts. Specifically, for the regulation of the contract of dependent employment the provisions of labor law are applicable and those of the Civil Code apply only supplementally to cover any vacuum in the special labor legislation.

25

See A. Karakatsanis – S. Gardikas, Individual Labor Law, 5th ed., 1995, p. 124; Th. Koniaris, Labor Law in Hellas, 2002, p. 97 et seq. (in English).

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2. Conclusion of the Employment Contract The employment contract is an informal contract and no specific form is required for its valid conclusion. If a written document has been executed at the time of its conclusion, it only has evidential value.26 Written form is required (and is constitutive of the employment contract) only exceptionally with regard to certain kinds of contracts, such as those for public service. 3. Obligations of the Parties In the employment contract the obligations of the parties are the following: A. Obligations of the Employee a. Principal obligation The main obligation of the employee is to carry out his services in person (unless otherwise provided in the agreement or follows from the circumstances) and to do so diligently, being liable for the damage caused to the employer due to the employee’s fault – willful conduct or negligence (Art. 652, 1 CC). b. Collateral obligations Aside from his principal obligation, the employee also has collateral obligations stemming from the law, the contract, or the principle of good faith in the fulfillment of performance. One collateral obligation stemming from the law is, for example, the employee’s obligation to work, if need be, beyond the agreed or customary work schedule, provided that he is able to do so and that his refusal is not contrary to good faith. Naturally, for this additional work the employee has the right to receive additional compensation. One collateral obligation stemming from the principle of good faith is the employee’s obligation for loyalty. Loyalty aims at the protection of the employer’s interests and this is what the employee owes to his employer. One aspect of this loyalty is the confidentiality demanded of the employee regarding trade secrets, the need to abstain from competition with the employer, etc. 26

See above General Principles, Part Three, Ch. C, VII, 2, A. b.

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B. Obligations of the Employer a. Principal obligation According to Article 653 of the Greek Civil Code, the main obligation of the employer is to pay the employee his wages (agreed or customary). b. Collateral obligations The employer also has certain collateral obligations stemming from the law, the contract, or the principle of good faith regarding the fulfillment of performance. Collateral obligations for the employer stemming from the law are, for example, the maintenance of safety and health standards in the work place, the granting of days off, the issuance of certificates regarding the rendering of services, the provision of health care for the employee who has been hired by the employer as a live-in, etc. Collateral obligations for the employer stemming from the principle of good faith in the fulfillment of performance are, for example, the obligation to provide work to the employees, to treat them equally, etc. 4. Termination of the Employment Contract Regarding the termination of the employment contract we need to distinguish between employment contract for a fixed term and employment contract for an indefinite period. A. Employment Contract for a Fixed Term The employment contract for a fixed term is ipso jure terminated at the expiration of the term for which it has been concluded (Art. 669, 1 CC). Exceptionally, either party may terminate the employment contract on serious grounds, i.e. for an important reason (Art. 672 CC).27 The law does not specify what constitutes ‘important reason.’ However, it is being accepted that important reason constitute all the events which, under the specific actual circumstances, create such an unpleasant situation for the party invoking them that it is impossible to expect the party in question to remain in the contractual relationship.28 27

This is the case of the so-called ‘extraordinary termination’ (summary termination). See Koniaris, op. cit., p. 157. 28 See Karakatsanis – Gardikas, op. cit., p. 528.

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We mention indicatively the following examples constituting important reason for the employer: the fact that the employee has committed a criminal act or that he repeatedly misses work. Likewise, examples constituting important reason for the employee are: the employer’s offensive behavior or his omission to maintain the necessary standards for the safety and health of the employees. B. Employment Contract for an Indefinite Period According to the provision of Article 669, para. 2 of the Greek Civil Code, a contract of employment the term of which has not been fixed shall terminate upon termination notice on the part of either party. At this point it should be mentioned that the termination of the employment contract for dependent services which is for an indefinite period is regulated by special labor laws.29 Consequently, the provision of Article 669, para. 2 is applicable only in the case of employment contracts for independent services. C. Death of the Employee Due to its personal character, the employment contract is terminated upon the death of the employee regardless of whether its term was fixed or not (Art. 675 CC). The death of the employer brings about the termination of the contract for services only if the parties aimed mainly at the person of the employer. VI. CONTRACT FOR WORK 1. The Concept and Features of the Contract for Work Contract for work is the contract where the one contracting party (contractor) undertakes the obligation to carry out a work and the other party (master of work) is obliged to pay the agreed fee (Art. 681 CC). By work we mean the result of human activity which may and may not be material.

29

The law provides for two different types of termination, with and without notice. They differ as to the scope of their implementation, their terms, and consequences. See Karakatsanis – Gardikas, op. cit., p. 535 et seq.

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Examples: − A assigns to B the project of building a house on his (A’s) land for 100,000 euros. − A assigns to B the project of sculpting a bust.

The contract for work is a reciprocal and onerous contract. 2. Conclusion of the Contract for Work In principle the contract for work is a contract for the conclusion of which no particular form is required. Only exceptionally, according to special statutes, is a written document required for the valid conclusion of a contract for work such as, for example, in the case of the contract for carrying out public works. 3. Obligations of the Parties The contract for work generates the following obligations for the parties: A. Obligations of the Contractor a. Principal obligation The principal obligation of the contractor is to carry out the work he has undertaken in a timely fashion and to deliver it free of defects. For the liability of the contractor in case he defaults in his principal obligation, we need to distinguish between the following: -

-

30

If the contractor delays the commencement of the work, or if, without it being the fault of the master, he delays the performance of it, the master of work may rescind the contract30 and not have to wait for the expiration of the term set for delivery (Art. 686, 1 CC). If the work performed is defective, we need to distinguish between substantial and insubstantial defects: if the defects are insubstantial, the master of the work may demand that they be remedied or that the contractor’s remuneration be reduced (Art. 688 CC). If the defects are substantial and render the work useless or if the work lacks the agreed qualities, the master of work has one of the following three rights: he may demand that they be remedied,

See above Part Four, Ch. C, III, footn. 7.

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or reduce the contractor’s remuneration, or rescind the contract (Art. 689 CC). If the defects are due to the contractor’s fault, the master of work, instead of rescission or reduction of the contractor’s fee, has the right to claim damages for non-performance of the contract (Art. 690 CC).

b. Collateral obligations Aside from his principal obligation, the contractor also has collateral obligations, such as to use the material supplied to him by the master of work with care, to give account as regards the same, and to return any remaining material to the master of work (Art. 685, 1 CC). B. Obligations of the Master of Work a. Principal obligation The main obligation of the master of work is to pay the agreed fee. b. Collateral obligations The master’s collateral obligations are to supply the contractor with the material needed for the performance of the work and to accept and approve the completed work.31 4. Termination of the Contract for Work The completion and delivery of the work by the contractor and, respectively, the payment of the agreed fee by the master of work signals the termination of the contract for work.

31

Regarding the acceptance and approval of the work, there is divergence of opinions. We consider more accurate the view that, as it follows from Articles 692, 693, and 698 of the Greek Civil Code, the master of work is bound to accept and approve the work (thus Zepos, op. cit., Vol. II, p. 391; Kafkas K. – Kafkas D., op. cit., Vol. A, Arts. 681-682, para. 6a, p. 79 et seq.; A. Kardaras, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 681, No 42). The opposite view holds that the master of work is not bound to accept and approve the work (thus I. Deliyannis, in ERMAK, Art. 681, No 94 et seq.; I. Deliyannis – P. Kornilakis, Special Law of Obligations, Vol. II, 1992, p. 66 et seq.; P. Filios, Law of Obligations: Special Part, Vol. I/2, 4th ed., 1997, p. 137 et seq.).

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The Greek Civil Code also has provisions for special grounds for the termination of the contract for work, such as the master’s right to terminate the contract and the contractor’s death (Arts. 700-701 CC). 5. The Difference between Employment Contract and Contract for Work The contract for work differs from the employment contract in the following: in the contract for work the contracting parties aim at the result of the work, i.e. the production of the agreed work, whereas in the employment contract they aim at furnishing the performance, i.e. at the employee’s work as such. VII. BROKERAGE 1. The Concept of Brokerage Brokerage is the contract whereby the one contracting party (who roughly corresponds to the mandator) promises to pay a fee to the other contracting party, the broker, for the latter’s mediation or pointing out of an opportunity for the conclusion of a contract32 which is of interest to the ‘mandator’ (Art. 703 CC). Example: A promises to pay a certain fee to B if the latter points out to him a single family dwelling for sale in the Plaka area the size of 500 sq. m.

2. Conclusion of the Brokerage Contract Brokerage is an informal contract meaning that for its valid conclusion no special form needs to be observed, even if it aims at the conclusion of a contract subject to form, such as the sale of an immovable. 3. Obligations of the Parties Brokerage is a unilaterally obliging contract because it only generates obligations for one of the contracting parties, the ‘mandator’, whereas the other contracting party, the broker, is not obliged by the contract to offer his mediation. However, it is possible for brokerage to become a reciprocal contract if the broker assumes the obligation to mediate or point out an 32

Commercial brokerage is subject to special statutory regulation (see L. 308/1976 “On Brokers in Civil Contracts”).

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opportunity.33 The issue whether it is the one or the other will be judged in concreto based on the will of the parties or the purpose of the contract. VIII. MANDATE 1. The Concept and Features of Mandate A. The Concept Mandate is the contract in which the one contracting party (mandatary) undertakes the obligation to conduct, free of charge, the affair of the other contracting party (mandator). The delegated affair may be of any kind (Art. 713 CC). Examples: - A agrees with B to transport, free of charge, the furniture of the latter from his old office to the new one. - A agrees with B to find for him, free of charge, the bibliography that the latter needs for his research.

B. Features Mandate is a unilaterally obliging contract because the one party, the mandator, acquires rights from it and the other, the mandatary, acquires duties. Moreover, it is a gratuitous contract because it is carried out without a counter performance. 2. Conclusion of the Mandate Contract The mandate is an informal contract in the sense that for its valid conclusion no particular form needs to be observed.34

33

See I. Sakketas, in ERMAK, Art. 703, No. 1 et seq.; M. Karassis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 703, No. 3. 34 Regarding the question as to whether the form of a notarial document is required for the mandate aiming at the purchase of an immovable, according to Article 369 of the Greek Civil Code, different views are held. See G. Shinas, Elements of Civil Law, Vol. C, p. 47 et seq.; G. Tambakis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 369, No 16; M. Karassis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 713, No 5. We consider more accurate the view holding that no notarial document is required for the mandate aiming at the purchase of an immovable.

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3. Obligations of the Parties A. Obligations of the Mandatary The main obligation of the mandatary is to conduct the affair entrusted to him. Aside from this obligation, he is bound by law to provide information to the mandator regarding the affair entrusted to him, render account to the mandator upon termination of the mandate, and restore to the mandator everything that he has received for (or acquired from) the carrying out of the mandate (Arts. 718-719 CC). B. Obligations of the Mandator The mandator is not obliged to remunerate the mandatary. However, he is obliged to pay for the expenses the latter incurred in carrying out the mandate, to reimburse the mandatary for all that he spent in the course of the regular conducting of the affair, and to restitute any damage the mandatary suffered while carrying out the mandate, provided it was not due to his own fault (Arts. 721-723 CC). 4. Termination of the Mandate The mandate ends with the carrying out of the affair for which it was given. Other reasons leading to termination are the revocation of the mandate on the part of the mandator at any time (Art. 724 CC),35 the termination by the mandatary at any time (Art. 725, 1 CC), the death of either the mandator or the mandatary, the placement of either under judicial assistance, or the bankruptcy of either, unless otherwise agreed (Art. 726, 1 CC). IX. LOAN 1. The Concept and Features of the Loan A. The Concept Loan is the contract by which one of the contracting parties (lender) transfers to the other (borrower) the ownership of money or other fungible

35

The revocation is exercised the same way as the termination, i.e. by way of a unilateral declaration of the one of the contracting parties to the other.

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things and the latter undertakes the obligation to return other things of the same quantity and quality (Art. 806 CC).36 The object of the loan contract is money or other fungible things.37 Examples: − A transfers to B the ownership of 1,500 euros and B assumes the obligation to return 1,500 euros to A after a certain period of time. − A transfers to B the ownership of 1,000 kilos of top quality grain and B assumes the obligation to return to A 1,000 kilos of top quality grain after a certain period of time.

B. Features The loan contract may be with or without interest. The interest-free loan is a unilaterally obliging contract. By contrast, the loan with interest is a reciprocal contract because the borrower, aside from the return of the loan, is obliged to pay the agreed interest to the lender as a quid pro quo for the use of the money or fungibles loaned to him. Moreover, the loan is a delivery contract.38 2. Conclusion of the Loan Contract The loan contract is not subject to any particular form because no particular form is required for its valid conclusion. However, because loan is also a delivery contract, aside from the lender’s promise to give the loan, it is necessary for the money or other fungibles to be transferred and delivered to the borrower. X. LOAN FOR USE 1. The Concept and Features of the Loan for Use A. The Concept Loan for use is the contract whereby one of the parties (lender for use) yields to the other (borrower for use) the use of a thing without a reward and 36

Regarding bank loans, see S. Psychomanis, Bank Law, 5th ed., 2001, p. 274 et seq.; N. Rokas, Elements of Bank Law, 2002, p. 71 et seq. 37 According to Article 950 of the Greek Civil Code, fungible things are those movables which in the transactions are usually determined by number, measure, or weight, e.g. grain, fuel, fruit, marble etc. See below Property Law, Part One, Ch. A, II, 2. 38 It is also being argued that the loan contract is a solo consensu contract. See P. Filios, Law of Obligations: Special Part, Vol. I/2, 4th ed., 1997, p. 55 and the footnotes thereat.

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the borrower for use undertakes the obligation to return the thing after the expiration of the contract (Art. 810 CC). The object of the loan for use contract is the use of a thing, movable or immovable. Examples: − A allows B to use his apartment. − A allows B to use his car.

B. Features The loan for use is a unilaterally obliging, delivery, and gratuitous contract. 2. Conclusion of the Loan for Use Contract The loan for use is an informal contract because no particular form is required for its conclusion, even when the thing loaned for use is an immovable. However, because the loan for use is also a delivery contract, it is required for the thing loaned for use to be delivered to the borrower by the lender. 3. Obligations of the Parties A. Obligations of the Lender for Use The main obligation of the lender for use is to yield the use of the thing. The lender for use is liable for defects in the thing only if he has fraudulently concealed them (Art. 812 CC). B. Obligations of the Borrower for Use The borrower for use is not liable for counter performance vis-à-vis the lender. His only obligations are to pay the expenses usually required for the maintenance of the thing and to return it at the expiration of the contract. The borrower for use may not make use of the thing in a way different from the one agreed upon nor may he yield its use to another without the lender’s permission (815 CC).

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4. Expiration of the Contract of Loan for Use Regarding the expiration of the contract of loan for use we need to distinguish between contract for a fixed term and contract for an indefinite period of time. A. Loan for Use for a Fixed Term If a fixed term has been agreed, the loan for use terminates upon the expiration of that date. Exceptionally, the lender for use may demand the thing from the borrower for use prior to the expiration of the contract in the following cases (Art. 817 CC): -

if the borrower makes use of the thing in a way contrary to the terms of the contract; if by the use the borrower makes of the thing he has caused its deterioration; if the borrower has yielded the thing to a third party without permission to do so; if the lender has an urgent and previously unforeseeable need to use the thing himself.

B. Loan for Use for an Indefinite Period If the duration of the contract has not been fixed, the loan for use terminates as soon as the borrower made use of the thing or when the time period during which he could make use of it elapsed (Art. 816 CC). C. Death of the Borrower for Use A loan for use terminates ipso jure upon the death of the borrower (Art. 818 CC). 5. Difference between Loan for Use and Loan The loan for use differs from the loan in that, whereas in the loan for use the borrower has to return the very same thing loaned to him, in the loan he has to return other things of the same quantity and quality.

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6. Difference between Loan for Use and Lease of a Thing The loan for use differs from the lease of a thing in that, whereas in the loan for use contract the use of the thing is loaned without a quid pro quo, in the lease of a thing contract there is a quid pro quo. XI. DEPOSIT 1. The Concept and Features of Deposit A. The Concept Deposit is the contract whereby the one contracting party (depositary) takes delivery from the other party (depositor) of a movable thing for safekeeping with the obligation to return it upon demand (Art. 822 CC). A fee may be demanded only if this has been agreed or follows from the circumstances. Only movable things may be the object of deposit. Example: A deposits a jewelry box with B for safekeeping.

B. Features The contract of deposit is a unilaterally charging and a delivery contract; it is also a gratuitous contract. However, if a fee has been agreed upon, it becomes a reciprocal contract because rights and obligations are generated for both parties. 2. Conclusion of the Contract of Deposit The contract of deposit is an informal contract because no particular form is required for its valid conclusion. Nonetheless, because it is a delivery contract, it is necessary for the depositor to deliver to the depositary the thing given for safekeeping. 3. Obligations of the Parties A. Obligations of the Depositary The main obligation of the depositary is to safeguard the thing entrusted to him. The depositary is not entitled to use the thing without the

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depositor’s permission nor does he have the right to deposit it with a third party (Art. 824 CC). B. Obligations of the Depositor The depositor does not owe the depositary any remuneration unless otherwise agreed. However, he must reimburse him for expenses he incurred for the safekeeping of the thing deposited. Moreover, the depositor must compensate the depositary for damages the latter may have sustained on account of the deposit, unless the damage is not the result of the depositor’s fault (Art. 826 CC). 4. Termination of the Contract of Deposit Regarding the termination of the contract of deposit we need to distinguish between deposit for safekeeping for a fixed term and deposit for an indefinite period. A. Deposit for a Fixed Term If the term for the safekeeping is fixed, the contract ends at the expiration of the time period agreed. Exceptionally, the law allows the depositary to return the thing before the elapse of the time period agreed for the safekeeping, if unforeseeable events make it impossible for the depositary to further keep the thing safely without prejudice to himself (Art. 828, 1 CC). Also, upon the depositor’s demand, the depositary is bound to return the thing even if the time period set for the safekeeping has not elapsed (Art. 827 CC). B. Deposit for an Indefinite Period If in the contract of deposit no term has been fixed for the safekeeping, the depositary may return the thing at any time (Art. 828, 2 CC).

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XII. GUARANTEE 1. The Concept and Features of the Guarantee A. The Concept Guarantee is the contract whereby the one contracting party (guarantor) assumes the responsibility vis-à-vis the other (creditor) that the principal debtor’s payment will be effected (Art. 847 CC).39 Example: A (principal debtor) owes B (creditor) 100,000 euros by reason of purchase of an immovable from him. B, in order to secure his claim against A, concludes a contract of guarantee with C (guarantor) who undertakes the obligation to pay B the amount of 100,000 euros if A fails to make the payment.

B. Features The contract of guarantee is concluded between creditor and guarantor without it being necessary for the principal debtor to agree. The contract of guarantee is an accessory contract. Consequently, for it to be valid it is necessary for the principal obligation to be valid. If the principal obligation is null and void, the contract of guarantee is also null and void. If in the previous example the contract of sale of the immovable which was concluded between A and B is null and void because no notarial document was executed, the contract of guarantee between B and C is also null and void.

2. Conclusion of the Contract of Guarantee The contract of guarantee is a formal contract because for its valid conclusion a written document is necessary (either a private document or a notarial deed). The lack of a written document may be remedied if the guarantor has satisfied the debt (Art. 849 CC). 3. The Operation of the Contract of Guarantee When sued by the creditor to pay the debt, the guarantor may refuse payment until the creditor has carried out forcible execution40 on the 39

For the contract of guarantee and the letters of guarantee given by banks to the creditors of their clients, see Psychomanis, op. cit., pp. 73 et seq. and 333 et seq.; Rokas, op. cit., p. 97 et seq.

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property of the debtor and this has proved fruitless. It is the case of the plea of prior execution, a benefit granted to the guarantor for his own protection (Art. 855 CC) to force the creditor to attempt forcible execution against the property of the principal debtor first. If the guarantor is not entitled to oppose the plea of prior execution,41 e.g. because he has waived such right, the creditor may bring action against the guarantor without having first attempted to levy execution on the property of the principal debtor. 4. Differences between the Contract of Guarantee and Cumulative Assumption of Debt The contract of guarantee resembles the cumulative assumption of debt42 because in both cases a third party undertakes the obligation to pay the debtor’s debt. However, there are major differences between the two types of contracts the most important of which are the following: 1. The guarantor is liable vis-à-vis the creditor only secondarily and, if the creditor brings action against him, he has the right to oppose the plea of prior execution. By way of contrast, in the cumulative assumption of debt the third party has a primary obligation to make payment (joint and several obligation) and the creditor may take action against him directly, without having to turn against the principal debtor first. 2. For the valid conclusion of the contract of guarantee a written document is required, whereas the cumulative assumption of debt is a transaction subject to no formal requirement.

40

See above General Principles, Part Two, Ch. E, I, 5. The guarantor does not have the plea of prior execution in the cases enumerated in Article 857 of the Greek Civil Code. 42 See above Part Six, Ch. C, III. 41

CHAPTER C MAIN CONTRACTS IN CONTEMPORARY TRANSACTIONS REGULATED BY SPECIAL LAWS I. GENERAL Other than the contracts which are regulated in the Special Part of the Law of Obligations, new types of contracts have emerged in the world of contemporary transactions some of which are regulated by special laws. In what follows we will discuss briefly four such contracts which have known a remarkable popularity in Greece in recent years. They are the contracts of leasing, time-sharing, factoring, and forfaiting, the last being a contract very similar to factoring. II. THE LEASING CONTRACT1 1. General The contract of leasing first appeared in the USA in 1952 and today it is widely used throughout the world. In Greece it was regulated by L. 1665/1986 and it is this same law which, after being modified,2 regulates the contract of leasing in this country to this day. In Greece the institution of leasing has recently known a rapid development which increases impressively year after year. 1

Regarding the leasing contract, see Ap. Georgiadis, New Types of Contracts in Contemporary Economy, 4th ed., 2000, p. 33 et seq.; P. Mazis, Leasing, 2nd ed., 1999; P. Malakos, Franchising-Leasing, 1991; P. Paparseniou, The Leasing Contract, 1994; G. Lazaridis, Contemporary Forms of Financing, 1997, p. 23 et seq.; Ap. Georgiadis, Law of Obligations, Special Part, op. cit., p. 492 et seq. 2 L. 1665/1986 was mainly modified by L. 2367/1995 but also by subsequent laws (L. 2520/1997, L. 2682/1999, and L. 3091/2002).

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2. The Concept and Features of Leasing A. The Concept Leasing is the contract whereby the one contracting party (lessor) undertakes the obligation to yield for a certain period of time to the other contracting party (lessee) the use of a thing (leased thing) to be used exclusively for the lessee’s professional purposes, while offering the latter the possibility of either purchasing the thing by a unilateral declaration to the lessor at the end of the term, or renewing the contract for a specific period of time.3 ∗

B. Features The characteristics of this contract, which is a reciprocal, onerous, and compound contract,4 are the following: a. Only a corporation which has been set up for the sole purpose of conducting such leasing business may be the lessor. b. For such leasing companies to be formed special permission from the Bank of Greece is required. Moreover, such leasing corporations are required to have a capital amounting to one half of the minimum capital required for setting up a banking corporation.5 These corporations, known as leasing corporations, are under the supervision and control of the Bank of Greece.6 c. Only an enterprise or a businessman may be the lessee.7 The law regulating the leasing contract in Greece has termed it ‘financial leasing contract’ (hrimatodotiki misthosi/ χρηµατοδοτική µίσθωση), possibly because it mainly regulates the simple version of leasing where the aspect of indirect financing (of the lessee) is prominent. This term has subsequently been used in several legal writings in the English language. However, the correct English term for this type of contract is simply ‘leasing’ (Translator’s note). 3 See Art. 1, para. 1 L. 1665/1986. 4 The leasing contract has the features of the following contracts: lease of a thing, mandate, assignment of a claim, and option contract (see Ap. Georgiadis, New Types of Contracts in Contemporary Economy, op. cit., p. 67 et seq.; Paparseniou, op. cit., p. 52). 5 Naturally, for setting up a leasing corporation it is necessary for all the other conditions required by law for the formation of any corporation to be met. See L. 2190/1920 on corporations, as later modified. 6 See Art. 2, para. 6, L. 1665/1986. 7 Any natural or legal person of private or public law operating a business may conclude a leasing contract. ∗

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d. The object of leasing is the yielding of the use of a movable8 or immovable,9 10 or both, provided that they are intended exclusively for the professional purposes of the lessee. e. The duration of the leasing contract is always fixed and the parties may not agree on a duration which is less than three years regarding movable things, five years regarding aircrafts, and ten years regarding immovables.11 In case a shorter duration is agreed, the minimum duration stipulated by law will apply. f. At the expiration of the leasing contract the lessee is entitled to either purchase the leased thing or renew the leasing contract for a fixed duration.12 3. Usefulness of the Leasing Contract The fact that the leasing contract has become so widely spread throughout the world is due to the many advantages it offers the enterprise or businessman concluding it. The most important of them are the following: A. It affords the businessman the possibility to upgrade and expand the equipment of his enterprise or business without having to lay out his own capital which is thus freed to be invested elsewhere. B. It offers the businessman tax benefits not only in the sense that the leasing contract as such is favorably treated by the tax laws, but also because the rent paid by the lessee falls in the category of ‘business expenses’ and, as such, can be deducted from his gross income. 8

By movables we also understand aircrafts, but ships and other sea vessels are excluded (Art. 1, para. 3 L. 1665/1986). 9 Article 11 of L. 2367/1995, which modified L. 1665/1986, extended this form of leasing to immovables as well (see Ap. Georgiadis, “The Leasing of Immovables,” in NoB 44 (1996), p. 744 et seq.; D. Agapitidou – Alogoskoufi / Ch. Dimitriou, Extending Leasing to Immovables, 1995). 10 The term ‘immovables’ includes agrarian lots, horizontal and vertical real estate properties with buildings erected on them, along with the percentage of land corresponding to each building computed on the basis of the ‘buildable’ space of the terrain (Art. 1, para. 3 L. 1665/1986, as modified by Art. 27, para. 2, L. 2682/1999). See Ap. Georgiadis, New Types of Contracts…, op. cit., p. 38 et seq. 11 See Art. 3, para. 1 L. 1665/1986. 12 It is the case of an option contract meaning that at the expiration of the leasing contract the lessee has the right to either buy the leased thing or renew the lease for a fixed period of time by a unilateral declaration of his (as regards the option contract, see Ap. Georgiadis, The Option Contract and the Right of Option, 1970).

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C. It helps the businessman avoid borrowing since the rent due may be paid from the income yielded by the operation of the business. 4. Conclusion of the Leasing Contract A. Form The contract of leasing is a formal transaction because for its valid conclusion it is necessary that it be drawn in writing (private document) and this form is constitutive.13 Specifically, in the case of immovables the document needs to be vested notarial form.14 In practice there are standardized forms for the contracts of leasing. They are prepared in advance, usually by the leasing corporation which also determines what the ‘general terms’ of the contract will be.15 Such terms are, for example, the lessee’s obligation to pay the rent, make good use of the leased thing, and insure the leased thing. The ‘special terms’ of the leasing contract are spelled out in the so called ‘annex’ which constitutes an inseparable part of the leasing contract. B. Publicity According to the law,16 the leasing contract is also subject to publicity. This is secured by the legal requirement to enter it in a special public register kept both at the Court of First Instance of the seat or domicile of the lessee and at the Athens Court of First Instance.17 Especially regarding immovables and aircrafts, a double system of publicity is thus established: on the one hand they need to be entered in the special public register kept at the Athens Court of First Instance and on the other they need to be recorded in the public books of recordation18 of the area where the leased immovable is located or, in the case of aircrafts, in the aircraft registry.

13

See Art. 4, para. 1 L. 1665/1986. See Art. 1, para. 3 in conjunction with Art. 4, para. 1 L. 1665/1986. 15 When standardized contract terms are used, Art. 2 of L. 2251/1994 for the protection of the consumers is applicable. 16 See Art. 4, para. 2 L. 1665/1986. 17 See Art. 5 LegD 1038/1949. 18 See Art. 1, para. 3 L. 1665/1986. As regards transcription, see Arts. 1192-1208 CC. 14

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5. The Operation of the Leasing Contract A. General Leasing is a trilateral contract.19 At this point it should be noted that we will here discuss only its most ordinary form, the ‘simple’ leasing (financial leasing).20 To make this type of contract better understood we cite the following example: Example: Businessman A, who needs certain goods (e.g. medical instruments, office equipment), goes to supplier P who sells such merchandise and negotiates with him the price and specifications. Subsequently, A addresses himself to the leasing company X which purchases for him the merchandise in question from supplier P and then leases them out to A through a leasing contract (to be noted that the corporation has previously directed P to deliver the merchandise directly to A).

B. The Relationship between the Parties a. Relationship between lessor and lessee As was already mentioned, the leasing contract differs from the simple contract of lease of a thing in the sense that it is a compound contract which also has the characteristics of other contracts.21 Consequently, there are particularities in the relation between lessor and lessee. More specifically: aa. The selection of the thing to be bought by the lessor, and subsequently become the object of the lease, is made by the future lessee. bb. The lessee is obliged to pay the agreed rent to the lessor at the time periods agreed upon, usually every three or six months.22 cc. During the entire duration of the contract, the lessee is obliged to maintain the thing leased suitable for the agreed use and bear all the relevant expenses. 19

See Georgiadis, New Types of Contracts…., op. cit., p. 26; Paparseniou, op. cit., p. 23 et seq. 20 Other types of leasing are the ‘operating leasing,’ the ‘lease – back leasing,’ and the ‘leveraged leasing.’ 21 See above Part Three, Ch. A, III, 6. 22 See Georgiadis, op. cit., p. 54.

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dd. The lessee is liable for chance damage, destruction, or loss of the thing leased. Consequently, in case of damage, the lessee is obliged to repair it at his expense and in case of destruction or loss to replace it with another of equal value without being released from his obligation to continue paying rent. ee. The lessee is obliged to insure the thing against the risk of chance destruction or deterioration. ff. The lessor assigns to the lessee the claims he has against the supplier from the sale contract. gg. Finally, what is characteristic of this type of leasing contract is that there is an agreement between the lessor and the lessee that, at the expiration of the leasing contract, the latter has the right to either purchase the thing leased or renew the leasing contract for a fixed period of time. b. Relationship between lessor and supplier The lessor-supplier relation is basically that of a sale contract. However, in this sale transaction two special terms are agreed upon: one, that the delivery of the purchased items will be made to the lessee, and two, that the leasing corporation assigns to the lessee all the claims it has against the supplier for non fulfillment or improper fulfillment of the performance. c. Relationship between lessee and supplier The lessee does not have a contractual relation with the supplier (seller). However, because, as was already mentioned, the leasing company has assigned to him the claims it has against the supplier, the lessee may demand from the supplier and even force him to fulfill his contractual obligations. 6. Termination of the Leasing Contract The ways for a leasing contract to be terminated are the following: A. Expiration of the time period for which the leasing contract was agreed, provided that the lessee did not exercise the right granted to him by the leasing contract to renew the lease. B. Purchase of the leased thing by the lessee, according to the right granted to him by the leasing contract at the time of conclusion of the transaction.

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C. Termination of the leasing contract23 on the part of the leasing company before the expiration of the contract, if the lessee does not fulfill his contractual obligations. D. Bankruptcy24 of the lessee – naturally, only if he is a merchant.25 III. THE TIME-SHARING CONTRACT26 1. General The institution of time-sharing first appeared in France in the beginning of the Sixties and in a short time it spread all over the world. The expansion of time-sharing contracts in the international tourist market was the reason why the Greek legislator was led to regulate this contract by law (L. 1652/1986)27 in order for the country to remain competitive in the area of tourism which is of primordial importance to its national economy. 2. The Concept and Features of Time-sharing A. The Concept Time-sharing contract is the contract whereby the one contracting party (lessor) undertakes the obligation to yield yearly to the other contracting party (lessee) the use of housing for tourist purposes along with the

23

Regarding the concept of termination of a contract, see above Part Eight, Ch. B, IV, 4. Bankruptcy is the condition into which a merchant lapses, following a court ruling, when he stops making payments on his commercial debts. See Arts. 525-707 of ComN and EmergL 635/1937 “On Certain Provisions of Bankruptcy Law.” 25 This is expressly stipulated by the law (Art. 4, para. 3 L. 1665/1986). 26 See Ap. Georgiadis, “Multi-ownership or Time-divided Ownership,” in Essays in Honor of K. Vavouskos, Vol. B, 1990, p. 41 et seq.; Ap. Georgiadis, Property Law, Vol. I, 1991, p. 680 et seq.; P. Paparseniou, Community Directives and Citizen’s Rights, 2002, p. 235 et seq.; Chr. Themeli, The Contract of Time-sharing, 2003; D. Stamatiadis, The Contract of Time-sharing, 2003; A. Efthymiatou – Poulakou, Time-sharing in Tourism, 2003; Ap. Georgiadis, Law of Obligations, Special Part, op. cit., p. 521 et seq. 27 L. 1652/1986 was modified and completed by PrD 182/1999 which streamlined the Greek law with the stipulations of Directive 94/47/EC of the European Parliament and of the Council of October 26, 1994 “On the protection of purchasers in the respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a time-share basis.” Subsequently, Arts. 2, 4, and 11 of PrD 182/1999 were modified by PrD 293/2001. 24

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therewith connected services for a fixed period of time, as per the contractual agreement, and the lessee undertakes the obligation to pay the agreed rent.28 Example: Hotel business X concludes a time-sharing contract with A and yields to him the use of an apartment from July 8 to July 18 every year for forty years in return for rent payable up front or in installments.

B. Features The features of the time-sharing contract, which is a reciprocal, onerous, continuous,29 and compound30 contract, are the following: a. The lessor is a hotel owner or a tourist enterprise. b. The object of the contract is on the one hand the yielding of the use of housing for tourist purposes and on the other hand the provision of the “therewith connected services.” More specifically: -

L. 1652/1986 determines what is to be understood by ‘housing for tourist purposes’: hotel units and generally tourist installations operating with a permit from the Greek Organization of Tourism (EOT) and having been placed under the above mentioned law by a decision of the Secretary General of the Greek Organization of Tourism.31 When the law talks about “therewith connected services” it means the services customarily provided for any housing for tourist purposes, i.e. electricity, water, sewer, air condition, cleaning of the room or the apartment by the staff, etc. ∗

-

c. According to an express stipulation of the law,32 the duration of the time-sharing contract is set for a period of time extending from three to sixty years. Consequently, the law determines the lowest and the upper limit of its possible duration. 28

See Art. 1, para. 1, subapara. 1 L. 1652/1986. It is the case of a continuous (or standing) contract with non-continuous performance since the yielding of the use of the housing and the therewith connected services is for certain fixed periods of time which are repeated yearly (see Themeli, op. cit., p. 49 et seq.). 30 See Themeli, op. cit., p. 51 et seq. The initials EOT are the abbreviation of the Greek term for Greek Organization of Tourism, ‘Ellinikos Organismos Tourismou’/Ελληνικός Οργανισµός Τουρισµού (Translator’s note). 31 See Art. 1, para. 1, subpara. 2 L. 1652/1986. 32 See Art. 1, para. 1, subpara. 3 L. 1652/1986, as replaced by Art. 2, para. 3 PrD 182/1999. 29

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d. The time-sharing contract continues to be binding after succession (general or specific) and this holds for both the lessor and the lessee.33 e. The lessee has the right to sublease the premises or to yield the use of the housing he has leased to third parties for one or more time periods.34 f. The rent, which is payable either in full or in installments, may also be agreed in foreign currency if the lessee happens to be permanent resident of a foreign country or has his business headquarters abroad.35 g. It is indispensable for the rules regulating the lessor-lessee relationship to be attached to the time-sharing contract and become annexed to it.36 h. Finally, it should be noted that, regarding securities for the financing of the lessor, L. 1652/1986 provides the possibility of substituting bank letters of guarantee, which the lessor can give to his creditors, for the old method of securities, which were almost exclusively based on real securities on immovables. 37 3. Usefulness of the Time-sharing Contract Although the system of the time-sharing contract does not do away with the transactions associated with the classical forms of tourism, it makes it possible for the consumer to secure yearly at low cost and at prices which are not subject to increase a permanent vacation residence during a limited period of time for many years. This type of vacation is even more enticing given the fact that, through the Organizations of Time-sharing Exchange, it is possible to exchange the vacation residence, for one or more uses, with that of another lessee worldwide.38 In this fashion the disadvantage of monotony linked with this type of choice for a vacation spot is eliminated. 4. Conclusion of the Time-sharing Contract The time-sharing contract is a formal transaction because for its valid 33

See Art. 2, para. 1, subpara. 1 L. 1652/1986. See Art. 2, para. 2 L. 1652/1986. 35 See Art. 1, para. 3 L. 1652/1986. 36 See Art. 3, para. 2 in conjunction with Art. 2, para. 2 Decis. Deput. Minist. Nation. Econ. No A 9953/DIONOSE(ΔΙΟΝΟΣΕ)/1789/1987. 37 See Art. 3, para. 1 L. 1652/1986. 38 The main two international organizations for time-sharing exchange are the ‘Resort Condominiums International Inc.’ (RCI) and the ‘Interval International.’ 34

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conclusion a notarial deed and transcription of it are required as constitutive form.39 Moreover, it is necessary for the lessor to notify the Greek Organization of Tourism40 (EOT) of the conclusion of such transaction. 5. Obligations and Rights of the Parties Before referring to the obligations and rights of the contracting parties, it is necessary to mention that, according to an explicit stipulation of PrD 182/1999,41 in time-sharing contracts the provisions of the Greek Civil Code regarding the lease of a thing apply to matters which are not regulated by L. 1652/1986 or PrD 182/1999. A. Obligations and Rights of the Lessor a. Obligations of the lessor Before the conclusion of a time-sharing contract, the lessor is under the obligation to provide information. More specifically, the lessor must deliver a supplementary document42 to every person inquiring about the immovable or immovables on which the right of use under time-sharing terms is to be acquired. This document, other than the general description of the immovable or immovables in question, must furnish brief and exact information about at least certain facts that the lessee should be aware of before concluding the time-sharing contract.43 After the conclusion of the contract, the main obligations of the lessor are the following:44 aa. to notify the Greek Organization of Tourism in writing regarding the conclusion of the time-sharing contract; bb. to deliver the leased premises to the lessee for the agreed use;

39

See Art. 1, para. 2 L.1652/1986. See Art. 4, para. 1 L. 1652/1986. 41 See Art. 8 PrD 182/1999. 42 See Art. 3 PrD 182/1999. 43 These facts are mentioned in the annex attached to PrD 182/1999 and are, among others, the ID and domicile of the contracting parties, the accurate description of the immovable, the services for the common areas, the common areas installations, the general rules of organization, cleaning and maintenance of the immovable, and the price agreed to be paid (see Art. 9, PrD 182/1999). 44 See Art. 4 L. 1652/1986 and Art. 2, para. 2 Decis. Deput. Minist. Nation. Econ. No A 9953/DIONOSE/1789/1987. 40

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cc. to maintain the leased premises, the common areas, and in general all the installations of the tourist unit in good working condition; dd. to maintain the staff needed to cover the demands of full occupancy of the tourist unit; ee. to repair at once any damages as well as all wear and tear and to renew regularly all types of equipment used in the unit; ff. to pay the taxes, dues, and all other fees owed to the state, the Organizations of Local Government (OTA), or third parties, and to pay the various bills for all types of utilities (electricity, telephone, etc.), as well as all the financial obligations stemming from the operation of all the installations of the unit. ∗

b. Rights of the lessor The rights of the lessor which arise in case the lessee does not fulfill his obligations are mainly the following: aa. the right to terminate the contract in case of bad use of the leased premises (Art. 594 CC) or of non payment of the whole or part of the rent (Art. 597 CC); bb. the right to seek damages from the lessee if the latter: a) failed to let him know of defects which showed up during the lease (Art. 589 CC); b) neglects the obligation to use the leased premises diligently (Art. 594 CC); or c) does not behave appropriately towards the other tenants (Art. 594 CC). B. Obligations and Rights of the Lessee a. Obligations of the lessee The main obligations of the lessee are the following:45 aa. to pay the agreed rent; bb. to use the leased premises and the common areas with diligence and to behave properly towards the other tenants; cc. to notify the lessor in a timely fashion of the defects of the leased premises that showed up during his stay; The Greek term for ‘Organizations of Local Government’ is ‘Organismoi Topikis Aftodioikisis’/Οργανισµοί Τοπικής Αυτοδιοίκησης (Translator’s note). 45 See Arts. 574, 589, 594, 599 CC; Art. 1, para. 1 L. 1652/1986; Art. 3, para. 1, and Arts. 5 and 6 Decis. Deput. Minist. Nation. Econ. No A 9953/DIONOSE/1789/1987. ∗

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dd. to pay his share of expenses for the operation of the unit; ee. to return the leased premises to the lessor at the end of every period of use as well as after the expiration of the time-sharing agreement. b. Rights of the lessee46 aa. The lessee has the right to rescind the contract without providing any reason within ten calendar days from delivery to him of the copy of the time-sharing contract or the binding agreement to conclude such timesharing contract.47 bb. The right to terminate the contract on account of the fact that the text of the contract did not provide him with the required by PrD 182/1999 necessary information (e.g. the ID of the contracting parties, precise description of the immovable, price, information as regards the rights of termination and rescission); this right must be exercised by the lessee within three months from the time of delivery to him of a copy of the contract.48 cc. After the elapse of the three months period granted to the lessee to terminate the time-sharing contract, he still has the right to rescind it within ten days from the day following the expiration of the above mentioned three month time period in case the time-sharing contract indeed does not contain the necessary information stipulated by PrD 182/1999.49 dd. The lessee has the following rights in case the lessor does not fulfill his obligations: aaa. the claim to pay less or no rent or seek damages in case the leased premises have defect in title (‘legal defect’) or there are either material defects or lack of agreed qualities (Arts. 583 and 576 CC); bbb. the right to terminate the contract on account of non delivery of the agreed use or because the use of the leased premises poses a threat to the lessee’s health (Arts. 585 and 588 CC). 6. Protection of the Rights of the Lessee The General Assembly of the Lessees50 is the organ appointed for the protection of the rights of the lessees. Every lessee in a time-sharing contract 46

See Themeli, op. cit., p. 98 et seq. See Art. 4, para. 1 (a) and (b) of PrD 182/1999, as amended by Art. 2 of PrD 293/2001. 48 See above footn. 47. 49 See Art. 4, para. 1 (c) PrD 182/1999. 50 See Art. 7 Decis. Deput. Minist. Nation. Econ. No A 9953/DIONOSE/1789/1987. 47

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contract has the right to be part of the General Assembly of the Lessees. The General Assembly of the Lessees is entitled to select a natural or legal person as ‘manager’ entrusted with the following: -

to oversee the compliance with the terms of the contract by the lessor; to secure on behalf of the General Assembly the good and continuous operation and management of the leased premises, the shared areas, and the installations of the tourist unit.

7. Control of the Time-sharing Contracts and Imposition of Sanctions The Greek Organization of Tourism (EOT) has the right to check on the implementation of the time-sharing contracts and on the annexed rules regulating the lessor-lessee relationship as to their conformity with L. 1652/1986, the relevant Ministerial Decision,51 and all the executory acts connected with L. 1652/1986. In case the lessor does not fulfill his contractual obligations or any obligations he has according to the hotel legislation, the Greek Organization of Tourism imposes sanctions,52 each time weighing in concreto the consequences of the sanctions for the lessees and for the tourist image of the country as a whole. If there are serious violations of the obligations of the lessor53 and the usual sanctions54 prove ineffective, it is possible for the Greek Organization of Tourism to impose either temporary or final revocation of the decision to grant a hotel unit time-sharing status.55

51

See Art. 4, para. 1, subpara. 2 L. 1652/1986 in conjunction with Art. 4, para. 1 Decis. Deput. Minist. Nation. Econ. No A 9953/DIONOSE/1789/1987. 52 The provision for these sanctions are in L. 642/1977 (see Art. 4, para. 2 Decis. Deput. Minist. Nation. Econ. No A 9953, op. cit.). 53 These are the obligations of the lessor as defined in the rules regulating the lessor-lessee relationship (see Art. 2, para. 2 Decis. Deput. Minist. Nation. Econ. No A 9953, op. cit.). 54 What is understood by ‘usual sanctions’ is the sanctions imposed by L. 642/1977. 55 See Art. 6 L. 1652/1986 in conjunction with Art. 4, para. 3 Decis. Deput. Minist. Nation. Econ. No A 9953, op. cit.

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IV. THE FACTORING CONTRACT56 1. General The factoring contract which first appeared in the USA at the end of the nineteenth century and became rapidly wide spread internationally was regulated in Greece in 1990 by L. 1905/1990. Today it is still this same law which, along with the modifications it underwent (through L. 2232/1994 and L. 2367/1995), regulates the factoring contract in this country. At this point it is important to note that in Greece the institution of factoring, which was put to use in 1995, has undergone considerable development during the last several years. This is due to the fact that the business world has recognized the benefits it offers. It is anticipated that in the years to follow the institution of factoring will develop at an even faster pace. 2. The Concept and Features of the Factoring Contract A. The Concept The contract of factoring is concluded between one party whose main occupation is to be the supplier of goods or services and another party who is a factor, (i.e. agent) of business claims. The factor undertakes the obligation (for a fee and for the agreed period of time) to offer the supplier services associated with the follow up and receiving payment for one, part of, or the totality of claims the latter has against his clients from goods sold or services rendered to them.57

56

Regarding the factoring contract, see Chr. Themeli, “Factoring: Towards a New Phenomenon of Conducting Business,” in Scientific Seniority Board of the Thessaloniki Bar of Attorneys (Δ.Σ.Θ.), 1985, p. 153 et seq.; P. Malakos, New Financing Institutions: Factoring – Forfaiting, 2nd ed., 1990; Ap. Georgiadis, New Types of Contracts…, op. cit., p. 115 et seq.; V. Vathis, The Factoring Contract, 1995; S. Psychomanis, The Factoring Contract: A Contract of Administering Business Claims, 1996; G. Lazaridis, Contemporary Forms of Financing, op. cit., p. 79 et seq. 57 See Art. 1, para. 1 L. 1905/1990.

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B. Features The characteristics of the factoring contract, which is a reciprocal, onerous, compound,58 and continuous (or standing) contract,59 are the following: a. Only banks which have their headquarters in Greece and operate legally in this country may practice factoring. Factoring may also be practiced by corporations which have been set up precisely for this purpose.60 b. For setting up those special corporations, known as factoring corporations,61 a special permit issued by the Bank of Greece is required and their capital may not be smaller than one fourth of the minimum capital required for setting up banking corporations. These corporations are under the supervision and control of the Bank of Greece.62 c. The factoring contract contains especially the following: aa. the assignment63 to the factor on the part of the supplier of the latter’s claims against his clients; bb. the authorization of the factor by the supplier to receive payment for the latter’s claims; cc. the factor’s financing of the supplier by way of paying him his claims in advance; dd. the factor’s follow up (from an accounting and legal point of view) of the supplier’s claims against the clients of the latter; ee. coverage, in part or in whole, on the part of the factor of the credit risk the supplier runs.64 d. The relation created between factor and supplier is a continuous one because the claims assigned to the factor or the claims which the supplier

58

It is a compound contract because it contains elements of several other contracts (see Georgiadis, op. cit., p. 134 et seq.; Psychomanis, op. cit., p. 160 et seq.). 59 It is a continuous (or standing) contract because the fulfillment of the performance necessarily spreads over a long period of time (see Psychomanis, op. cit., p. 175 et seq.). 60 See Art. 4, para. 1 L. 1905/1990. 61 It goes without saying that for a factoring corporation to be set up all the requirements of the law concerning all corporations need to also be met (see above, footn. 5). 62 See Art. 4, para. 2 L. 1905/1990. 63 Regarding the assignment of a claim, see Arts. 455 et seq. of the Greek Civil Code. For a discussion on assignment, see above Part Six, Ch. B. 64 See Art. 1, para. 1 L. 1905/1990.

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authorizes the factor to collect concern both already existing claims the supplier has against his clients and claims to be born in the future.65 3. Usefulness of the Factoring Contract Factoring offers the supplier a number of services: it makes available to him immediate liquidation of his business claims, their effective management and satisfaction, assessment of the credit worthiness of his current clients as well as of future ones, coverage for the credit risk the supplier takes with his clients, and advisory services in matters of management of the operating capital. 4. Types of Factoring Contracts The most important distinction of factoring contracts is the distinction between genuine and non-genuine. The difference between these two types is the following: In the genuine factoring contract the factor undertakes the risk of the debtor’s insolvency, whereas in the non-genuine one the risk of the debtor’s solvency remains with the supplier. 66 67 5. Conclusion of the Factoring Contract The factoring contract is a formal transaction because for its valid conclusion a written document68 is required as constitutive form. In practice the factoring contracts come in standardized forms, drawn by the factoring corporation. In these forms are mentioned the specific type of factoring contract (whether it is of the genuine or the non-genuine type), the fee of the factor, and the other terms of the agreement.69 However, in order for the factoring contract to be binding for the debtor-client, the latter needs to be notified in writing70 by the supplier or the 65

See Georgiadis, op. cit., p. 123. See Georgiadis, op. cit., p. 124; Vathis, op. cit., p. 25 et seq.; Psychomanis, op cit., p. 47 et seq. 67 Other distinctions of the factoring contract are domestic and international factoring, bulkinhouse factoring, and confidential factoring. As regards the types of factoring contracts, see Georgiadis, op. cit., p. 124 et seq.; Vathis, op. cit., p. 25 et seq.; Psychomanis, op. cit. p. 47 et seq. and 244 et seq. 68 See Art. 1, para. 1 L. 1905/1990. 69 See Georgiadis, op. cit., p. 133. 70 According to Art. 2, para. 2 L. 1905/1990 any written notice is considered notification. 66

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factor. Consequently, only after such written notification is the debtor obliged to make payments to the factor. Before notification, he is obliged to make payments to the supplier. 6. The Operation of the Factoring Contract A. General The factoring contract, the same as the leasing contract, is a trilateral contract.71 To make it better understood we cite the following example: Example: Merchant A (supplier of goods or services), who either sold merchandise or offered services to his clients, has claims against them for various amounts of money. In order for A to be able to receive payment for his claims immediately and rid himself of the preoccupation with procedural matters, the assessment of the credit worthiness of his clients, and the follow up of their financial standing, he concludes a factoring contract with bank T or with factoring corporation F. The result of this contract is that the factor (i.e. the bank or the factoring corporation) undertakes the task to secure payment from A’s clients, to finance the merchant by making payment to him of his claims in advance, and to provide several kinds of services to him. But this factoring contract is only binding for the clients if they have been notified in writing either by the factor or by the supplier himself. This means that only following such notification is the client obliged to fulfill his performance to the agent. Before notification, the clients are only obliged to furnish their performance to the supplier.

B. The Relationship between the Parties a. Relationship between factor and supplier The most important obligations for the contracting parties in the factoring contract are the following: The factor undertakes the obligations: aa. to receive payment of the supplier’s claims from the client or clients; bb. to finance the supplier by paying him in advance the claims he has against his clients;

71

See Georgiadis, op. cit., p. 26.

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cc. to carry out the services he agreed upon with the supplier, e.g. management, bookkeeping, legal follow up of the supplier’s claims against his clients, etc. The supplier on his part has the following obligations: aa. to assign to the factor the claims mentioned in the factoring contract they concluded; bb. to pay the factor the agreed fee; cc. not to enter into another factoring contract with another agent regarding the same claims.72 b. Relationship between factor and debtor-client The relation between factor and debtor-client is created only after the latter has been notified in writing about the factoring contract either by the factor or by the supplier. Prior to such notification, there is no relationship between factor and debtor-client. Following notification,73 the factor takes the place of the supplier, i.e. he becomes the creditor and from that point on payments should be made to him alone. c. Relationship between supplier and debtor-client The relation between supplier and debtor-client may be sale, contract for work, employment contract, etc.74 7. Duration and Expiration of the Factoring Contract The law has no provisions as regards minimum duration of the factoring contract. Consequently, it may be agreed that the duration is fixed or indefinite. Next, we will distinguish between termination of a factoring contract for a fixed term and for an indefinite period.

72

See Art. 3, para. 3 L. 1905/1990. In this case the provisions for assignment of a claim are applicable (Arts. 455 et seq. CC). 74 Depending on what type of contract underlies the supplier/debtor-client relationship, the relevant provisions of the law will be applicable, i.e. if it is sale, the provisions of the law regulating sale (Arts. 513 et seq. CC), if it is contract for work, the provisions of the law regulating the contract for work (Arts. 681 et seq. CC), etc. 73

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A. Factoring Contract for a Fixed Term In case a fixed time has been agreed for the factoring contract, the contract ends after the elapse of the fixed time period. It is possible, however, for the contract to end earlier by way of extraordinary (summary) termination75 initiated by either party if important cause exists. For example, for the factor ‘important cause’ exists if the supplier has misrepresented his true financial situation.76 B. Factoring Contract for an Indefinite Period If the factoring contract is of indefinite duration, any of the contracting parties may terminate the contract upon notice,77 i.e. he may upon notice cause the contract to be terminated after the elapse of a certain period of time78 from the time the contracting party to whom the notice is addressed takes cognizance of it. V. THE FORFAITING CONTRACT79 1. The Concept of the Forfaiting Contract The forfaiting contract is regulated by the same law, L. 1905/1990, which regulated the factoring contract. This is so because factoring and forfaiting are basically aspects of one and the same institution differing only in their practices and the type of claims assigned to the agent to pursue.80 The contract of forfaiting was first used by Swiss banks during the Second World War. Its special feature is that the banks or the special

75

See Psychomanis, op. cit., pp. 177 and 241 et seq. Regarding the concept of extraordinary or summary termination, see I. Karakatsanis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introductory Remarks on Arts. 416-454, No 22 et seq. 76 See Psychomanis, op. cit., p. 177. 77 Regarding the concept of termination upon notice (ordinary termination), see Karakatsanis, op. cit., No 19 et seq. 78 See Psychomanis, op. cit., p. 177. 79 See Introductory Report of L. 1905/1990 “On the Contract of Factoring and Other Provisions,” Art. 1. 80 See Malakos, New Financing Institutions…, op. cit.; Chr. Chrysanthis, Forfaiting: The Financing of Exports, 1991; Georgiadis, New Types of Contracts…, op. cit., p. 165 et seq.; Psychomanis, Factoring…, op. cit., p. 260 et seq.; Lazaridis, Contemporary Forms of Financing, op. cit., p. 101 et seq.

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factoring corporations81 make advance payment to the supplier of claims which are usually of the type of negotiable instruments (e.g. bills of exchange, checks to order) and embody export claims without recourse for payment against the exporter, in case the claim is not satisfied by the importer. For the security of the agent (forfaiter) the claims for which he makes advance payment are guaranteed by a bank which is credit worthy.82 2. The Operation of the Forfaiting Contract The forfaiting contract, which is a way of financing exports, is also a trilateral contract. To facilitate its comprehension we cite the following example: Example: Exporter E concludes a forfaiting contract whereby he sells and assigns to forfaiter P claims he has against importer O in the form of bills of exchange. In case forfaiter P is unable to get importer O to pay for these claims, he does not have recourse for payment against E and cannot demand fulfillment of the performance from him.

81

See above Ch. C, IV, 2, B. Regarding the differences between factoring and forfaiting, see Georgiadis, op. cit., p. 168 et seq.; Psychomanis, op. cit., p. 267 et seq. 82

CHAPTER D NON-REGULATED OR INNOMINATE CONTRACTS I. GENERAL The principle of freedom of contracts allows the contracting parties to form different types of contracts. In those contracts, which are called non regulated or innominate contracts, aside from the rules of the General Law of Obligations, apply by way of analogy the provisions of either the Special Law of Obligations or of special laws. Some of the non regulated (or innominate) contracts appear very frequently in the world of transactions, so much so that they are characterized as “contracts standardized in the transactions”.1 Such typical standardized contracts are, for example, the credit letter, the contract between attorney and client or physician and patient, the franchising contract, the consulting contract (business or professional consulting), the credit card contract, etc. Since from all the above mentioned innominate contracts franchising is the most widespread in our times, we have selected it for our discussion, summary as this discussion may be.

1

See Georgiadis, New Types of Contracts…, op. cit., p. 11.

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II. THE FRANCHISE CONTRACT2 1. General The franchise contract was first practiced in the USA at the end of the nineteenth century when the first network of franchising was organized by Singer, the sewing machines company, for the distribution of its products. Subsequently, franchising was spread to many other types of business: cars, hotels, gas stations, etc. In Europe the rate of development of franchising was guarded at first; but since the Eighties the European enterprises began showing an increasing interest in the development of this type of contract. In Greece franchising has been used for a number of years but it began developing rapidly only since 1993. 2. The Concept and Features of Franchising A. The Concept Franchising is a contract concluded between two enterprises one of which (franchisor) undertakes the obligation to yield to the other (franchisee) for a financial gain (immediate or long term) the right to exploit the ‘franchise package’ for the purpose of merchandising certain types of products and/or services. B. Features a. Franchise package is the sum total of rights of industrial or intellectual property concerning trade marks3 and trade names,4 distinctive

2

Regarding franchising, see Chr. Themeli, “The Franchise Contract,” in Essays in Honor of K. Vavouskos, Vol. B, 1989, p. 85 et seq.; El. Soufleros, The Franchise Contract in Greek and Community Law of Competition, 1995 (reprint of the 1989 ed.); P. Malakos, Franchising – Leasing, op. cit.; D. Kostakis, Franchising: A Legal and Enterpreneurial Dimension, 2nd ed., 2002; Georgiadis, New Types of Contracts…, op. cit., p. 193 et seq.; Lazaridis, Contemporary Forms of Financing, Vol. 2, Franchising, 2000. 3 Trade mark is a distinctive symbol (capable of graph representation) which identifies particular products or services of a trader to the general public, thus distinguishing them from other similar products or services (Art. 1 L. 2239/1994), such as for example, Lacoste, Adidas. 4 Trade name is the name under which the merchant conducts his trade. Distinctive title is a name or representation used in transactions to specify the place where a business operates

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titles of enterprises, utility models, designs, rights on technical expertise (know-how),5 and patents6 as regards the resale of products or the offering of services to the final users.7 b. The franchise contract includes obligations regarding: aa. the use of the common trade name or distinctive title and the uniform appearance of space and means of transportation under the franchise contract; bb. the sharing by the franchisor of his technical expertise (know-how) with the franchisee; cc. the continual supply on the part of the franchisor of commercial and technical support to the franchisee during the time of duration of the franchise contract. Example: Clothing business A grants to business B the right to operate the franchise package of the former with the purpose of reaching new markets with its products.

c. The franchise contract is a reciprocal, onerous contract, a contract of adhesion (or accession) and a compound contract.8 It is also a ‘frame’ type of contract because it only regulates the basic rights and obligations of the contracting parties.9 d. The franchise contract, as was already mentioned, is a non regulated or innominate contract because it is not governed by a specific law. For the (store or, more generally, enterprise), such as for example, restaurant “The Three Brothers,” hotel “Olympus.” 5 Technical expertise (know-how) is the sum total of practical information stemming from the experience of the grantor which is not protected by a patent. 6 Patents are granted by the Organization of Industrial Property (in Greek O.B.I. {‘Organismos Viomihanikis Idioktisias’/Οργανισµός Βιοµηχανικής Ιδιοκτησίας}) when it is proven that they constitute an invention, i.e. a new creation involving inventive activity and capable of industrial application (Art. 5, L. 1733/1987). 7 See I. Voulgaris, “Franchise Agreements as they Result from the International Legal Practice and Operate in International Transactions,” in NoB 46 (1998), p. 897 et seq., especially p. 904 et seq. The Commission Regulation (EEC) No 4087/1988 of November 30, 1988 (“On the application of Article 85(3) of the Treaty to categories of franchise agreements”), which was valid until May 31, 2000, defined the concept of ‘franchise package’ in Art. 1, para. 3a. 8 See Soufleros, op. cit., p. 106 et seq.; Georgiadis, op. cit., p. 235 et seq. 9 For the fulfillment of the obligations stipulated in the franchise contract it is necessary to conclude a series of specific contracts as regards, for example, the supply of raw material, measures for the promotion of sales, etc. See Soufleros, op. cit., p. 57 et seq.; Georgiadis, op. cit. p. 205 et seq.

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operation of this contract the provisions of the Greek Civil Code apply and, by analogy, the provisions of PrD 219/1991 as regards the commercial representatives, L. 703/1977 as regards the protection of free competition, and L. 2251/1994 as regards the consumer’s protection. Since May 31, 2000, Commission Regulation (EEC) No 4087/1998 of November 30, 1998, which used to govern the franchise contract, no longer applies.10 Beginning January 1, 2000 the new Commission Regulation (EC) No 2790/1999 of December 22, 1999, “On the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices,” which entered into force on June 1, 2000, applies.11 The Commission Regulation (EC) No 2790/1999 of December 22, 1999 has no definitions regarding franchising or special provisions regarding the relevant contracts. This regulation only indirectly concerns franchising because it refers to certain categories of vertical agreements regarding the supply and sale of goods or services.12 Regarding franchising it should be noted, however, that the European Federal Franchise has set up a European Code of Ethical Conduct which was also adopted by the Franchise Association of Greece. Even though this Code is not legally binding, nonetheless it sets up standards of proper behavior for all those dealing with franchising.13 3. Advantages and Disadvantages of the Franchise Contract The franchise contract has several advantages and disadvantages for the contracting parties. More specifically: A. Advantages a. Advantages for the franchisee The advantages for the franchisee are the following: aa. He retains the legal and managerial autonomy of his business. bb. He makes use of the technical expertise (know-how) of the franchisor. 10

See Art. 12, para. 1 Commission Regulation (EC) No 2790/1999 of December 22, 1999. See Art. 13 Commission Regulation (EC) No 2790/1999 of December 22, 1999. 12 See Georgiadis, op. cit., p. 221. 13 See Kostakis, op. cit., p. 659 et seq. 11

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cc. He needs less capital than he would have otherwise needed if he were to start his own business. dd. He gets technical and managerial support from the franchisor. ee. He buys merchandise (raw material, ready made – or partially ready made – products) at better prices through the mass markets of the franchisor. ff. He improves his credit standing in the business world which positively affects his ability to get financing and helps him in other commercial matters. b. Advantages for the franchisor The advantages for the franchisor are the following: aa. Franchising allows the franchisor to increase the number of the distribution outlets of the products or services of his business without committing his capital. bb. He has a better return on his capital. cc. He broadens the network of his sales or services internationally without getting involved in procedures or incurring as many expenses as he would have otherwise incurred if he were to seek work permits etc. for the operation of his business abroad. dd. His name and reputation increase with the rapid expansion of a known network of distribution, something which strengthens his competitive status in the market. B. Disadvantages a. Disadvantages for the franchisee The disadvantages for the franchisee are the following: aa. He is very dependent on the franchisor. bb. His initiative is limited because he is obliged to follow the detailed instructions of the franchisor. cc. His commercial success depends mainly on the entrepreneurial policy of the grantor. If, in other words, the commercial name of the franchisor ceases to be as reputable as it used to be, due to bad management of the business on the part of the franchisor, this will also immediately affect the image of the franchisee in the market.

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dd. The clauses which are usually included in the franchise contract mainly aim at protecting the interests of the franchisor, thus imposing obligations and limitations to the franchisee. b. Disadvantages for the franchisor The disadvantages for the franchisor are the following: aa. Because of the fact that the selection of the franchisee is hard, this type of collaboration is not immune to the risk of failure. bb. It is difficult for the grantor to exercise the necessary control for the correct application of the instructions given by him to the franchisee. cc. The franchisor’s share in the profit from the sale of the products or services via franchising is less than it would have otherwise been had he opened his own branches. 4. Types of Franchising Depending on the object of the transaction, there are four types of franchising: i) distribution franchising; ii) franchising of services; iii) production or industrial franchising; and iv) mixed franchising. More specifically: A. Distribution Franchising Distribution franchising is the most common type of franchising and refers to the sale by the franchisee to the final consumers (i.e. retail sale) of one or more products of a certain category inside a store carrying the distinctive title of the franchisor.14 This type of franchising may be found in food items (e.g. Leonidas chocolates, Coffea coffee), clothing items for women, men or children, (e.g. Benetton, Kookaï, Springfield, Alouette), furniture (e.g. Ikea, Neoset), photographic equipment (e.g. Quick Foto), etc. B. Franchising of Services During the last several years the franchising of services is on the rise. It consists in the offering of services on the part of the franchisee to the final consumers, services which carry the distinctive title, trade name, or even the 14

See Soufleros, op. cit., p. 13.

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trade mark of the franchisor. Moreover, they are services which are rendered according to the instructions given to the franchisee by the franchisor.15 The franchising of services may be found in the restaurant and fast food business (e.g. Mc Donald’s, Applebee’s, TGI Friday’s), in the hotel business (e.g. Hilton, Novotel, Holiday Inn), in the car rental business (e.g. Hertz, Avis), etc. C. Production or Industrial Franchising In production or industrial franchising the franchisor yields to the franchisee the license to manufacture or alter certain products according to the instructions of the former and then sell them with the franchisor’s trade mark.16 Typical examples of this are the cases of bottling services and sale of non alcoholic beverages such as Coca-Cola, Schweppes, Seven-Up, etc. D. Mixed Franchising The mixed franchising has elements of distribution franchising and services franchising, i.e. it combines the sale of products and the therewith connected services.17 The franchising of cars may be a good example of such mixed franchising because it combines the sale of cars with services for their repair and maintenance; the same holds for the franchising of cosmetics which combines the sale of cosmetic products with the services of a beautician. 5. Conclusion of the Franchise Contract Even though it is not required by law for the franchise contract to be in writing, the written form for the franchise contract is mandated by rules of law (Greek and Community) pertaining to competition.18 In practice, for the conclusion of a franchising contract a standardized document drafted by the franchisor is used which defines the rights and obligations of the contracting parties.

15

See Soufleros, op. cit., p. 13 et seq. See Soufleros, op. cit., p. 14 et seq. 17 See Soufleros, op. cit., p. 15. 18 See Soufleros, op. cit., p. 23; Georgiadis, op. cit., p. 222. 16

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6. Main Obligations of the Parties A. Main Obligations of the Franchisor The main obligations of the franchisor are the following: a. To yield to the franchisee the use and exploitation of the franchise package.19 b. To integrate the franchisee to the franchising system by providing him with the necessary technical support as well as the necessary training. c. To furnish to the franchisee the products agreed upon in the contract. d. To see to it that the franchisee is constantly supplied with advice regarding technical, financial, and organizational matters. e. To undertake the advertising of the products mentioned in the franchise contract. f. To determine the territory within which the franchisee shall conduct his sales business. B. Main Obligations of the Franchisee The main obligations of the franchisee are the following: a. To pay the franchisor the entry fee (i.e. the price for having obtained access to the franchising system). b. To pay to the franchisor periodically a percentage from his profits according to the number of sales (franchise fee, royalties). c. To actively promote the sales through his personal work and the use of all other means the franchisor supplies him with. d. To share the expenses for advertising and organizing training programs. e. To comply with the organizational principles of the system and especially to conform to the principles of uniformity, meaning that the composition, preparation, and characteristics of the product must be the same. f. To get these products exclusively from the franchisor or a third party connected with the franchisor.

19

For the notion of the ‘franchise package,’ see above Ch. D, II, 2, B, a.

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g. To honor the trust placed in him by the franchisor, meaning to follow his instructions and mandates, not to engage in unfair competition against him, and to keep the secrets of the trade. 7. Termination of the Franchise Contract The franchise contract may be of fixed or indefinite duration. We will proceed to examine how the franchise contract is terminated depending on whether it is for a fixed term or for an indefinite period. A. Franchise Contract for a Fixed Term The franchise contract for a fixed term is terminated at the expiry of the agreed time period. But each of the contracting parties may also terminate it earlier by way of extraordinary termination (summary termination) if there is important cause. Important cause exists not only in case of breach of contract due to the other contracting party’s fault20 but even regardless of fault, as for example in case of severe deterioration of the financial status of one of the parties. B. Franchise Contract for an Indefinite Period The franchise contract for indefinite duration may be terminated either upon notice (ordinary termination) or by way of extraordinary termination (summary termination). More specifically: -

20

Regarding termination upon notice, it should be noted that it does not call for the presence of any essential conditions. Nonetheless, the termination upon notice should not be untimely,21 i.e. the

For the franchisor examples of important cause due to fault of the franchisee are the following: the latter’s not abiding by the instructions of the franchisor; his breach of contract as regards the prohibition to engage in unfair competition; refusal to pay the franchisor the quid pro quo due to him as per the agreement. For the franchisee examples of important cause due to fault of the franchisor are the following: the breach of contract on the part of the franchisor as regards his obligation to supply the franchisee with technical and commercial support or to equip him with defect free products. 21 Regarding the minimum duration of the franchise contract, see Soufleros, op. cit., p. 131 et seq.; Georgiadis, op. cit., p. 240 et seq. See also Ap. Georgiadis, “The Anomalous Evolution

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franchise contract should not be terminated before the amortization of the beneficiary’s investments. Thus, in case one of the contracting parties terminates the franchise contract untimely, he is liable to pay damages to the other.22 Regarding extraordinary termination, what was already mentioned earlier about the franchise contract for a fixed term also holds here.

C. Legal Consequences of the Termination of the Franchise Contract a. Termination of the franchise contract, whatever the method it was terminated by, results in the following: the franchisee needs to return to the franchisor the items the latter had supplied him with and cease making use of the rights granted to him during the agreement. b. Liability for damages23 exists only in the following cases: aa. In case of untimely termination upon notice, the party who initiated such termination may be liable for damages to the other contracting party. bb. In case of extraordinary termination, the party who, by his inappropriate behavior, caused this termination to be initiated may be liable for damages vis-à-vis the other contracting party.

of the Franchise Contract,” in Commercial Law Review, 1996, p. 247 et seq. and especially p. 250 et seq. 22 See Themeli, “The Franchise Contract,” op. cit., p. 118. 23 Regarding the eventual claim for damages on the part of the franchisee for loss of clientèle and increase of the so-called ‘good will’ of the store, see Themeli, op. cit., p. 119; Soufleros, op. cit., p. 170 et seq.; Georgiadis, New Types of Contracts…, op. cit., p. 252 et seq.

4. Property Law

INTRODUCTION 1. Property Law is the law containing the provisions which regulate real rights, i.e. the relationship of persons to things. According to Article 973 of the Greek Civil Code, real rights are the rights granting absolute and against all (erga omnes) power over the thing. It follows from the above definition that: A. The real right is an immediate right, i.e. a right granting its bearer direct power over the thing without any third party intervention. Example: The owner of a farm may sow it, clear it, collect its fruit, sell it, etc.

B. A real right gives the holder not only immediate but also absolute power, meaning that he is entitled to pursue his right against all (erga omnes) and demand that his right be respected by all. Example: The owner of a farm has the right to sue anyone who offends his right of ownership by trespassing on his property or evicting the rightful owner from it.

2. Article 973 of the Greek Civil Code restrictively lists the real rights that may exist (numerus clausus). They are: ownership, servitudes (personal and real), pledge, and mortgage.1 Ownership differs from the other real rights (which are called limited real rights) mainly with regard to the extent of its content. The reason for 1

To be noted, however, that apart from the real rights enumerated in the Greek Civil Code, other real rights have also been introduced to the legal system of the country by special legislation. The most important of them are the real rights on a mine, i.e. the rights conferred to the holder independently of the right of ownership of the land to extract and exploit minerals; the real right conferred to the state to own therapeutic springs, a right equally independent of the ownership of the ground where said springs are located; and the right of the state to be given preferential consideration in the case of sale of an immovable which is useful to society as a whole, such as for example, a private forest. See Ap. Georgiadis, Property Law, Vol. I, 1991, p. 51 et seq.

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this is that only ownership has the element of universality, i.e. it includes all powers over the thing. The content of the other real rights is specifically determined by law, given the fact that each of them affords different benefits to the holder. Possession, even though not a real right (it rather constitutes a ‘real condition’), belongs to Property Law because it is considered a sui generis right over a thing.2

2

See Ap. Georgiadis, op. cit., Vol. I, 1991, p. 141 et seq.

PART ONE THINGS Since real rights regulate the relationship of persons over things, it is necessary on the one hand to define things as objects of property rights and on the other hand to distinguish between the various categories of things. CHAPTER A CONCEPT AND DISTINCTIONS I. THE CONCEPT Thing is every corporeal, impersonal, self-existent object susceptible of appropriation by man. It follows from the above definition that the conceptual elements of the thing are: 1. Corporeal object: the term corporeal object means that the thing has a corporeal existence. Incorporeal objects, such as products of the intellect, are not things. The law provides for an exception as regards natural forces and energies stating expressly that they are considered as things: “Shall also be deemed things the natural forces or energies, particularly the electric current and the heat, in so far as such forces are subject to control when concentrated within a delimited space” (Art. 947, 2 CC). At this point it should be noted that to delimit power in a certain space means to confine it in a certain network (e.g. of production, of accumulation, etc.) 2. Impersonal object: in order to understand what we mean by impersonal object suffices to state that the human being (as a whole as well as his organs), when alive, may not constitute a ‘thing’. However, once the person is dead, his body or its parts may become things, thus becoming the

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object of rights (e.g. the corpse may be used in an anatomy laboratory; parts of it may be transplanted, etc.). 3. Self-existent object: by self-existent object is understood that the object has an existence of its own. For example, a painting or sculpture which is the work-in-progress of the artist (the painter or the sculptor) is not a self-existent object. 4. Object susceptible of appropriation by man: by susceptible of appropriation by man we mean that the object should be such that man can exercise possession over it. When this is the case is a matter determined by the views prevailing in transactions. However, the air, the sea, the stars, etc. are not susceptible of appropriation. II. DISTINCTIONS 1. Movables and Immovables According to Article 948 of the Greek Civil Code, immovable things are the ground and its component parts, e.g. an apartment in an apartment complex, a farm. The Greek Civil Code gives no definition of movables. It simply states in Article 948 that movables are all the things which are not classified as immovables, e.g. a car, a book, a piece of machinery. 2. Fungibles and Non-fungibles According to Article 950 of the Greek Civil Code, fungible things are only those movables which in transactions are usually determined by number, measure or weight, e.g. eggs, cans, fabric, wheat, oil. Non-fungible things are the immovables and those movables which in transactions are not determined by number, measure or weight, e.g. a painting, a sculpture. 3. Consumables and Non-consumables According to Articles 951-952 of the Greek Civil Code, consumables are those movables the intended use of which consists in their consumption or alienation, e.g. coins, food items, drinks, etc. Non-consumables are the immovables and those movables the intended use of which does not consist in their consumption or alienation, e.g. the furniture and carpets of a house, the books of a bookcase.

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4. Principal and Dependent Of two things the one which is self-existent and has an autonomous function is the principal thing. By contrast, dependent is the thing which ‘depends’ on the principal thing or serves it. Examples: The apartment is the principal thing, whereas the furniture inside the apartment constitutes the dependent things. In a battery operated CD player, the CD player is the principal thing and the batteries are the dependent things.

The dependent things are distinguished in component parts and accessories. 5. Component Parts and Accessories A. Component Parts Component part is the part of a thing which cannot be removed from the principal thing without suffering damage itself or causing damage to the principal thing or without changing the substance or intended use of either (Art. 953 CC). Examples: The buildings par rapport to the ground; the doors, the windows, and other materials used for constructing a building; the motor and the wheels of a car.

If, however, certain things have been attached to the ground only for temporary purposes, they do not become component parts of it (Art. 955, 1 CC), e.g. the sheds of a construction crew, the platforms set up for a public event. The legal consequence of characterizing a thing as ‘component part’ is the following: since it is insusceptible of separate real rights, its status follows that of the principal thing. For example, if the apartment is sold, so are its doors and windows. B. Accessories Accessory is a movable thing which, without being a component part of the principal thing, is destined to continuously serve its economic purpose and has already been placed with regard to the principal thing in a space relationship appropriate to its destination (Art. 956 CC). Examples: The oars par rapport to the boat, the key to the apartment, the bag to the wheat, the barrel to the wine.

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The Greek Civil Code stipulates the following in Articles 959-960: -

-

In the case of a building constructed for the purpose of serving permanently an industrial enterprise, the machines, utensils, and tools destined for use in the enterprise shall be deemed accessories of the building. The utensils, tools, and cattle destined for the economic exploitation of an agricultural immovable are considered its accessories.

From a legal standpoint the practical significance of characterizing a thing as accessory is that, unlike what happens with component parts, the accessory may be subject to separate real rights. Example: The owner of an agricultural property may sell the animals of the farm, which are placed in it and destined for its economic exploitation, independently of the immovable.

In case of doubt, however, i.e. if the parties were not specific in their agreement, the legal transaction dealing with a real right on the principal thing shall include the accessory (Art. 958 CC). Example: If the ownership of a farm was transferred by reason of sale, so is the ownership of the water pump situated inside.

6. Things out of Commerce (res extra commercium) Things out of commerce (or out of the realm of transactions) are the things which are common to all, those of common use, and those dedicated to serve public, municipal, communal, or religious purposes (Art. 966 CC). More specifically: A. Things common to all are the things which belong to all men (e.g. the air, the sea) and, consequently, cannot be subject to private transactions. B. Things of common use are the things which are destined to be used by all men. Article 967 of the Greek Civil Code mentions the following as things of common use: freely and perpetually running water, roads, public squares, the seashore, harbors and roadsteads, the banks of navigable rivers, large lakes and their shores. C. To the category of things extra commercium dedicated to serve public purposes belong such things as state-owned buildings housing governmental offices, hospitals, etc.

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D. Things extra commercium dedicated to serve municipal or community purposes are the buildings owned by the municipalities or communities which house municipal or communal offices, schools, orphanages, hospitals, etc. E. Finally, things extra commercium dedicated to serve religious purposes are the churches, the monasteries, etc.

PART TWO POSSESSION CHAPTER A THE CONCEPTS OF POSSESSION AND DETENTION I. THE CONCEPT OF POSSESSION Usually, the person having the right of ownership also has the physical control of the thing owned (e.g. A is the owner of the farm and also has physical control of it). Occasionally, however, it happens that the physical control of the thing is removed from the rightful owner (e.g. A is the owner of the farm but B has trespassed on it). This real condition of physical control over a thing with the intent on the part of the person possessing it to behave as the owner is called possession (possessio). The Greek law gives possession an autonomous place in the legal system for the sake of the safety of transactions. Possession is one’s exercise of physical control over a thing with the intent to own it (Art. 974 CC). It follows from the above definition that the two elements necessary for a person to acquire possession over a thing are: 1. Physical control over the thing (the element of corpus). 2. The person’s intention to possess the thing as its owner (the element of animus). Example: The person who unlawfully evicted the owner of an immovable from the premises and settled in it himself is the possessor of the immovable; the same holds true if the person stole a camera and is now in possession of that movable.

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II. THE CONCEPT OF DETENTION If a person exercises physical control over a thing without the intent to own it, we have detention (detentio). For example, the tenant of an immovable or the depositary with whom a movable is deposited have detention of the thing. CHAPTER B ACQUISITION, LOSS, AND PROTECTION OF POSSESSION I. ACQUISITION OF POSSESSION The acquisition of possession is distinguished in original and derivative. 1. Original Acquisition The acquisition of possession is original when it is effected without the previous possessor’s will or regardless of it. This, for example, is the way possession is acquired by the person who seizes a derelict object, the fisherman who catches a fish, the thief of a movable object, the individual who trespasses on a property. 2. Derivative Acquisition Derivative acquisition is the acquisition of possession which is based on the preexisting possession of another person and takes effect with the latter’s consent. In other words, the person to whom the possession of a thing is yielded voluntarily by the former possessor acquires it derivatively. For example, A sells B his farm or he sells him his car and delivers it to him. II. LOSS OF POSSESSION The possession is lost as soon as the physical control over the thing ceases (e.g. A’s watch is dropped in the sea) or the possessor expresses a contrary volition towards the thing possessed (e.g. A leaves the magazine in the bus because he no longer wants it). There is no change in possession if

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the physical control over the thing is lost by an event which is temporary in nature. III. PROTECTION OF POSSESSION Although possession is not a real right but an actual condition, the law protects it from certain breaches. According to Article 984, para. 1 of the Greek Civil Code possession is offended if the possessor is either disturbed in the exercise of his right of possession (e.g. A passes daily through B’s farm without the latter’s consent) or evicted from it (e.g. A steals B’s computer), provided that such acts are unlawful and without the possessor’s consent. Possession is protected by the right of self-rule (private justice) or the right to bring legal action. More specifically: 1. The protection of possession by self-rule consists in the possessor’s right on the one hand to repulse by force every disturbance or threatened eviction from possession, and on the other hand to retrieve forcibly the thing that was dispossessed illegally and without his consent (Art. 985 CC). 2. Legal protection consists in the legal actions for restoration of possession, in case of eviction (Art. 987 CC et seq.), and for cessation of the disturbance, in case of disturbance of possession (Art. 989 et seq.), depending on whether the possessor was evicted from his possession or whether, without being evicted, he was disturbed in the exercise of his right to possess.

PART THREE OWNERSHIP CHAPTER A THE CONCEPT OF OWNERSHIP I. Ownership is the real right affording the owner all powers over the thing (i.e. use, enjoyment of the fruits and profits, sale) and precluding any infringement of a third party thereon without the owner’s consent. II. Usually the owner of a thing also has physical control over it with ownership, possession, and mere detention converging in the same person. Examples: A lives in his apartment or A cultivates his farm. In these cases A is all of the above: owner, possessor, and detentor.

But in case the owner does not have physical control over the thing, one of the following may be happening: 1. If the owner has entrusted the exercise of the physical control to another who exercises it in the name of the former, the person who granted this power is the owner and possessor, whereas the person who exercises it is the detentor. Example: A, the owner of an apartment, leases it to B. In this case A is the owner and possessor, whereas B is the detentor.

2. If the owner did not entrust the physical control to another to exercise it in the owner’s name, then it is the case where owner, possessor, and detentor are three different persons. Example: B trespassed on A’s farm and leased it to C. In this case A is the owner, B the possessor, and C the detentor.

CHAPTER B TYPES OF OWNERSHIP I. FULL OWNERSHIP Full ownership is the ownership which grants its one and sole owner exclusive right over the thing and gives him all the powers over it (Art. 1000 CC). Examples: A is the owner of an apartment; B is the owner of a car.

II. BARE OWNERSHIP Bare ownership (nuda proprietas) exists when a thing is burdened with usufruct (ususfructus).1 In other words bare ownership is the ownership which is ‘stripped’ of the original plenitude of full ownership and where the owner only has the right to dispose of the thing. Example: A transfers to his son B the bare ownership of one of his apartments and keeps the usufruct for himself. This implies that A has the right to use and lease the apartment, whereas B has the right to sell it.

III. CO-OWNERSHIP Co-ownership is the ownership belonging to several owners in undivided ideal shares (Art. 1113 CC)2. Co-ownership is governed by Articles 785-805 of the Greek Civil Code. 1

Regarding usufruct, see below Part Four, Ch. A, II, 2, A. In countries belonging to the Anglo-Saxon legal tradition there is a distinction between ‘joint tenancy’, where upon the death of one co-owner his interest passes on to the surviving joint tenant(s), and ‘tenancy in common’, where no right of survivorship exists when one tenant in common dies. The form of co-ownership known in the Greek law is of the type of 2

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Examples: − A and B are co-owners of an immovable by 50% undivided ideal shares each. − A, B, C, and D inherited a farm from their father. These co-heirs are co-owners of the farm by 25% undivided ideal shares each.

IV. OWNERSHIP OF A STOREY OR HORIZONTAL OWNERSHIP The ownership of a storey or horizontal ownership (Arts. 1002 and 1117 CC and L. 3741/1929)3 is a special type of ownership. It involves the following: ∗

a. Exclusive individual ownership of a storey in a building or of an apartment in a storey. b. Compulsory undivided co-ownership by proportional shares over the common parts of the whole immovable (e.g. land, external walls, stairs). Example: Building constructor A constructs an apartment building of twenty five apartments on a piece of land of 1,500 square meters. Each buyer becomes: (a) the exclusive owner of the purchased apartment, and (b) the co-owner, along with the other apartment owners, of the land on which the apartment building was erected as well as of the other parts of the immovable (external walls, stairs, elevator, etc.).

‘tenancy in common.’ The ‘joint tenancy’ type is unknown to Greece. See the relevant comments of Y. Karibali-Tsiptsiou, Property and Trust Law in Hellas, 2003, p. 159 (in English). 3 See also LegD 1024/1971 “On Divided Ownership on Buildings Erected on Uniform Land” and L. 1562/1985 “On Constructing Co-owned Immovables and the Modification of Articles of CCPr. Regarding Partition and Other Provisions.” In this regard, see Georgiadis, op. cit., p. 659 et seq.; I Spyridakis, Property Law, Vol. B/1, 2001, p. 404 et seq.; I Spyridakis, The Law of Horizontal and Vertical Ownership, 1996; F. Tsetsekos, Horizontal and Vertical Ownership (Separate Ownership), 2002. Interestingly, the institution of horizontal ownership, which was unknown to the Roman law, was not unknown to the ancient Greek law and the Hellenistic law; moreover, it constituted part of the custom law practiced in certain islands of Greece during the Turkish occupation (see G. Petropoulos, op. cit., pp. 631-632). To be further noted that L. 3741/1929, which first introduced the institution of horizontal ownership in Greece before the introduction of the Greek Civil Code, remained in force even afterwards (Translator’s note). ∗

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V. VERTICAL OWNERSHIP Vertical ownership is the separate ownership of one (or part of one) or more self-existent and independent buildings erected on a single building plot. It is governed by LegD 1024/1971.4 Vertical ownership involves the following: a. Exclusive ownership of one (or part of one) of at least two selfexistent buildings. b. Compulsory co-ownership, by proportional shares, over the uniform land and the other common use areas which may exist. Example: A and B bought a piece of land together and each built a single family home on it.

CHAPTER C RESTRICTIONS OF OWNERSHIP According to Article 1000 of the Greek Civil Code the owner of a thing, as long as this does not violate the law or infringe upon the rights of a third party, may dispose of it at will and exclude any action thereon on the part of others. However, ownership is subject to restrictions imposed by law or by the rights of third parties. I. RESTRICTIONS OF OWNERSHIP IMPOSED BY LAW Restrictions of ownership which are imposed by law are found either in the Greek Civil Code or in special statutes. 1. In the Greek Civil Code a series of articles (1003-1032) which refer to ‘neighbor law’ oblige the owner of a thing to either omit certain actions on the thing or to tolerate actions of others on it. Examples: − It is prohibited for the owner of an immovable to construct or maintain installations harmful to the neighboring immovable or to excavate his 4

In the case of vertical ownership are supplementally applicable Arts. 1002 and 1117 of the Greek Civil Code and L. 3741/1929. See Georgiadis, op. cit., p. 467 et seq.; Spyridakis, Property Law, op. cit., p. 413 et seq.; Tsetsekos, op. cit.

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side of the building to such depth as to cause reason for concern over the safety of the foundations of the neighboring immovable (obligations for omission of acts on the part of the owner). − The owner of an immovable is obliged to tolerate the emissions of smoke, smog, or other influences coming from the neighboring immovable, to the extent that they do not substantially harm the use of the immovable affected or stem from the type of use which is common to the area where the immovables are situated (obligation imposed on the owner to exercise tolerance).

2. Special laws impose restrictions of ownership for reasons of general public interest, such as the rules of the General Construction Regulation, the laws for the protection of public order and security, public health, archeological sites and treasures, etc. The greatest restriction of ownership is the restriction due to compulsory expropriation in the public interest after due compensation. The institution of compulsory expropriation is governed by the Constitution of Greece (Art. 17) and by a special law.5 II. RESTRICTIONS OF OWNERSHIP FROM THIRD PARTY RIGHTS Third party rights imposing restrictions on ownership are the limited real rights, i.e. the servitudes, the pledge, and the mortgage. Examples: − A, the owner of a farm, has granted the owner of the neighboring immovable (whoever that person may be at any particular time) the real servitude of crossing his land (right of way). − A, the owner of an apartment, has provided bank T with the security of a mortgage on his apartment on account of the fact that he has borrowed the amount of 30,000 euros from the bank.

5

See LegD 797/1971 “On Compulsory Expropriation”.

CHAPTER D ACQUISITION OF OWNERSHIP I. GENERAL The ways of acquisition of ownership are derivative (acquisitio derivativa) and original (acquisitio originaria). Derivative acquisition of ownership is the acquisition based on a previously existing right of ownership. We have derivative acquisition of ownership when the ownership is transferred by way of contract or succession. Original acquisition of ownership is the acquisition which is not based on the right of another. We have original acquisition of ownership in cases such as the following: acquisitive prescription (usucapio), occupancy of a derelict thing belonging to no one (res nullius), finding of a lost and unclaimed thing, etc. II. DERIVATIVE ACQUISITION OF OWNERSHIP From the several ways of derivative acquisition of ownership we will refer to the most important among them which is the transfer of ownership by way of contract. The Greek Civil Code distinguishes between transfer of ownership of immovables and of movables. 1. Transfer of Ownership of Immovables According to Article 1033 of the Greek Civil Code, for an immovable to be transferred an agreement between the owner and the acquirer is required stipulating that the ownership is being transferred to the latter for a lawful cause. The agreement in question needs to be vested notarial deed

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form and recorded in the land conveyance records of the district in which the immovable is located (transcription). As is obvious from the above provisions of the law, for the transfer of the ownership of immovables the following conditions need to concur: A. The transferor must be the owner of the immovable transferred. B. There must be an agreement between transferor and acquirer that the ownership is transferred to the latter. This agreement constitutes the contract of transfer of ownership. C. The agreement needs to be vested the form of a notarial deed. D. The agreement regarding the transfer of ownership needs to be based on a lawful cause, e.g. sale, donation, parental granting, etc. This is so because the contract of transfer of ownership is a causal juridical act.1 E. For the transfer of the immovable to be complete, the notarial act through which the transfer agreement was executed needs to be transcribed, i.e. recorded in the land conveyance records situated in the district where the immovable is located.2 At this point it should be mentioned that delivery of possession is not required; only recordation. Up until the transaction is recorded, it does not bring about its intended results of transfer of ownership. The transfer of ownership of an immovable takes effect only from the moment the transaction is transcribed.3 ∗

In recent times parental granting in Greece (known as ‘gonike parohe’/γονική παροχή) is frequently practiced in connection with immovables which are transferred from parent to child – as opposed to being inherited by the children after their parents’ death – due to certain tax advantages it affords. In this case what usually happens is this: the parent transfers the bare ownership of an immovable to his children and, upon his death, the usufruct he had retained for himself gets automatically joined with the bare ownership, thus providing his descendants with full ownership. However, parental granting is by no means limited to such transactions and may well include all types of grants given by parents to children, e.g. to help them with the expenses for their studies, their professional establishment, etc. See below Family Law, Part Three, Ch. B, ΙΙΙ (Translator’s note). 1 A juridical act is causal when its validity depends on the existence and validity of a lawful cause (justa causa). 2 Transcription consists in making an entry of the summary of the act that needs to be recorded in the land conveyance records by chronological order of submission (Arts. 1192 et seq. CC). See below Part Six, Ch. A, I. 3 According to L. 2664/1998 (Art. 1, para. 3), when the land registry takes effect, it will replace the currently existing person-centered system of recording the transfer of ownership regarding immovables and the constitution of mortgages in the areas where the new landcentered system will be introduced. See below Part Six, Ch. B, I. ∗

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Example: In the morning of October 10 A transferred an apartment of his to B and the transaction was vested the notarial deed form. In the afternoon of the same day A transferred the same apartment to C and once again the transaction was vested the notarial deed form. From the two buyers the person who will acquire ownership over A’s apartment is the one who will be the first to record the sale in the land conveyance records. It is irrelevant who signed the sale contract first or who got the keys to the apartment first.

2. Transfer of Ownership of Movables A. The General Rule According to Article 1034 of the Greek Civil Code, for the transfer of ownership of movables it is necessary for the owner to deliver possession of the thing transferred to the acquirer and for the two of them to agree as to the transfer of ownership. From the above provisions of the law it follows that for the ownership of a movable to be transferred the following conditions need to concur: a. The transferor must be the owner of the thing transferred. b. There must be an agreement between transferor and acquirer. This agreement is an informal contract, i.e. it is not subject to any particular form. It is also a non causal agreement, i.e. the transfer of ownership is effective regardless of the underlying cause. c. The owner needs to deliver possession of the thing to the transferee. ∗

Example: A agrees with B that he will transfer the ownership of his computer to him and proceeds to materially deliver the computer to B. The transfer of ownership is valid even if the parties had not previously agreed on the reason for which this transfer would be made (i.e. sale, donation, etc.).

B. The Exception to the Rule (Transfer of Movable by Non-owner) For the sake of maintaining a level of safety in transactions as far as movables are concerned, the legislator in the Article 1036 of the Greek Civil Code introduced an exception to the above mentioned general rule that the transferor needs to be the owner of the thing transferred. The exception is that the transferor of a movable does not have to be the owner of the thing. Here Greek law reflects the familiar from Roman law civilian maxim ‘nemo plus juris ad alium transfere potest quam ipse habet,’ i.e. no one can transfer a greater right than one has (Translator’s note). ∗

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According to Article 1036 of the Greek Civil Code in the case of sale of a movable thing in conformity with the provisions of Article 1034, the acquirer becomes the owner of the thing sold even if the transferor is not the owner of it, unless the former at the time of delivery of possession acted in bad faith. Consequently, for the ownership of a movable to be transferred by a non-owner, the following conditions need to concur: a. The transferor must not be the owner of the thing transferred. b. An agreement of transfer of ownership between the parties needs to exist. c. The possession of the thing transferred must be delivered to the acquirer by the transferor and said delivery must be accomplished materially. d. The acquirer needs to act in good faith. In this case good faith is either the conviction that the transferor is the owner or the lack of knowledge that he is not, provided that such lack of knowledge is not due to error resulting from gross negligence.4 Example: A gave B a CD player as a loan for use and B sold it to C. If C did not know that B was not the owner, nor did he ignore this fact due to gross negligence (i.e. if C acted in good faith), he acquires ownership over the CD player. On the contrary, if C acted in bad faith (i.e. if he knew that B was not the owner or ignored the matter out of gross negligence), he does not acquire the ownership of it.

An exception to this, which implies that we thus return to the general rule, exists when the rightful owner of the transferred movable has lost possession of it by way of theft or loss (Art. 1038 CC).5 Examples: − If A stole a camera from B and sold it to C, the latter does not acquire the ownership of it because the thing was stolen. − If B picks up a camera in the street which had fallen off A’s briefcase without the latter having noticed that he dropped it (i.e. if the camera is a lost object) and B subsequently sells it to C, the latter does not acquire ownership over it because the owner was deprived of its possession by way of loss.

4

It is the case of subjective good faith. See above Law of Obligations, Introduction, Ch. A, III, 2. 5 Loss exists when an owner lost the possession of the thing owned without his will (see below Part Three, Ch. D, III, 3).

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However, if the stolen or lost things are money, titles to bearer (e.g. shares to bearer in a corporation, lottery tickets, etc.), or things sold in a public auction or in a fair or in the market, then the buyer does acquire ownership of them if he acts in good faith (Art. 1039 CC). Examples: − A stole from B’s office 1,500 euros and gave the money to his creditor C in order to pay off his debt. If C was in good faith, he does acquire the ownership of the money. − A stole from B’s office 10 shares to bearer in the corporation X and sold them to C. If C was in good faith, he acquires the ownership of the shares. − A stole a piece of jewelry from B and sold it to C, owner of a jewelry store. D bought that piece of jewelry from C’s store. C did not become the owner of the jewel, even if he was in good faith, because the thing was stolen. Nonetheless, D, if she was in good faith, did acquire ownership of the jewel because she bought it in a jewelry store, i.e. a place where things of this type are usually sold. D would not have acquired ownership, if she had bought that piece of jewelry at the florist’s or at the dry cleaner’s.

III. ORIGINAL WAYS OF ACQUISITION OF OWNERSHIP There is a variety of original modes of acquisition of ownership. Here we will refer to the acquisitive prescription, which is the most important of all, and two more: occupancy of a thing belonging to no one (res nullius), and finding of a lost object. 1. Acquisitive Prescription Acquisitive prescription (usucapio) is a way of acquiring ownership over a thing, movable or immovable, following the elapse of a designated period of time during which the person must have the thing in question in his possession with the intent to own it. The reasons for the institution of acquisitive prescription are the following: for a number of years the possessor has been putting the thing to use and maximizing its utility; additionally, third parties to whom the impression had thus been given that the possessor is also the owner would have been deceived if acquisitive prescription were not recognized. There are two kinds of acquisitive prescription, ordinary and extraordinary (longi temporis praescriptio and longissimi temporis praescriptio).

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A. Ordinary Acquisitive Prescription The prerequisites for ordinary acquisitive prescription are the following: thing susceptible of acquisitive prescription; possession of the thing; good faith; lawful title; and the elapse of a certain period of time (Art. 1041 CC). More specifically: a. Thing susceptible of acquisitive prescription In principle, all things are susceptible of acquisitive prescription. There are, however, things insusceptible of it or excluded from it: Things insusceptible of acquisitive prescription are the things ‘out of commerce’ (res extra commercium), as stipulated in Article 1054 of the Greek Civil Code, i.e. the things common to all (e.g. the air), the things destined for common use, and the things dedicated to serve public, municipal, communal, or religious purposes. Things excluded from acquisitive prescription are the things the law excludes for special reasons. Such things are the state-owned immovables, the municipality- or community-owned immovables, the immovables belonging to the church, and the things belonging to persons that are under parental care, tutelage, or judicial assistance.6 b. Possession of the thing Possession of the thing needs to exist throughout the time period designated for acquisitive prescription. c. Good faith The possessor is in good faith when without gross negligence he is convinced that he has acquired ownership (Art. 1042 CC).7 d. Lawful title Lawful title is every legal fact generally and in the abstract recognized by law as a means of acquiring ownership (e.g. contract transferring the ownership of a movable or an immovable) but which in the particular case did not confer ownership to the acquirer of the thing due to a certain defect. 6 7

See Georgiadis, op. cit., p. 414 et seq.; Spyridakis, op. cit., p. 625. Here too it is the case of subjective good faith (see above p. 393, footn. 4).

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Example: A sold B a farm and complied with all the provisions of the law, i.e. he sold it with a contract vested the notarial deed form and properly transcribed. If A, however, was not the owner of the farm, e.g. because he had simply believed that he had inherited it from his uncle, no transfer of ownership to B may take effect as far as immovables are concerned. The defect in this case is the fact that A, the transferor, was not the owner of the thing transferred to B, the acquirer.

e. Elapse of a designated period of time The designated period of time for acquisitive prescription is three years for movables and ten for immovables. B. Extraordinary Acquisitive Prescription The prerequisites for extraordinary acquisitive prescription are the following: a. thing susceptible of acquisitive prescription by possession; b. possession of the thing; c. elapse of a twenty year period regardless of whether the thing is movable or immovable. 2. Occupancy of a Thing Belonging to No one (res nullius) According to an express provision of the Greek Civil Code (Art. 1075) the person who takes possession of a derelict thing which belongs to no one becomes its owner. A thing is derelict if no one has the right of ownership over it. Things are derelict either because they never had an owner (wild animals while living in their natural habitat) or because they were abandoned by their owner with the intent on his part to waive his right of ownership over them. It is the case of abandoned movables. For example, A after having read the magazine he bought before going into the restaurant, left it on the chair upon leaving. There are no immovables belonging to no one because ipso jure they belong to the state (Art. 972 CC). 3. Finding of a Lost Thing A thing is lost when it went out of the sphere of the owner’s possession involuntarily. For example, A forgot the book he was reading on the chair of

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the restaurant; or, while B was walking in the street, a piece of jewelry fell off her purse. While for the acquisition of ownership over a derelict thing suffices for the acquirer to take it in his possession, for the acquisition of ownership over a lost thing more conditions need to concur. According to Articles 1081 et seq. of the Greek Civil Code the person who found a lost thing needs to notify without delay due to his fault the one who lost it or, if this is difficult, the police authorities. If the owner is found, the finder has every right to demand from him reimbursement for all the necessary expenses he incurred for the safekeeping or maintenance of the thing or for searching for the person having a right over it. The finder is also entitled to a reward. However, if one year elapses from the time of notification of the police authorities and the owner of the thing is not found, the finder acquires ownership of the lost and unclaimed movable. CHAPTER E LOSS OF OWNERSHIP The owner’s right over a thing owned may be lost either with or without the owner’s will, (voluntarily or involuntarily). 1. The ownership is lost voluntarily in case of transfer of the thing (e.g. sale, donation) as well as in case of abandonment of a movable thing. 2. The ownership is lost without the owner’s will, i.e. involuntarily, in case of physical destruction of the thing, if the thing became ‘out of commerce’, as well as in case the ownership of the thing passed to another by way of acquisitive prescription.

CHAPTER F PROTECTION OF OWNERSHIP I. GENERAL The offenses against ownership may be total, i.e. removal or withholding of the thing, or partial, i.e. preventing the owner from exercising his power over the thing without, however, removing the thing from him or retaining it. Examples: − A, the owner of a farm which he had not visited for some years, goes there one day and discovers that B had fenced it and built a small house in it where he resided along with his family (total offense against A’s ownership). − A is the owner of a farm in which there is a well. His neighbor B, without A’s permission, enters the farm and draws water from the well whenever he needs to do so (partial offense against A’s ownership).

II. MEANS OF PROTECTION Ownership is protected both by way of self-rule (private justice) and by way of legal action. 1. With regard to protection via self-rule, the General Principles of Civil Law (Arts. 282-284 of the Greek Civil Code) are applicable, i.e. selfredress and self-defense. 2. The legal protection of ownership includes the revendicatory action (rei vindicatio) and the negatory action (actio negatoria). More specifically: A. The revendicatory action is a remedy applied in case the offense of ownership took the form of eviction or withholding of the thing owned (Arts. 1094 et seq. CC). It is brought by the dispossessed owner against the

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possessing non-owner or detentor and aims at the recognition of his right of ownership and the restitution of the thing to him. B. The negatory action is an action brought by the owner against any person interfering with his ownership in ways that fall short of eviction or withholding of the thing owned (Art. 1108 CC). The negatory action is brought by the owner against the person disturbing his ownership and aims at securing a judgment ordering the suppression of the interference and an injunction for the future.

PART FOUR SERVITUDES CHAPTER A THE CONCEPT AND DISTINCTIONS I. THE CONCEPT Servitude (servitus) is the limited real right allowing the owner to draw some benefits from the substance of the thing. ∗

II. DISTINCTIONS There are two kinds of servitudes: Predial (or real) and personal. 1. Predial (or Real) Servitudes Predial (or real) servitude is the limited real right acquired on a certain immovable for the benefit of the person who at any given time is the owner of another immovable with the purpose of securing an advantage to the latter (Art. 1118 CC). The subject of the right of servitude is the person who at any given time is the owner of the dominant immovable. It follows from the above definition that: A. Real servitude may only exist on another’s immovable. It is not possible to have real servitude on a movable thing. The person’s immovable on which the servitude is constituted is called the servient tenement (praedium serviens). Regarding the easement of common law which is similar to the real servitudes of Greek property law, see Karibali – Tsiptsiou, op. cit., p. 157 (Translator’s note). ∗

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B. Real (predial) servitude is not constituted in favor of a specific person but of the person who at any given time is the owner of the other immovable. The immovable in favor of which the servitude exists is called the dominant tenement (praedium dominans). C. The servitude offers a certain benefit to the person who at any given time is the owner of the dominant immovable. In the Greek Civil Code are mentioned indicatively some real servitudes such as the right of way, the right of conveyance, drainage, drawing up water, grazing, etc. (Art. 1120 CC). Example: Of two neighboring farms, A and B, only farm A has access to the main road. It is possible to constitute real servitude, and more specifically the servitude of the right of way, in favor of the person who at any given time is the owner of farm B (the dominant immovable), so that the latter may pass through property A (the servient immovable) and reach the main road. If today’s owner of farm B, Mr. X, sells his farm to Mr. Y, the servitude of the right of way will be transferred to the new owner along with the ownership of the immovable sold. ∗

2. Personal Servitudes Personal servitude is the limited real right on a thing constituted in favor of a certain person securing various advantages to him. In personal servitudes the subject is a specific person, natural or legal. Personal servitudes are the usufruct, the habitation, and the limited personal servitudes. A. Usufruct Usufruct (ususfructus) is the limited real right of making use and enjoying the fruits or profits of a thing belonging to another, provided that the substance of the thing remains unaltered (Art. 1142 CC). The subject of usufruct is always a specific person called the usufructuary. The thing given in usufruct may be movable or immovable. However, it is also possible for a right to be given in usufruct (e.g. the right to intellectual property). The fact that the usufructuary may make full use and enjoy the fruits and profits of the thing results in ‘stripping’ the ownership of those powers. This is the case of agrarian immovables which are deprived of the necessary access to a road and are commonly called ‘blind’ immovables (Translator’s note). ∗

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Thus, the owner’s right gets limited to the alienation of the thing.1 The owner whose powers are ‘stripped’ in this fashion due to the existence of the servitude of usufruct is called ‘bare owner’.2 Example: A, who is the owner of an apartment, gives his apartment in usufruct to his son B. As a result of the constitution of the usufruct B, the usufructuary, has the right to use the apartment (i.e. live in it) and enjoy its fruits or profits (i.e. lease it), whereas the father, the ‘bare owner’, only has the right to sell it.

The meaning of the rule of law stipulating that the substance of the thing must be preserved unaltered is that the usufructuary must preserve the economic function that the thing had at the time of the constitution of the usufruct.3 Example: If A has the usufruct of an immovable which is used as a clinic, he cannot change the function of the immovable by turning it to a private school.

B. Habitation Habitation (habitatio) is the limited real right allowing the beneficiary to occupy another’s building, or an apartment therein, as a home (Art. 1183 CC). The beneficiary of a habitation may use the immovable belonging to another or an apartment therein solely for the purpose of residing in it; not as an office space. The person entitled to habitation has the right to inhabit the immovable along with his family and the domestic staff corresponding to his social standing (Art. 1184 CC). Only a natural person may be the subject of habitation. Example: A, the owner of an apartment, constitutes habitation on his apartment in favor of his grandson B, i.e. he allows his grandson and his family to live in it until the time of the grandson’s death.

1

The acquisition of usufruct or ‘bare ownership’ through an act inter vivos or mortis causa is a transaction subject to taxation; so is the exercise of the usufruct when it yields an income. See M. Karassis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 1142, No 34 et seq. 2 See above Part Three, Ch. B, II. 3 See M. Karassis, op. cit., Art. 1148, No 3.

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C. Limited Personal Servitudes Limited personal servitude is the limited real right on an immovable owned by another which gives some power or benefits to a specific person (Art. 1188, 1 CC). The content of these personal servitudes may be the same as that of any predial (real) servitude (Art. 1188, 2 CC). Example: Of two neighboring immovables, A and B, only A has access to the main road. In order for Mr. X, the current owner of immovable B, to gain access to the main road, a personal servitude to this effect is constituted in his favor whereby, by passing through a specific section of immovable A, Mr. X can reach the main road. If the servitude of the right of way is constituted in favor of only one specific person, as is the case in this example where the beneficiary is Mr. X, the current owner of immovable B, it is a limited personal servitude. Naturally, if the servitude were to be constituted in favor of the person who would be the owner of immovable B at any given time, then it would be a real servitude.

CHAPTER B CONSTITUTION OF SERVITUDES For the constitution of servitudes we need to distinguish between predial (or real) and personal servitudes. I. PREDIAL (OR REAL) SERVITUDES Predial or real servitudes are constituted by a juridical act or by acquisitive prescription (Art. 1121 CC). 1. Constitution of Servitude by Juridical Act The term ‘juridical act’ in the above definition of the law includes both the juridical act inter vivos and the juridical act mortis causa, i.e. the will. For a predial (real) servitude to be constituted by a transaction inter vivos it is necessary for the conditions required for the transfer of an immovable to concur. Specifically, the following are required:1 The person establishing the servitude must be the owner of the dominant tenement; an agreement between the owner of the dominant and the owner of the servient tenement needs to exist; lawful cause for the establishment of the servitude is required; the transaction must be executed in notarial deed form; the document must be transcribed (application by analogy of Art. 1033 CC). 2. Constitution of Servitude by Acquisitive Prescription For a predial (real) servitude to be constituted by means of acquisitive prescription there need to concur by analogy the same conditions required for the acquisition of ownership over an immovable by acquisitive 1

See Georgiadis, op. cit., Vol. II, 1993, p. 23 et seq.

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prescription, ordinary or extraordinary (application by analogy of Arts. 1041-1043 CC).2 II. PERSONAL SERVITUDES 1. Usufruct Usufruct is constituted by means of a juridical act or by acquisitive prescription (Art. 1143 CC). A. Constitution by Juridical Act The term ‘juridical act’ in the above definition of the law includes both the contract inter vivos and the juridical act mortis causa, i.e. the will. For the constitution of usufruct by means of a contract, the provisions referring to the acquisition of ownership are applicable by analogy.3 Specifically: For the constitution of usufruct on a movable, two things are required: agreement between the owner and the usufructuary that the use and enjoyment of the fruits or profits of the thing are transferred to the latter, and delivery of possession (application by analogy of Article 1034 of the Greek Civil Code). For the constitution of usufruct on an immovable the following are required: the person giving an immovable in usufruct needs to have ownership over it; the agreement between the parties must have a lawful cause; the agreement should be executed in notarial deed form; the agreement should be transcribed (application by analogy of Art. 1033 CC). B. Constitution by Acquisitive Prescription For the constitution of usufruct by acquisitive prescription the person possessing the thing needs to possess it with the intent to behave towards it as if he were the usufructuary. For the rest, the conditions for the acquisition of ownership by acquisitive prescription (ordinary or extraordinary) need to concur by analogy (application by analogy of Arts. 1041-1043 CC).4 2

See above Part Three, Ch. D, III, 1. See Georgiadis, op. cit., Vol. II, p. 56 et seq. 4 See above Part Three, Ch. D, III, 1. 3

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2. Habitation For the constitution of habitation the provisions on usufruct on immovables are applicable by analogy, provided they are compatible with the nature of habitation (Art. 1187 CC). 3. Limited Personal Servitude For a limited personal servitude to be constituted the provisions on predial servitudes are applicable by analogy, provided they are compatible with the nature of personal servitudes (Art. 1191 CC).

CHAPTER C EXTINCTION OF SERVITUDES Regarding the extinction of servitudes we also need to distinguish between predial (or real) and personal servitudes. I. PREDIAL (OR REAL) SERVITUDES The reasons for extinction of a real servitude are the renunciation of it by the beneficiary (Art. 1134, 1 CC), the total destruction of the dominant or the servient tenement (Art. 1135 CC), the impossibility of exercising the servitude (Art. 1136 CC), the non-use of it for twenty years (Art. 1138, 1 CC),1 and the merging of ownership on the two tenements, the dominant and the servient, in the same person (Art. 1137 CC). II. PERSONAL SERVITUDES 1. Usufruct The reasons for the extinction of a usufruct are the following: death2 of the usufructuary, unless otherwise stipulated (Art. 1167, 1 CC);3 dissolution of the legal person (Art. 1167, 2 CC); renunciation of it by the usufructuary 1

Regarding the non-use of a servitude for twenty years, see Georgiadis, op. cit., Vol. II, p. 47 et seq.; E. Dakoronia, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 1138-1141, No 2 et seq. 2 The judicial declaration of an absentee as a ‘missing person’ is equal to death (see Ap. Georgiadis, op. cit., Vol. II, p. 78). 3 Regarding the rule in Art. 1167, 1 CC that the extinction of servitude with the death of the usufructuary constitutes non-mandatory law, many objections have been raised. See Ap. Georgiadis, op. cit., Vol. II, p. 78 et seq.; K. Roussos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 1167, No 7 et seq.

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(Art. 1169 CC); merging of ownership and usufruct in the same person (Art. 1168 CC); destruction of the encumbered thing; impossibility of exercising the usufruct; twenty years of non-use (Art. 1170 CC). 2. Habitation For the extinction of habitation the provisions regarding usufruct on immovables are applicable by analogy, provided that they are compatible with the nature of habitation (Art. 1187 CC). 3. Limited Personal Servitudes For the extinction of a limited personal servitude the provisions on predial (real) servitudes are applicable, provided that they are not incompatible with the nature of habitation (Art. 1191 CC). However, it is necessary to emphasize here that, if the limited personal servitude is non transferable, it is extinguished upon the death of the beneficiary or when the legal person, in favor of which it was constituted, ceases to exist, i.e. upon its dissolution (Art. 1190 CC). CHAPTER D PROTECTION OF SERVITUDES I. In case of offense of the rights of predial or limited personal servitudes, which may consist in eviction or interference with their exercise, they are protected by a special action called confessory action (actio confessoria) which is brought by the beneficiary against the offender (Arts. 1132 and 1191 CC). II. In case of offense of the rights of usufruct or habitation, the provisions of the law for the protection of the right of ownership apply by analogy. Consequently, a ususfruct or habitation beneficiary has the revindicatory action, in case he is evicted from the possession or detention of the thing, and the negatory action (in case the exercise of his right is disturbed and interfered with (Arts. 1173 and 1187 CC).

PART FIVE REAL SECURITY RIGHTS The Greek Civil Code establishes two rights of real security: the pledge, which is constituted on a movable, and the mortgage, which is constituted on an immovable. The pledge and the mortgage are limited real rights securing the creditor’s claim (monetary or that can be assessed in money) by means of preferential satisfaction if the pledged movable or mortgaged immovable are sold in public auction because the debtor does not fulfill his performance at the time it falls due. CHAPTER A PLEDGE I. THE CONCEPT Pledge is the limited real right established on another’s movable to secure the creditor’s claim (monetary or that can be assessed in money) by means of preferential satisfaction in case the pledged thing is sold in public auction because the debtor does not fulfill his performance at the time it falls due (Art. 1209 CC). II. FEATURES The pledge has the following features:

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1. Only movables may be the object of the right of pledge. Usually the pledged movable belongs to the debtor. However, it may also belong to someone else who offers it in order to assist the debtor. The thing given in pledge must be within the realm of transactions, i.e. it must belong to the category of things that can be sold and bought. 2. Pledge is a real right aiming at securing a claim, i.e. it is an accessory right. Consequently, if the principal claim is null and void, so is the constitution of the pledge. 3. The right of pledge aims at the preferential satisfaction of the creditor from the auction proceeds of the thing pledged. In other words, if the claim is past due and the debtor does not furnish his performance, the right of pledge allows the creditor to satisfy his claim preferentially (i.e. before the other creditors are satisfied) by selling the thing in public auction. Agreements made before the secured claim is due and payable stipulating that, if the creditor’s claim is not satisfied in a timely fashion, he acquires the ownership of the thing, or that the creditor is exempt, in whole or in part, of the requirement to follow the process of public auction, are null and void (Art. 1239 CC). Example: A borrowed from B interest-free the amount of 2,000 euros and gave A his golden watch worth 4,000 euros for security. A also borrowed from C interestfree the amount of 1,500 euros without securing the second lender’s claim with a pledge. Because A did not pay off his debts, B caused the thing pledged to be sold in public auction and, after deducting the expenses, the proceeds of the auction amounted to 2,500 euros. How will B and C be satisfied? B will be satisfied preferentially and receive the amount of 2,000 euros; then C will be called to receive the remainder. In case there are no other creditors except for the creditor who has the security of pledge, what is left will go to A.

III. TYPES OF PLEDGE1 The pledge may result from a private agreement or from the provisions of the law. The pledge resulting from an agreement may be of the type of common pledge, governed by provisions of the Greek Civil Code, or of the type of pledge by registration (fictitious pledge), governed by L. 2844/2000. In the discussion that follows we will refer briefly to the above mentioned three types of pledge.

1

See Ap. Georgiadis, On Securing Credits, 2001, p. 526 et seq.

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1. Common Pledge Common pledge is the pledge the constitution of which requires on the one hand an agreement between the parties in notarial deed form, or in the form of a private document bearing an officially ascertained date, and on the other hand delivery of the thing pledged to the creditor. Articles 1209-1256 of the Greek Civil Code apply to the common pledge. 2. Fictitious Pledge (Pledge by Registration) Fictitious pledge (pledge by registration) is the type of pledge resulting from the parties’ agreement but not requiring delivery of the thing pledged; only the recordation of the agreement in special public records. The pledge by registration is mentioned in Article 1214 of the Greek Civil Code. However, up until L. 2844/2000 entered into force, this Civil Code provision was inactive. Nonetheless, special laws did exist establishing pledges by registration (e.g. the agrarian pledge, the vehicular pledge, the tobacco pledge, the cinematographic pledge, etc.). L. 2844/2000 established and regulated the pledge by registration, i.e. the pledge without delivery of possession of the thing and based solely on the written agreement between pledger and creditor which is recorded in special public records (Art. 3, para. 1, L. 2844/2000). This law, which entered into force on October 13, 2001,2 also abrogated all the provisions of special laws constituting pledges on movables without delivery in favor of certain types of creditors and claims (Art. 20, L. 2844/2000). 3. Legal Pledge Legal pledge is the pledge which is constituted without the parties’ agreement but ipso jure by the operation of the law. For example, the lessor, in order to secure his claim against the lessee for arrears in rent, has by law (legal pledge) a lien on the movables brought into the premises by the latter (Art. 604 CC). The same is true of the hotel owner, in order to secure his claim for rent against the guest, i.e. he has by law (legal pledge) a lien on the items brought into the hotel room by the guest (Art. 838 CC). The provisions governing a pledge constituted by agreement shall also be applicable by analogy to the legal pledge (Art. 1246 CC). 2

L. 2844/200 was modified by L. 2915/2001 and entered into force on October 13, 2001 (see PrD 74/2001 and PrD 253/2001).

CHAPTER B COMMON PLEDGE I. THE CONCEPT ‘Common’ pledge is the pledge for the constitution of which delivery of the thing to the creditor by the pledger is required and agreement between the parties that the creditor takes the thing in pledge. The agreement needs to be vested the form of a notarial deed or a private document with officially ascertained date. Moreover, the claim must be defined and the thing pledged described (Art. 1211 CC). II. CONSTITUTION OF THE PLEDGE For the common pledge to be constituted the following are required: 1. Ownership of the thing pledged by the pledger, i.e. the person giving the thing in pledge.1 2. Agreement between the owner of the thing, i.e. the pledger, and the creditor. 3. The agreement needs to take the form of either a notarial deed or a private document bearing an officially ascertained date.2 4. Delivery of the thing pledged to the creditor by the pledger.

1

Article 1215 of the Greek Civil Code provides an exception to this rule because it stipulates that, if the pledger is not the owner of the thing pledged, the right of pledge is acquired under the same conditions as the right of ownership on a movable is acquired by the non-owner (i.e. by way of application by analogy of the provisions of Art. 1036 et seq. CC). 2 A document may acquire an officially ascertained date in several ways. The most common way is by getting the document certified at the office of a notary public. In this case the official date of the document is the date of its certification by the notary public.

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III. RIGHTS AND OBLIGATIONS OF THE CREDITOR SECURED BY PLEDGE 1. Rights The rights of the creditor whose claim is secured by pledge are the following: A. He has the possession of the thing pledged (Art. 1211 CC). B. He is entitled to reimbursement for the expenses he incurred for improvement or maintenance of the thing (Art. 1225 CC). C. From the time the creditor’s claim became due and payable he is entitled to sell the thing in public auction in order to satisfy his claim from the proceeds of the sale (Art. 1237 CC). This is the most important right the creditor has. 2. Obligations The obligations of the creditor whose claim is secured by pledge are the following: A. The creditor has the obligation to safeguard the thing. Without the owner’s consent, the creditor does not have the right to use the thing pledged (Art. 1224 CC). B. The creditor must restitute the thing pledged to the pledger when his debt is paid off (Art. 1232 CC). This is the most important obligation the creditor has. IV. CONSTITUTION OF MORE THAN ONE RIGHT OF PLEDGE ON THE SAME THING It is possible for one and the same thing to be the object of more than one pledge in order to secure more than one claim of the same creditor or of different creditors. The thing pledged may be delivered to a third party or to one of the several creditors. Example: On a painting owned by A more than one pledge were constituted in favor of his creditors B, C, and D. The painting may be delivered either to one of the three creditors or to a third party, e.g. to T.

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The right of pledge that was constituted first is the strongest of all. This means that, in case of forcible execution resulting in sale of the thing in public auction, the proceeds of the auction, after deducting the expenses of the execution, are used to satisfy the creditors by order of priority determined by the date of constitution of each pledge (Art. 1250 CC). Example: On May 1st, A, the owner of a painting, constituted a right of pledge on it in favor of his creditor B to whom he owed 2,000 euros. On the same painting A constituted a second right of pledge on July 1st of the same year in favor of his creditor C to whom he owed 1,500 euros, and on August 1st of the same year he constituted yet another right of pledge in favor of his creditor D to whom he owed 1,000 euros. Because A did not pay any of his debts, his painting was sold in public auction and, after deducting the amount of the expenses of the execution, the proceeds of the auction sale amounted to 3,000 euros. Creditor B will be fully satisfied, creditor C will receive 1,000 euros, and creditor D will not receive anything. If the sale of the painting were to yield 4,000 euros, B and C would be fully satisfied and D would receive 500 euros. If the sale of the painting were to yield 5,000 euros, all three creditors would be fully satisfied and the remaining 500 euros would satisfy other creditors of A, if any, or be given to A himself as the remainder. ∗

V. EXTINCTION OF THE RIGHT OF PLEDGE A right of pledge may be extinguished in the following ways: 1. By extinction of the claim for the sake of which it was constituted (Art. 1243, 1 CC). A claim is extinguished by payment, other performance in lieu of payment, public deposit, etc. 2. By restitution of the thing pledged to the pledger by the creditor (Art. 1243, 2 CC). 3. By the creditor’s unilateral declaration to the pledger or the owner of the thing pledged that he renounces his right of pledge (Art. 1243, 3 CC). 4. By the merging of the right of ownership and the right of pledge in the same person (Art. 1243, 4 CC).

This is the so-called hyperocha of the Roman law meaning surplus (from the Greek word hyperoche/υπεροχή). See Petropoulos, op. cit., p. 771 (Translator’s note). ∗

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VI. PROTECTION OF THE RIGHT OF PLEDGE If the creditor having the right of pledge is offended, he is protected in the same way the owner is protected: with the revendicatory action, in case the offense consists in removal or withholding of the thing pledged, and with the negatory action, in case the offense consists in infringement on his right (Art. 1236 CC).

CHAPTER C FICTITIOUS PLEDGE (PLEDGE BY REGISTRATION) I. THE CONCEPT As was already mentioned, the constitution of fictitious pledge on a movable thing, i.e. pledge without delivery of its possession, is possible following a written agreement between creditor and pledger. II. LIMITATIONS IN THE CONSTITUTION OF FICTITIOUS PLEDGE L. 2844/2000 set certain limitations for the constitution of fictitious pledge. These limitations pertain to the types of persons capable of concluding this type of contract, the types of claims secured, and the types of things given in pledge.1 More specifically: 1. Regarding the contracting parties, both the creditor taking a thing in pledge and the pledger must be either enterprises or businessmen.2 2. Regarding the claims secured by such pledge, it is expressly stated in the law that “the security is granted for the needs of the enterprise or the business of the debtor.”3 3. Finally, as regards the types of things given in pledge, all movables may be pledged in this fashion except for money, negotiable instruments, household items, and movables susceptible of independent mortgage, such as ships and aircrafts.4 1

See Ap. Georgiadis, On Securing Credits, op. cit., p. 550 et seq. See Art. 1, para. 1 L. 2844/2000. 3 See above footn. 2. 4 See Art. 2, para. 1, subpara. 1 L. 2844/2000. 2

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III. ADVANTAGES OF FICTITIOUS PLEDGE The pledge without delivery has several advantages. For example: 1. The pledger, by staying in possession of the movables given in pledge (usually either things that are incorporated in his business, such as machinery, or things that are valuable for the operation of the business), is not forced to suspend operations. 2. The creditor, by leaving the movable things in the pledger’s possession, does not have to incur expenses for their safeguarding. 3. With the publicity system established by L. 2844/2000 transparency is guaranteed which strengthens the security of transactions because it provides with stable and just criteria, basically regarding the time of the constitution of a pledge, thus offering a solution to the issue of priority among several creditors with claims that are secured by pledge. IV. CONSTITUTION OF FICTITIOUS PLEDGE For a fictitious pledge to be constituted the following conditions need to concur: 1. ownership of the thing pledged by the pledger; 5 2. agreement between the owner of the thing pledged and the creditor; 3. written document for the parties’ agreement;6 4. publication of the pledge, i.e. recordation of the written document of the pledge agreement in the special public records kept at the registry of pledges7 which is located at the creditor’s place of domicile or headquarters.8

5

In the case of fictitious pledge (pledge by registration) the Article 1215 of the Greek Civil Code applies by analogy, as follows from the combination of Arts. 6, para. 3, and 8, para. 1 L. 2844/2000 (see above Ch. B, II, footn. 1). See Georgiadis, op. cit., p. 552. 6 See Arts. 1, para.1, and 3, para.1 L. 2844/2000. The signature of the parties is certified by the registrar of pledges, unless earlier certified by the police authorities, other public service, or by a notary public (see Art. 3, para. 1, subpara. 2 L. 2844/2000). 7 Registry of pledge offices will be instituted by a PrD issued upon proposal of the Minister of Justice. Until such offices are instituted, according to Art. 3 L. 2844/2000, the recordation will be made at the office of the land deed conveyance records or at the land registry (Art. 19, para. 1 L. 2844/2000). 8 If the creditor does not have his domicile or headquarters in Greece, the registration is made at the office of the Athens registry of pledges (Art. 3, para. 1, subpara. 3 L. 2844/2000).

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V. DURATION OF FICTITIOUS PLEDGE The right of fictitious pledge is extinguished after ten years from the time of its recordation in the special public book. It is possible, however, for it to be renewed for another ten years.9 VI. PRIORITY AMONG CREDITORS OF FICTITIOUS PLEDGES If several fictitious pledges have been constituted on the same thing, the time of their recordation in the special public registry determines their order of priority.10 In other words, what holds for real securities in general, i.e. that the order of priority is determined by the chronological order of the recordation of the relevant acts (prior tempore potior jure),11 also holds for the pledge by registration. Pledges registered on the same day are considered of equal rank and the creditors are satisfied pro rata.12 VII. SPECIAL OBLIGATIONS OF THE PLEDGER In view of the fact that in the fictitious pledge the thing pledged remains in the hands of the pledger, L. 2844/2000 provides for some special obligations for the pledger. Specifically, the pledger has the following obligations: 1. To allow the creditor to check on the thing pledged regarding its existence or condition every six months on a regular basis as well as when there is important reason for it.13 2. Not to transfer the ownership of the thing pledged and not to give it to a third party for any reason without the creditor’s consent. 3. Not to move the thing pledged to another place or change its use without the consent of the creditor.

9

See Art. 4, para. 1 L. 2844/2000. See Art. 6, para.1, subpara. 2 L. 2844/2000. 11 See Arts. 1217, 1272, and 1300 CC. 12 See Art. 6, para. 1, subapara. 2 L. 2844/2000. It is possible for the rank of the creditors to be changed following a written agreement between two or more secured creditors subject to the provisions for publication stipulated in Art. 3 of L. 2844/2000 (see Art. 6, para. 2 L. 2844/2000). 13 The inspection is done by a process-server (marshal) appointed by the creditor (Art. 7, para. 1, subpara. 2 L. 2844/2000). 10

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In case of substantial violation of the above on the part of the pledger, the creditor may call the debt due and payable by notifying the pledger accordingly.14 VIII. SUPPLEMENTAL AND ‘BY ANALOGY’ APPLICATION OF THE PROVISIONS OF THE GREEK CIVIL CODE The fictitious pledge (or pledge by registration) is governed by L. 2844/2000. However, according to a special express provision of the law,15 any vacuum (lacuna) not covered by it is covered by the Articles of the Greek Civil Code concerning the common pledge and the mortgage, applied supplementally and by analogy.16

14

See Art. 7, para. 3 L. 2844/2000. See Art. 8 L. 2844/2000. 16 See Georgiadis, op. cit., p. 559 et seq. 15

CHAPTER D MORTGAGE I. THE CONCEPT Mortgage is the limited real right (right in rem) established on another’s immovable to secure the creditor’s claim (monetary or that can be assessed in money) by means of his preferential satisfaction from the auction sale proceeds when the debtor does not fulfill his obligation at the time it falls due and the mortgaged immovable is sold in public auction (Art. 1257 CC). II. FEATURES The features of the mortgage are the following: 1. In principle, the right of mortgage is constituted only on immovables.1 Usually, the immovable over which the right of mortgage is constituted belongs to the debtor. However, it is possible for the immovable to belong to a third party who, wishing to assist the debtor, offers an immovable of his own to be mortgaged in order to secure the creditor’s claim against the debtor. The immovable on which the right of mortgage is constituted must belong to the category of immovables which can be sold, i.e. it should not be a thing outside the realm of transactions. 2. The right of mortgage is created to secure a claim, i.e. it is an accessory right to the claim secured. Consequently, if the main obligation is null and void, so is the establishment of the mortgage.

1

Exceptionally, ships and sea-vessels may be mortgaged (Article 195 et seq. of the Code of Private Maritime Law). See Ap. Georgiadis, op. cit., Vol. II, p. 133.

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3. The right of mortgage aims at providing the creditor with a preferential satisfaction of his claim from the auction sale proceeds of the immovable sold in this fashion. In other words, if the debtor does not pay his debt when it falls due, the right of mortgage allows the creditor to be satisfied preferentially from the sale of the mortgaged immovable in a public auction. Example: A has four creditors and he owes B the amount of 30,000 euros, C the amount of 6,000 euros, D the amount of 15,000 euros, and E the amount of 9,000 euros. A has an immovable worth 60,000 euros. If A does not pay any of his debts and none of his creditors has a mortgage on his immovable, in case of sale of A’s immovable by public auction, all of his creditors will be satisfied proportionally. For example, if the auction sale proceeds, after deduction of the expenses, amount to 30,000 euros, proportional satisfaction of the creditors means that B will receive 15,000 euros, C 3,000 euros, D 7,500 euros, and E 4,500 euros. But if B had a mortgage on A’s immovable, he will be satisfied preferentially, i.e. he will in this case take all of the auction sale proceeds, 30,000 euros. If D had a mortgage on A’s immovable, his claim will be satisfied in full, i.e. he will receive 15,000 euros, and the rest of the creditors will be satisfied proportionally from the remaining 15,000 euros.

III. CONSTITUTION OF A MORTGAGE For the right of the mortgage to be created two things are required: title, i.e. the legal ground conferring to the creditor the right to acquire a mortgage, and recordation of it in the public books of mortgages (Art. 1260 CC). More specifically: 1. Title for the Constitution of a Mortgage Title is the legal ground which confers to the creditor the right to acquire a mortgage. According to Article 1261 of the Greek Civil Code, titles granting the creditor the right to acquire a mortgage are the law, a court decision, and the private will. A. According to Article 1262 of the Greek Civil Code, title by law to acquire a mortgage belongs to creditors such as the following: the state on the immovables of its debtors for claims relating to arrears in taxes; the persons placed under parental care or tutelage on the immovables of their parents or tutors for claims stemming from the management of their

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property by the latter; each spouse for his claim on the increments, i.e. claim concerning increases in the assets of the other spouse according to Article 1400 of the Greek Civil Code,2 etc. B. Title by court judgment is conferred by final non appealable court decisions ordering payment of a sum of money or adjudicating a claim that can be assessed in monetary terms (Art. 1263 CC). C. Title by private will is conferred by the debtor or a third party in favor of the debtor. However, for a mortgage by private will to be constituted the following need to concur: a. The grantor of the mortgage must be the owner of the immovable (Art. 1265 CC). b. The right of mortgage must be granted by way of a unilateral declaration before a notary public. The immovable to be mortgaged should be identified in this declaration (Art. 1266 CC). 2. Recordation of the Title in the Mortgage Records Recordation of the title in the mortgage records means the recordation of the mortgage in a special public book, the book of mortgages, kept at the registry office of land deeds of the district in which the immovable is situated (Art. 1268 CC). Each recordation of a mortgage must be precisely determined, both in terms of the claim it is relevant to and in terms of the immovable on which the right of mortgage is established. IV. DEBTOR’S RIGHTS OF THE CLAIM SECURED BY MORTGAGE The debtor whose debt is secured by mortgage has the following rights: 1. The right to full use and usufruct of the mortgaged immovable. This means that he is entitled to use the immovable himself, lease it, transfer it, etc.3 2. The right to demand a reduction of the amount of the claim secured by mortgage to the appropriate level (Art. 1269, 3 CC). 3. The right to demand for the mortgage to be limited to a lesser number of his immovables than were originally included in the constitution 2

See below Family Law, Part One, Ch. D, II, 2. See A. Kritikos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 1257, No 5 et seq. 3

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of the mortgage, i.e. to as many immovables as are necessary to secure the creditor’s claim (Art. 1270 CC). V. CREDITOR’S RIGHTS OF THE CLAIM SECURED BY MORTGAGE The rights of the creditor of a claim secured by mortgage are the following: 1. In case his claim is not satisfied, he may demand the sale of the mortgaged immovable by public auction in order for his claim to be preferentially satisfied from the auction sale proceeds. This is the most important right of the creditor. 2. He also has the right to avert the deterioration of the mortgaged immovable (Arts. 1284, 1299 CC). 3. Finally, he has the right to insure the mortgaged immovable at the debtor’s expense (Arts. 1285-1286 CC). VI. MORE MORTGAGES ON THE SAME IMMOVABLE According to express provision of the Greek Civil Code (Art. 1290), granting a mortgage on an immovable does not deprive the owner of the right to constitute further mortgages in favor of other creditors on the same immovable. In case of multiple mortgages encumbering the same immovable, there is ranking of mortgages according to the time each of them was recorded (Art. 1272 CC). The priority among the various mortgagees is determined according to the chronological order of recordation of each mortgage (prior tempore potior jure). Consequently, in forcible execution this order also determines the order of preferential satisfaction of the various creditors from the proceeds of the auction sale (Arts. 1300 CC). Mortgages recorded on the same day are considered of equal rank and the creditors are satisfied pro rata (Art. 1301 CC). Example: A has several creditors. He also has an immovable worth 65,000 euros. From A’s creditors, B to whom A owes the amount of 15,000 euros has established 1st mortgage on the debtor’s immovable; C to whom A owes the amount of 25,000 euros has established a 2nd mortgage on the same immovable, and D to whom A owes the amount of 10,000 euros has established a 3d mortgage on the same immovable. In case A does not pay any of his debtors and his immovable which is sold in public auction yields 45,000 euros (after deducting the execution costs), creditors B and C will be satisfied in full, whereas creditor D only in part.

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In the same example, if the immovable yields 60,000 euros net, all three creditors secured by mortgage will be satisfied in full and the remaining 10,000 euros will either be proportionally distributed among the debtor’s other creditors, if any, or given to A in replacement of the thing.

VII. THE LIFTING OF A MORTGAGE Lifting of a mortgage means the extinction of the right of mortgage plus its deletion, i.e. the cancellation of its recordation. More specifically: 1. Extinction Extinction is the obliteration of the right of mortgage. There are several reasons why the right of a mortgage may be extinguished: extinction of the claim that the mortgage used to secure (Art. 1317 CC), which may be effected by way of payment, other performance in lieu of payment, set off, etc.; total disappearance of the mortgaged immovable (Art. 1318, 1 CC); renunciation of the right of mortgage by the creditor (Arts. 1318, 2 and 1319 CC); sale of the mortgaged immovable in public auction and payment of the proceeds of the auction (Art. 1318, 3 CC); merging of the right of ownership and the right of mortgage in the same person (Art. 1321 CC), etc. 2. Deletion Deletion of mortgage is the act of the registrar of mortgages by which he strikes out the recordation of the mortgage in the public record of mortgages. Extinction of the right of mortgage by itself does not suffice to lift the mortgage; it needs to be accompanied by deletion of its recordation in the public books. Deletion may be done in the following ways: 1. With the consent of the creditor secured by mortgage (Art. 1324 CC). 2. With a final non appealable court decision ordering the deletion (Arts. 1324 and 1327 CC). 3. At the request of the highest bidder in case of extinction of the mortgage by way of sale of the mortgaged immovable in a public auction (Art. 1005, para. 3, subpara. 2 CCPr.). Upon deletion the lifting of the real security of mortgage is finalized.

CHAPTER E PRENOTICE OF MORTGAGE I. THE CONCEPT Prenotice of mortgage is a temporary mortgage which may be turned to permanent. Prenotice of mortgage is mortgage under the suspensive condition on the one hand of the final non appealable court decision which would adjudicate to the creditor the claim for the security of which this ‘preliminary’ mortgage was granted, and on the other hand of the timely conversion of the prenotice of mortgage to mortgage. Prenotice of mortgage solely confers a priority right for the acquisition of a mortgage (Art. 1277, 1 CC). Before its conversion to mortgage, the prenotice of mortgage does not bring about the results of real security. However, after the adjudication of the claim to the creditor by a final non appealable judgment, the prenotice of mortgage is converted to mortgage which is deemed established as from the date of establishment of the prenotice of mortgage (1277, 2 CC). II. CONSTITUTION OF PRENOTICE OF MORTGAGE The requirements for establishing prenotice of mortgage are lawful title for prenotice of mortgage and recordation of it in the mortgage records.

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1. Title Required for the Constitution of Prenotice of Mortgage The court judgment issued through the procedure of provisional remedies constitutes title for establishing prenotice of mortgage.1 2. Recordation of the Title Just like a mortgage, the prenotice of mortgage is recorded in the public mortgage records kept in the district where the immovable is located (Art. 1276 CC). III. CONVERSION OF PRENOTICE OF MORTGAGE TO MORTGAGE For the conversion of prenotice of mortgage to mortgage the following is required: 1. Final non appealable court decision adjudicating the claim to the creditor who has been secured by such real security (Art. 1277, 2 CC). 2. Conversion of the prenotice of mortgage to mortgage which needs to take place within ninety days as from the time the decision has become final non appealable. If the creditor does not act within this time frame, the right of prenotice of mortgage is extinguished (Art. 1323, 2 CC). At this point it needs to be noted that, when the prenotice of mortgage is converted to mortgage, the mortgage is deemed established as from the date of establishment of the prenotice of mortgage (Art. 1277, 2 CC). Example: On the immovable of debtor A the following real securities have been established by his creditors: a mortgage by B for a claim for 15,000 euros established on January 5, 2004; a prenotice of mortgage by C for a claim for 30,000 euros established on February 10, 2004; and a mortgage by D for a claim for 20,000 euros established on March 15, 2004. On September 15, 2004 C’s prenotice of mortgage was converted to mortgage. The rank of mortgages now is as follows: first mortgage in favor of B, second mortgage in favor of C, and third mortgage in favor of D.

IV. LIFTING OF THE PRENOTICE OF MORTGAGE A prenotice of mortgage is lifted by extinction and deletion.

1

See Art. 1274 CC in conjunction with Arts. 682 et seq. and 706 CCPr. See Ap. Georgiadis, Property Law, Vol. II, op. cit., p. 180.

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1. Extinction A prenotice of mortgage is lifted not only for the reasons a mortgage is lifted but also with the revocation of the court judgment ordering it, as well as if the prenotice of mortgage was not converted into mortgage within ninety days as from the date the court decision adjudicating the claim to the creditor became final non appealable (Art. 1323 CC). 2. Deletion Deletion is the act of the registrar of mortgages by which a prenotice of mortgages is stricken out of the books of recordation. The reason for this requirement is because the extinction of the right to prenotice of mortgage needs to be accompanied by deletion of its recordation. The prenotice of mortgage may be deleted in the following ways: A. with the consent of the creditor (Art. 1330, 1 CC); B. if a court decision is produced revoking the decision which had earlier ordered the recordation of prenotice of mortgage or ordering its deletion (Art. 1330, 2 CC); C. if ninety days elapsed from the date of the final non appealable decision adjudicating the creditor’s claim and the prenotice of mortgage was not converted into mortgage (Art. 1330, 3 CC).

PART SIX THE PUBLICITY OF REAL RIGHTS REGARDING IMMOVABLES The need for protection of transactions regarding immovables and for respect of the real rights over them, has dictated the publicity of real transactions concerning immovables. The two basic systems of publicity in the transactions concerning immovables are: A. The system of formal publicity of the public books of recordation (subjective system). B. The system of substantive publicity of the land registry (objective system). CHAPTER A THE SYSTEM OF THE PUBLIC BOOKS OF RECORDATION I. THE OPERATION OF THE SYSTEM In today’s Greece the principle of publicity is served by the system of the public books of recordation where the transactions establishing, transferring, and abolishing the right of ownership or servitudes on immovables are transcribed. The recordation of such transactions is done at the recordation office of the district where the immovable is located (Art. 1192 et seq. CC).1 1

Regarding mortgage (establishment, transfer, change, and extinction), the Greek Civil Code (Arts. 1260, 1268 et seq., 1300 et seq., and 1333 et seq.) requires for it to be ‘recorded’ in special books, the books of mortgages.

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The time of recordation determines the temporal priority of the changes effected in real rights (Art. 1194 CC). According to an express rule of the Greek Civil Code (Art. 1198), without recordation in the cases where it is required, no transfer of ownership on an immovable or the constitution, transfer, and abolition of a real right on it may be effected.2 The books of recordation are public and accessible to anyone wishing to consult them (Art. 1200 CC). The recordation system is a person-centered system because it is based on an individual recordation roll, accessible through an alphabetical index, which reflects the real transactions concluded by persons on immovables. Example: If A wishes to sell an immovable of his to B, the latter must conduct a search regarding the legal status of the immovable. To do this he needs to go to the recordation office of the district where the immovable is located and look up A’s name in the general alphabetical index of the persons having executed real transactions associated with immovables. This will refer him to the index of the individual recordation roll of real transactions on immovables entered into by the seller in question and subsequently to the books of recordation where all related notarial deeds are kept.

II. THE DISADVANTAGES OF THE SYSTEM The system of the public books of recordation does not secure the substantive publicity of real rights on immovables. The reason for this is that it is possible for the same immovable to have been transferred more than once by persons not mentioned in the section of the individual recordation roll that the interested party is investigating. Besides, for a real transaction to be recorded no substantive search of the titles presented is required. Consequently, it is not certain that the seller is indeed the owner of the immovable or has the right to dispose of it. Thus, for the search of titles it is customary for the interested party to go back twenty years (through a series of transfers) in order to cover the time period required for extraordinary acquisitive prescription.

2

See above Part Three, Ch. D, II, 1, E.

CHAPTER B THE SYSTEM OF LAND REGISTRY I. THE OPERATION OF THE SYSTEM In the system of land registry the interested party conducts his search of the titles through an index of the immovables themselves. The land registry system is land-centered. There is an index of immovables where every immovable appears under a National Land Registry code number. To every immovable corresponds a section in the land registry book where all the real right changes concerning the specific immovable are registered.1 Greek L. 2664/1998 provides for gradual introduction of the National Land Registry system to the lands which each time are being placed under it.2 According to Article 1, para. 1 of L. 2664/1998, as modified by Article 2, para. 1 of L. 3127/2003, the National Land Registry system consists of a system of legal, technical, and other additional information organized on a land-centered basis regarding immovables throughout the state. More specifically: In the land registry are recorded legal and technical information aiming at a precise determination of the boundaries of the immovables and the publicity of the rights and encumbrances that need to be recorded in land registry books, so that public faith may be secured and parties who in good 1

See Art. 10 et seq. L. 2664/1998, as modified by Art. 2, paras. 6 et seq. L. 3127/2003. Regarding the land registry, see P. Mattheou, The National Land Registry: Legal Dimensions, 2000. 2 The only area of Greece in which a land registry system had earlier been at work is the island group of Dodecanese. In Rhodes, Kos, and the Municipality of Porto-Lago in Leros the land registry system had been introduced since the Italian occupation and was preserved by L. 510/1947.

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faith conclude transactions after having consulted such public registers3 may be protected. Since the law on National Registry entered into force, in each of the lands where the land registry system was introduced (according to L. 2308/1995) the previously existing systems of public recordation of the real transactions and of the constitution of mortgages is replaced by the new system (Art. 1, para. 3 of L. 2664/1998). II. THE PRINCIPLES OF THE LAND REGISTRY SYSTEM The land registry is governed by the following principles:4 A. The principle of land centered organization of the information concerning the land; this requires the drawing up of diagrams of the land, keeping record of them, and constantly updating them. B. The principle of exercising control over the legality of the titles and other necessary prerequisites before accepting an application for registration in the land registry books. Consequently, the content of the land registry is presumed accurate. This presumption is non-rebuttable as far as the first registration5 is concerned and rebuttable as to the subsequent ones.6 C. The principle of securing the order of registrations in the land registry according to the time of submission of the relevant applications (principle of temporal priority, prior tempore potior jure). D. The principle of publicity of the land registry books. E. The principle of securing public trust, so that everyone transacting in good faith and counting on the registrations made in the land registry books may be protected. F. The principle of suitability of the land registry as a system lending itself to the registration of other additional types of information at any time in the future (principle of openness of the land registry).

3

See Art. 1, para. 2 L. 2664/1998. See Art. 2 L. 2664/1998. 5 See Art. 7 L. 2664/1998. See L. Kitsaras, The First Recordings in the National Land Registry, 2001. 6 See Art. 8 L. 2664/1998, as modified by Art. 2, para. 5 L. 3127/2003. 4

5. Family Law

INTRODUCTION I. THE CONCEPT OF FAMILY LAW AND FAMILY RELATIONSHIPS Family law is the sum total of the rules of law regulating family relationships. By the term ‘family relationships’ we mean the relationships created in the context of the family. In the Greek Civil Code there is no definition of the term ‘family.’ It is, however, widely accepted that the term means the ‘legal family,’ i.e. the family based on marriage. The ‘natural family,’ i.e. the family based on cohabitation, is not regulated in the Greek Civil Code. More specifically, it should be mentioned that, in view of the fact that cohabitation is considered a real condition, not regulated by the Civil Code, the law has no provisions concerning the relationships between cohabitants. Nonetheless, both the jurisprudence and the scholars specializing in issues of family law try to give solutions to the various problems that emerge.1 However, as far as the legal consequences of cohabitation regarding the children born out of such unions, the Greek Civil Code has provisions concerning the acknowledgement of children born out of wedlock.2 Another type of family is the ‘adoptive family’ based on adoption. A special chapter of the Greek Civil Code refers to this type of family (Arts. 1542-1588 CC).

1

See P. Agallopoulou, “Cohabitation and One-parent Families According to Greek Law,” in International Family Law, March 2003, pp. 24 et seq. (in English). 2 See below Part Two, Ch. C, III, 2.

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II. REFORMS OF GREEK FAMILY LAW The Greek family law, which was outdated even at the time of its inception, has undergone significant reforms in the last twenty years. The radical reforms which took place in this branch of Civil Law were absolutely necessary for the law to accurately reflect the social conditions of modern times. Besides, it should not be overlooked that during the last several years nearly all the European legal systems were also reformed. Today, Greek family law constitutes one of the most avant-garde European legal systems of family law with an emphasis on the equality of the sexes and the respect of the personality of each and every member of the family. The following laws have significantly reformed Greek family law: 1. L. 1250/1982 which established the civil marriage alongside the religious one. 2. L. 1329/1983 which, in addition to establishing the equality of sexes, following the constitutional imperative, also made other changes in the Greek Civil Code, especially as regards family law.3 3. L. 2447/1996 which radically restructured the institutions of adoption and tutelage, replaced the antiquated institutions of judicial interdiction and judicial supervision by the contemporary institution of judicial assistance, and introduced the institution of foster care for children under age. At this point it is worth mentioning that L. 2447/1996 also established in the courts which rule on matters of substance a special division having exclusive competence in all cases of family law. Moreover, it instituted in every Court of First Instance a social service to assist this special division of the court with its work through specialized organs acting as an interdisciplinary team. 4. L. 3089/2002 on medically assisted human reproduction which regulates the conditions under which medically assisted reproduction may take place and its consequences in matters of descent. III. THE CHARACTERISTICS OF FAMILY LAW 1. The main characteristic of the rules of family law is that many of them constitute mandatory law (jus cogens) or law of public order. Thus, for

3

See above General Principles, Introduction, II.

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example, it is not possible to agree on new grounds for divorce or give the concept of parental care a different content. 2. Another characteristic of many of the rules of family law is that they are formal, i.e. they require compliance with certain form. This is, for example, the case as regards the solemnization of marriage (religious or civil), the acknowledgement of a child born out of wedlock, the adoption etc. 3. Moreover, family law has a certain ‘ethnic’ character because it is closely related to the traditions of the people. In recent years, however, this trait constantly diminishes, due to the fact that the basic rules of family law tend to become almost uniform in all European countries.4

4

Regarding the traits of family law, see G. Michailidis – Nouaros, in ERMAK, General Introduction to Family Law; A. Gazis, Introductory remarks to family law, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Vol. VII.

PART ONE MARRIAGE Marriage is a sui generis contract between two heterosexual persons resulting in legal consequences. Before referring to the conditions required for marriage, we would like to mention that marriage is often preceded by an agreement to marry, the engagement. Engagement is the agreement for a future marriage which does not give rise to legal action aiming at compelling the other party to fulfill his performance (Art. 1346, 1 CC). In other words it is the case of an imperfect or natural obligation.1 CHAPTER A REQUIREMENTS FOR VALID MARRIAGE The requirements for valid marriage are distinguished in positive requirements and impediments. I. POSITIVE REQUIREMENTS The following are positive requirements for valid marriage: 1. Sex Difference The parties to a marriage must be respectively male and female. It is prohibited to persons of the same sex to contract marriage. 1

See above Law of Obligations, Introduction, Ch. B, IV.

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2. Legal Age The parties to a marriage must have completed eighteen years of age (Art. 1350, 2, 1 CC). Exceptionally, parties under eighteen may contract marriage, if the court estimates that there is important cause for it and grants them special permission to this effect (Art. 1350, 2, 2 CC). For example, pregnancy constitutes important cause. 3. Capacity to Conclude Marriage According to Article 1351 of the Greek Civil Code, persons who may not conclude marriage are: A. those under privative judicial assistance in whole; B. those under privative judicial assistance in part to whom marriage is specifically forbidden;2 C. those who, according to Article 131 of the Greek Civil Code, are temporarily incapacitated to conclude juridical acts.3 II. IMPEDIMENTS The impediments to contracting marriage are the following: 1. Previously Existing Marriage As expressly stated in Article 1354 of the Greek Civil Code, it is prohibited to contract marriage before the previously existing marriage is irreversibly dissolved or annulled. 2. Blood Relationship4 Marriage between certain relatives related by blood (consanguinity) is prohibited. Such is the case of blood relatives in lineal relationship without 2

A person under concurrent judicial assistance, in whole or in part, which extends to marriage, may contract marriage only with the consent of his judicial assistant (Art. 1352, 1 CC). If the latter refuses to consent, the court may, after hearing him, give permission for the marriage to be concluded provided that this is in the interest of the person under judicial assistance (Art. 1352 CC). 3 Regarding temporary incapacity to conclude juridical acts, see above General Principles, Part Three, Ch. C, II. 4 See below Part Two, Ch. B.

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any limitation and in collateral relationship up until the fourth degree included (Art. 1356 CC), i.e. up to the degree of first cousins. 3. Relationship by Marriage Alliance5 Contracting marriage is prohibited between relatives by marriage alliance (affinity) in lineal relationship without any limitation and in collateral relationship up until the third degree included (Art. 1357 CC), i.e. marriage with the spouse’s parent or sibling. At this point it should be noted that the relationship by marriage alliance persists even after the dissolution or annulment of the marriage it was created by (Art. 1462, 2 CC). 4. Relationship Resulting from Adoption Contracting marriage is prohibited between the person who adopted and his descendants and the person who was adopted (Art. 1360, 1 CC).6 At this point it should be noted that the impediment persists even after the dissolution of the adoption (Art. 1360, 2 CC).

5

See below Part Two, Ch. B. After the reform of the Greek Civil Code by L. 2447/1996, the impediment of Article 1360 of the Civil Code only refers to the case of adoption of adults. Because in the case of the adoption of a minor, Articles 1356 and 1357 are applicable, i.e. the impediment exists by virtue of the existence of prohibited degree of family relationship (blood relationship or relationship by marriage alliance) with the relatives of the adoptive parent in view of the fact that, according to Article 1561, 1 of the Civil Code, the adopted child is fully integrated in the family of the adoptive parent. The impediment to marriage on account of blood relationship or relationship by marriage alliance continues to exist with the natural family of the adopted (Art. 1561, 1 CC). See Th. Papachristou, Manual of Family Law, 2nd ed., 1998, pp. 36 et seq.; K. Panagopoulos, Family Law, 1998, p. 22 et seq.; P. Filios, Family Law, Vol. I, 2003, p. 67; Th. Papachristou, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 1561-1562, No 3 et seq. 6

CHAPTER B FORMALITIES RELATING TO CONTRACTING MARRIAGE I. DECLARATIONS OF THE WILL To contract marriage the agreement of the future spouses is necessary as well as compliance with certain form. The will of the parties contracting marriage needs to have been shaped freely and be free of defects, i.e. not to be the outcome of error in the identity of the person or to result from threat. Regarding the respective declarations of the will, they must be made in person and not be subject to condition or time-clause (Art. 1350, 1 CC). II. FORMALITIES RELATING TO THE CEREMONY OF MARRIAGE The declarations of will of the future spouses are subject to form. L. 1250/1982 established two types of marriage ceremonies of equal validity: religious and civil. In other words the parties may choose either the one or the other. 1. Marriage by Religious Ceremony In the religious marriage the declarations of will of the future spouses are made before the religious official. The constitutive form in the marriage by religious ceremony consists in the solemnization of the marriage before a priest of the Greek Orthodox Church or by a religious official of another doctrine or religion known1 in Greece (Art. 1367, 1 CC).2 1

What is meant by religion or doctrine ‘known’ in Greece is that such teaching or worship must be open, i.e. have some form of publicity which renders them literally ‘known.’ See M. Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 1367, No.

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Regarding marriage between parties belonging to different doctrines or religions, the marriage ceremony is performed according to the doctrine or religion of each of the parties contracting marriage, if such doctrines or religions are recognized3 in Greece (Art. 1371 CC). Finally, for evidential purposes as to the conclusion of the marriage, the religious official is obliged to draw up the relevant act following the marriage ceremony (Art. 1367, 3, 2 CC). 2. Civil Marriage In the civil marriage the simultaneous declarations of the future spouses are made publicly and solemnly in the presence of two witnesses and are addressed to the Mayor or the President of the Community (or their legal representative) of the place where the civil marriage is solemnized. Immediately after the civil marriage ceremony, the Mayor or President of the Community (or their legal representative) must draw up the relevant act (Art. 1367, 2 CC). Finally, it should be mentioned that, according to Article 1367, para. 3, subpara. 3 of the Greek Civil Code, the civil marriage ceremony does not preclude the solemnization of the same marriage in a religious ceremony. It would be fair to equally accept that the opposite is also possible, i.e. that, after the religious ceremony, a civil ceremony may follow.4

16; Papachristou, Manual of Family Law, op. cit., p. 41; E. Kounougeri – Manoledaki, Family Law, Vol. 1, 3d ed., 2003, p. 105. 2 The requirements for the religious ceremony are determined by the canon and rites of the doctrine or the religion according to which the marriage ceremony is performed, provided that they are not contrary to the rules of public order (Art. 1367, 3, 1 CC). 3 In view of the religious freedom guaranteed by the Greek Constitution (Art. 13), it should be accepted that a doctrine or religion is considered ‘recognized’ when it is known. See Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 1371, No. 1; G. Koumantos, Family Law, Vol. I, 1988, p. 63. 4 See Koumantos, op. cit., p. 68; Stathopoulos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 1367, No 23; Papachristou, op. cit., p. 43; Kounougeri – Manoledaki, op. cit., p. 107 and the citations thereat.

CHAPTER C DEFECTIVE MARRIAGE There are three types of defective marriage: the non-existent, the null and void, and the voidable. More specifically: Non-existent is the marriage for which neither of the two formalities stipulated by Article 1367 of the Greek Civil Code, the religious or the civil, were observed (Art. 1372, 2 CC). Null and void is the marriage which was contracted either in the absence of a positive requirement or despite the existence of an impediment (Art. 1372, 1 CC). Contrary to the general rule that the nullity of a juridical act does not have to be pronounced by a court judgment,1 for a marriage to be considered null and void a court judgment is necessary (Art. 1376 CC). There are no provisions for prescription of the action to annul. Voidable is the marriage in the following cases: a) on account of error in the identity of the person of the other spouse (Art. 1374, 1 CC), such as, for example, in the case where A by mistake marries the twin sister of the woman with whom he had agreed to get married; b) on account of threat (Art. 1375, 1 CC). For a voidable marriage to be annulled a court judgment is required. The action to annul the marriage may be lodged solely by the spouse who was in error or under threat but not by his heirs (Art. 1378, case 2 CC).2 The relevant action prescribes after six months from the time the institution of legal proceedings was possible and at any rate three years after the conclusion of the marriage (Art. 1380 CC). 1

See above General Principles, Part Three, Ch. E, II. The rule is that in such cases the heirs may also sue to annul. (See above General Principles, Part Three, Ch. E, III). The case of voidable marriage where they may not is the exception. 2

CHAPTER D THE RESULTS OF THE MARRIAGE FOR THE SPOUSES I. PERSONAL RELATIONSHIPS The Greek Civil Code regulates the following aspects of the spouses’ personal relationships: 1. Obligation to Cohabit The spouses have the reciprocal obligation to cohabit. This obligation includes the obligation of mutual fidelity, respect, and assistance. This claim, however, should not be exercised in an abusive manner, given the fact that even after the marriage each spouse retains the right to develop his personality freely (Art. 1386 CC). 2. Running the Conjugal Life The spouses need to decide jointly on every matter arising from their conjugal life. Nonetheless, the way their conjugal life is run should not affect the professional activity of either of the spouses or violate the sphere of their personality (Art. 1387 CC). 3. The Spouses’ Surname Marriage does not alter the surname of the spouses as far as their legal relationships are concerned (Art. 1388, 1 CC). Each spouse necessarily retains his surname even after the marriage. This rule is mandatory law (jus cogens) and every contrary agreement to this effect is null and void. Up until L. 1329/1983 entered into force, the wife was taking the husband’s last name but the law in question changed this in order for Greek family law to reflect the constitutional principle of

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the equality of sexes. Besides, the repeated changes of the wife’s surnames (with marriage, divorce, an eventual second marriage, etc.) complicated transactions.1 But in their social relationships each spouse, with the other’s consent, may use the other spouse’s surname or add it to his own (Art. 1388, 2 CC). 4. Joint Contribution to the Needs of the Family The spouses are obliged to contribute jointly to the needs of the family, each according to his means (Art. 1389 CC). Family needs include the mutual obligation to provide for each other’s maintenance, their common obligation to provide for the maintenance of the children, and more generally the obligation to contribute to the management of their common household (Art. 1390 CC). Each spouse may contribute to the family needs in the following ways: a) by his income which he may derive from his work or the management of his assets consisting of movables or immovables; b) by his assets, such as for example by offering one of his immovables to serve as the family residence; c) by his personal work which may be either housework or assistance with the profession of the other spouse.2 II. PROPERTY RELATIONSHIPS 1. The Autonomy of Assets A basic principle of the Greek Civil Law is that each spouse’s assets are separate and autonomous (Art. 1397 CC). Marriage does not alter the spouses’ patrimonial status of separateness and autonomy of assets. This implies that it does not create ‘community property.’ Each spouse maintains and freely administers not only the assets he had prior to the marriage but also those he acquired after it. The one limitation to the separateness and autonomy of the couple’s assets introduced by the Greek Civil Code is the claim to participate in the increments following the dissolution or annulment of the marriage.

1

See Introductory Report of L. 1329/1983, No 39, in I. Spyridakis, Civil Code, 2003, p. 792. For the determination of the contribution of each spouse to the needs of the family, see Kounougeri – Manoledaki, op. cit., p. 212 et seq; Papachristou, op. cit., p. 82 et seq. 2

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2. Claim to Participate in the Increments By claim to participate in the increments (increase in the assets of the other spouse) we mean that each spouse, after the dissolution or annulment of the marriage,3 the same as in the case of separation that lasted at least three years, is entitled to claim4 from the other spouse5 part of the assets accumulated during marriage, provided of course that he is able to prove that this increase of assets is also due to his own contribution (Art. 1400, 1 and 2 CC). What each spouse acquired from donation, inheritance, legacy, or the proceeds from the disposal of such acquisitions is not considered an increase of assets during marriage (Art. 1400, 3 CC). Example: If A, the husband, at the time of his marriage with B had assets amounting to 150,000 euros and at the time of the dissolution of their marriage his assets amounted to 500,000 euros, his wife B is entitled to a share in the increase of the husband’s property by 350,000 euros to the extent of her contribution.

However, because it is difficult to prove the contribution of the one spouse to the assets of the other, the Greek Civil Code establishes a rebuttable presumption by which such contribution is limited to one third (⅓) of the increase. But, given the fact that, as was already mentioned, such presumption is rebuttable, if it is proved that the contribution was greater, the claim will also be higher. If, on the contrary, it is proved that the contribution was lesser or that there was no contribution, the claim will be limited accordingly or disallowed altogether (Art. 1400, 1, 2 CC). Finally, the meaning of the term ‘contribution’ to the increase of the assets of the other spouse needs to be clarified. Article 1400, para. 1, subpara. 1 of the Greek Civil Code intentionally adds to the word contribution the qualifier ‘in whatever manner’ in order to include all manners of contributing such as, for example, by making a payment towards the purchase of a movable or immovable by the other spouse, by paying for 3

The marriage is dissolved either by reason of death of one of the spouses or by reason of divorce. See below Part One, Ch. E. 4 In case of death of one of the spouses, the claim to the increment of the assets accumulated during marriage does not arise to the benefit of the heirs of the deceased spouse (Art. 1401, 1 CC). 5 If the marriage is dissolved by reason of death of the spouse who is under the obligation to share the increments to his property, the surviving spouse may exercise the claim in question against the heirs of the deceased (see Kounougeri – Manoledaki, op. cit., p. 267; Papachristou, op. cit., p. 99).

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the remodeling of the spouse’s immovable, by paying the spouse’s debts, by offering one’s services free of charge to the other spouse’s business, by doing housework, by giving professional advice, etc. 3. ‘Community Property’

∗

For their property relationships the spouses may alternately choose the system of ‘community property’ (Arts. 1403-1416 CC). More specifically: Either before or during the marriage, the spouses may elect the system of ‘community property’ by concluding a contract to this effect and subjecting it to the form of notarial deed.6 This means that they establish for their assets a system of community in equal shares without the right of disposal by either of his undivided share (Art. 1403, 1 CC). In other words the spouses create a joint property which belongs to both of them in undivided shares. This joint property may consist of the totality of the spouses’ assets or only of what they will acquire during marriage. Joint ownership ceases to exist in the following instances: A. Ipso jure with the dissolution or annulment of the marriage as well as when one of the spouses is declared a ‘missing person’ (absentee)7 or bankrupt8 and the relevant court judgment becomes final non appealable (Art. 1411, 1 CC).9 The reason for placing the term community property in quotation marks is to indicate that here the term is used in its literal sense and is not identical to the homonymous legal institution in certain states of the USA, such as California, from which the Greek law of the joint ownership of the spouses differs in several respects (Translator’s note). 6 The ‘community property’ contract is valid against third parties only following its recordation in a special public register kept in the Athens Court of First Instance (Art. 1403, 2 CC in conjunction with PrD 411/1989). 7 See above General Principles, Part One, Ch. B, I, 4. 8 Only the merchant who has stopped making payments may be declared bankrupt by a court ruling. 9 See Koumantos, op. cit., Vol. I, p. 238; I. Deliyannis – A. Koutsouradis, Family Law, Vol. II, 1987, p. 158; Kounougeri – Manoledaki, op. cit., p. 296 et seq.; Th. Papachristou, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 1411-1413, No 8. According to a different view (I. Spyridakis, Family Law, 1984, p. 146), especially for the case of declaration of a person as missing, the court ruling must be irreversible (i.e. not just final non appealable). ∗

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B. By an agreement between the spouses which needs to be vested the form of a notarial deed (Art. 1412 CC). C. By a court judgment following a lawsuit filed by one of the spouses in certain cases specified by law (Art. 1413 CC).

CHAPTER E DISSOLUTION OF MARRIAGE I. GENERAL Marriage is dissolved with the death of one of the spouses or with divorce. As was already mentioned, the declaration of one as a ‘missing person’ does not automatically entail dissolution of the marriage; it only constitutes grounds for divorce.1 II. DIVORCE Divorce is the dissolution of the marriage by court ruling when both spouses are still alive. 1. Types of Divorce In the Greek Civil Code there are two types of divorce: by mutual consent (uncontested) and contested. A. Divorce by Mutual Consent (Uncontested) a. Prerequisites The prerequisites for divorce by mutual consent, which was introduced by L. 1329/1983, are the following (Art. 1441 CC): aa. The marriage must have lasted at least one year. bb. The agreement of the spouses to an uncontested divorce needs to be declared by them before the court in person or by specially authorized 1

See above General Principles, Part One, Ch. B, I, 4, D.

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representatives in the course of two hearings separated from each other by a period of at least six months. cc. If there are minor children, a written agreement of the spouses settling matters of the parental care over the children and of the parents’ visitation rights with them needs to be submitted to the court. b. Procedure The spouses submit a joint petition to the competent court, which is the One-member Court of First Instance2 of the last joint residence of the spouses3 or of the domicile or residence of one of the spouses.4 The marriage is dissolved when the court ruling5 granting the divorce becomes irreversible.6 B. Contested Divorce a. Grounds for Divorce Following the amendment of the Greek Civil Code by L. 1329/1983, there are only two grounds for divorce: the declaration of one of the spouses as a ‘missing person’ and major breakdown of the matrimony. aa. Declaration of one of the spouses as a missing person: in case one of the spouses has been declared a missing person, the other may file for divorce (Art. 1440 CC). In this case the court procedure is only a formality ∗

2

See X. Skorini – Paparrigopoulou, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 1441, No 26; Kounougeri – Manoledaki, op. cit., Vol. I, p. 485; Papachristou, Manual of Family Law, op. cit., p. 152. 3 See Art. 39 CCPr. 4 See Arts. 22 and 23 CCPr. 5 Irreversible is the court decision which is not subject to any recourse, including cassation review. 6 The court decides according to the procedure followed in cases of voluntary (ex parte) jurisdiction (Art. 739 CCPr.). ‘Major breakdown’ is the literal translation of the term ‘ishyros klonismos’ (ισχυρός κλονισµός) used by the Greek legislator. In the English language the term often used for this type of failure of the marriage is ‘irretrievable breakdown.’ See, for example, Gerhard Robbers, An Introduction to German Law (Translated into English by Michael Jewell), Nomos/Ant. N. Sakkoulas, 3d ed., 2003, p. 287; also Kate Standley (writing on the British law), Family Law, MacMillan, 1993, p. 84 (Translator’s note). ∗

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because the court is bound by the judgment declaring the spouse a missing person.7 bb. Major breakdown: according to Article 1439, para. 1 of the Greek Civil Code, each of the spouses may file for divorce when, on account of a reason attributed to the person of the defendant or both spouses, the matrimony has suffered such major breakdown, that continuation of the conjugal relationship would be intolerable to the plaintiff. As is gathered from the above Article, suffices for the conjugal relationship to have undergone major breakdown. It is not necessary for one or both spouses to be at fault. Such is, for example, the case when serious financial problems have surfaced or problems of physical or mental health for one of the spouses or both. The degree of breakdown of the conjugal relationship needs to be such that continuation of the conjugal relationship is deemed intolerable by the spouse petitioning the divorce. The concept ‘major breakdown of the matrimony rendering the continuation of the conjugal relationship intolerable’ is an abstract legal concept. Consequently, it is up to the court to decide whether the specific facts brought before the bench constitute such serious impairment of the matrimonial bond that continuation of the marriage would be intolerable to the petitioner. To facilitate the evidence of such facts strongly impairing the continuation of the conjugal relationship, the Greek Civil Code (Art. 1439, 2) establishes four reasons8 which constitute rebuttable presumptions9 regarding the existence of major breakdown. They are: -

7

bigamy, i.e. contracting a marriage without having previously dissolved or annulled the existing marriage; adultery, i.e. physical sexual relationship of one of the spouses with a third party of either gender; abandonment of the plaintiff, i.e. interruption of the conjugal relationship without good reason; plotting against the plaintiff’s life by the defendant, i.e. externalization of the intention of one spouse to kill the other.

See Skorini – Paparrigopoulou, op. cit., Art. 1440, No 5; Kounougeri – Manoledaki, op. cit., Vol. I, p. 399; Papachristou, op. cit., p. 154. 8 Before the amendment of the Greek Civil Code by L. 1329/1983, these reasons constituted grounds for divorce due to one’s fault. 9 A presumption is rebuttable if it can be rebutted by the opposing party’s proof to the contrary.

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Regarding major breakdown it should be noted that, according to Article 1439, para. 3 of the Greek Civil Code, if the spouses have been continually estranged for a period of at least four years, the presumption is non-rebuttable.10 The four year period is considered complete even if during that time there might have been brief interruptions of the estrangement in an attempt by the spouses to reestablish the conjugal relationship. The lawmaker adopted this solution in order to facilitate the dissolution of marriages which, after four years of estrangement, are in actuality defunct. b. Procedure The court competent to rule on a contested divorce is the Multi-member Court of First Instance11 of the place of the last joint residence of the spouses12 or of the domicile or residence of the defendant.13 14 2. The Results of Divorce The marriage ceases to exist as soon as the court decision becomes irreversible. Once the marriage is dissolved there is no longer obligation for cohabitation. If co-ownership had been established,15 it is dissolved and the claim of sharing in the increments arises.16 Moreover, a claim to maintenance is born if certain conditions concur. More specifically: The claim of one of the former spouses to maintenance presupposes on the one hand the claiming spouse’s inability to secure his own maintenance, even if he were to spend his principal, and on the other hand the ability of the other former spouse to provide such maintenance. In addition to those general preconditions, the former spouse entitled to maintenance must also be unable to exercise a suitable profession on account of his age, health, or the need to care for a minor child, or on 10

A presumption is non-rebuttable if it cannot be rebutted by any proof to the contrary. See Art. 18 No 1 CCPr. 12 See Art. 39 CCPr. 13 See Arts. 22 and 23 CCPr. 14 The procedure followed in the case of contested divorce is the special procedure on marital disputes (Art. 592, 1 CCPr.). 15 See above Part One, Ch. D, II, 3. 16 See above Part One, Ch. D, II, 2. 11

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account of his inability to find stable work or his need for professional training. Finally, it is possible for maintenance to be granted to the divorced spouse for reasons of equity (aequitas).17

17

A most recent law on social security matters (L. 3232/2004) has further established (Art. 4) that, in case of death of the former spouse who was under the obligation to pay maintenance, even if said spouse had been remarried, the divorcee or the divorced man is entitled to receive a portion of his or her pension drawn from the state or other social security organizations under certain strict conditions. The criteria used to establish these conditions take into consideration the divorcee’s or the divorced man’s age and economic status, his or her ability to generate income, the number of years the marriage had lasted, the reason for which it was dissolved etc. Such pioneering reforms touching upon family law are in line with the social spirit permeating the recent reforms in Greek family law and further point to its avant-garde character (See above Family Law, Introduction).

PART TWO MEDICALLY ASSISTED HUMAN REPRODUCTION AND KINSHIP CHAPTER A MEDICALLY ASSISTED HUMAN REPRODUCTION I. INTRODUCTORY REMARKS The rapid development of medical methods towards providing assistance with human reproduction has led the Greek legislator to pass a law regulating the matter. It is L. 3089/2002 entitled, “Medical Assistance in Human Reproduction.”1 This law is founded on the one hand on Article 5, para. 1 of the Greek Constitution and on the other hand on the Treaty of the Council of Europe on Human Rights and Biomedicine which was ratified by Greece by L. 2619/1998. Specifically as regards the Greek Constitution, Article 5 states that each person has the right to develop his personality freely. All individual rights not mentioned in special laws are based on this general constitutional principle. Consequently, the right to human reproduction by medically assisted methods, which constitutes an alternative way of procreating, is founded on Article 5 since the Constitution clearly protects all individual forms of freedom including the freedom of having a family.

1

See P. Agallopoulou – A. Koutsouradis (eds.), Medical Assistance in Human Reproduction: L. 3089/2002 (Preliminary Proceedings/Discussion in the Parliament), 2004.

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Law 3089/2002 introduced a special chapter to the Greek Civil Code regarding the conditions under which the various methods of medically assisted human reproduction are permitted. The same law also amended the chapter of the Greek Civil Code regarding descent.2 According to the above law, all the medically assisted methods practiced for the purpose of human reproduction are permitted. Married and unmarried couples and even single women have the right to employ medically assisted methods to procreate. Moreover, it should be mentioned that medically assisted human reproduction is even permitted post mortem and the same holds for the reproduction by way of intervention of a surrogate mother. However, the conditions required in these cases are stricter. II. GENERAL CONDITIONS FOR MEDICALLY ASSISTED HUMAN REPRODUCTION TO BE ALLOWED According to Articles 1455 and 1456 of the Greek Civil Code, the necessary conditions for the use of medically assisted methods in human reproduction are the following: 1. It should be impossible for the person wishing to have a child to procreate in the natural way; or the reason for abstaining from natural reproduction should be to avoid the transmission to the child of a grave genetic disease. 2. Medically assisted methods for human reproduction are only allowed up to the reproductive age of the medically assisted person. 3. The persons desiring to use such medically assisted methods for human reproduction must give their consent3 in writing. In the case of an unmarried woman, her consent as well as the consent of the male she cohabits with, if this happens to be the case, need to be vested the form of a notarial deed. 2

See Kounougeri – Manoledaki, op. cit., Vol. II, p. 1 et seq. ; P. Filios, Family Law, Vol. II, 2004, p. 40 et seq.; P. Agallopoulou, “Medically Assisted Human Reproduction in Greece,” in International Family Law, March 2004, p. 33 et seq. (in English). 3 The consent is revoked in the same way it was given up until the time the semen or the fertilized ova is transferred to the female body. Subject to the exception of Article 1457 concerning post mortem medically assisted human reproduction the consent is considered revoked if one of the parties who had given their consent dies before the transfer takes place (Art. 1456, 2 CC).

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4. The persons are not allowed to choose the gender of the child unless this is done to avoid a serious gender-related disease. 5. Human reproduction by way of cloning is prohibited. III. SPECIAL CONDITIONS REQUIRED FOR POST MORTEM MEDICALLY ASSISTED HUMAN REPRODUCTION According to Article 1457 of the Greek Civil Code, after the death of the husband or the steady partner with whom the woman was cohabiting, medically assisted human reproduction is only possible by court authorization4 if the following conditions concur: 1. If the husband or the steady partner with whom the woman was cohabiting suffered from a disease linked to the hazard of sterility or if he was in mortal danger. 2. If the husband or the steady partner with whom the woman was cohabiting had given his consent to such post mortem medically assisted human reproduction in the form of a notarial deed. It is also necessary to mention at this point that such post mortem medically assisted human reproduction may not take place earlier than six months after the man’s death or later than two years after his death. IV. SPECIAL CONDITIONS FOR MEDICALLY ASSISTED HUMAN REPRODUCTION IN THE CASE OF USE OF A SURROGATE MOTHER Article 1458 of the Greek Civil Code also allows for fertilized ova to be transferred to the body of a third female. The requirements for medically assisted human reproduction by way of using a surrogate mother5 are the following: 4

The court competent to issue such authorization is the One-member Court of First Instance (Art. 740 CCPr.) of the place where the petitioning woman habitually resides. The court decides according to the procedure followed in cases of voluntary jurisdiction (jurisdiction ex parte) (Art. 739 CCPr.). If the court estimates that publicity would be detrimental to the ‘good morals’ or that there exist special reasons on account of which it is imperative to protect the private or family life of the parties, it may order the hearing to take place behind closed doors (Art. 799 CCPr.). 5 It seems that in English by the term ‘surrogate motherhood’ the following two things are usually understood: a) partial surrogacy, which involves insemination of the surrogate

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1. Written agreement between the persons who intend to procreate and the woman who will carry out the pregnancy without any quid pro quo. If the surrogate mother is married, her spouse also needs to consent. 2. Petition by the woman who wishes to have a child by medically assisted human reproduction of this type before a court. 3. Judicial authorization6 to this effect which is granted if the petitioning woman is medically incapable of carrying out a pregnancy and the surrogate mother, in view of her overall health condition, is capable of doing so. 4. The ova transferred to the surrogate mother who will carry out the pregnancy must be either those of the woman petitioning the authorization or of a third woman. It is not possible, however, for the woman who will carry out the pregnancy to be impregnated by fertilized ova of her own. In addition to the above mentioned conditions it should also be noted that according to Article 8 of L. 3089/2002 – which, however, has not been inserted in the Greek Civil Code – both the commissioning or intended mother and the surrogate mother must have their domicile in Greece. This clause has been included in order to eliminate the possibility of tourism for procreative purposes.

mother, i.e. the mother who will carry out the pregnancy, by the sperm of the commissioning or intended father, and b) full surrogacy which entails in vitro fertilization of the surrogate mother using egg and sperm of the commissioning or intended parents (see Surrogate Motherhood: International Perspectives, R. Cook & Slater (eds.), Oxford, Portland, Oregon, 2003, p. 1). The Greek law establishes a different distinction between the possible types of surrogate motherhood permitting only the first one: i) surrogate motherhood where the third woman carrying out the pregnancy is being impregnated by reproductive material (sperm and ova) that is not her own (it could belong either to the intended father/mother or to a third party donor); and ii) surrogate motherhood – not permitted according to the Greek law – where the surrogate mother, in addition to carrying out the pregnancy, would also be using her own ova in the process. The first type of surrogacy is often referred to in the Greek language as ‘parenthetic motherhood’ (‘parentheti mitrotita’/παρένθετη µητρότητα), whereas for the second, the non-permitted one, the term ‘surrogate motherhood’ (‘hypokatastati mitrotita’/υποκατάστατη µητρότητα) is reserved. 6 What was earlier said about the court proceedings in the case of issuance of a court authorization for post mortem medically assisted human reproduction (footn. 4) also holds in this case.

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V. THE ANONYMITY OF THE PERSONS WHO HAD OFFERED THEIR SPERM OR FERTILIZED OVA With the Article 1460 of the Greek Civil Code the anonymity of third persons having offered their sperm or fertilized ova is guaranteed. Nonetheless, the medical information concerning third party donors is preserved in a confidential archive without indication of the persons’ identity. The only party to whom access to this archive is permitted is the child and this only for medical reasons concerning his person. According to this same Article, the identity of the child and of the child’s parents is not disclosed to third party donors of sperm or fertilized ova. This anonymity was established in order to protect both sides from eventual mutual future interventions of the two families, the ‘biological’ and the ‘social.’ VI. THE FATE OF EXCESS FROZEN SPERM OR FERTILIZED OVA According to Article 1459 of the Greek Civil Code, the persons having recourse to methods of medically assisted human reproduction decide beforehand by a joint written declaration before their physician or the person in the Medical Center who is responsible for such matters what the fate of their unused frozen sperm or fertilized ova will be. Such reproductive material may: -

be offered without a quid pro quo to other candidates for medically assisted human reproduction chosen by the physician or the person in the Medical Center responsible for such matters; be used without a quid pro quo for research or treatment purposes; be destroyed.

In case there is no joint declaration of the interested parties as to the fate of cryo-preserved sperm or fertilized ova, they are preserved for five years from the time this reproductive material was received or fertilized, after which time they are either used for research or treatment purposes or they are destroyed. As regards non cryo-preserved ova, they are destroyed after the elapse of fourteen days since insemination.

CHAPTER B KINSHIP Kinship is the relationship connecting two or more persons to each other. There are two kinds of kinship: by blood (consanguinity) and by marriage alliance (affinity). The kinship by blood is distinguished in lineal and collateral. Lineal blood relationship is the relationship connecting two persons one of which is issued from the other (Art. 1461, 1 CC), e.g. parent-child. Collateral blood relationship exists between two persons who descend from a common ancestor (Art. 1461, 2 CC), e.g. siblings. The degree of relationship between the parties is determined by the number of births connecting these persons (Art. 1461, 3 CC). Example:

A B D

C E

A = father B, and C = A’s children, i.e. siblings D and E = A’s grandchildren and each other’s first cousins.

B is related to both A and D by lineal blood relationship of the 1st degree. He is also related to C by collateral blood relationship of the 2nd degree and to E by collateral blood relationship of the 3d degree. D is related to A by lineal blood relationship of the 2nd degree. He is also related to C and E by collateral blood relationship (of the 3d and 4th degree respectively).

Relationship by marriage alliance is the relationship between one spouse and the blood relatives of the other spouse (Art. 1462, 1 CC).

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Example: If A and B are husband and wife and B has parents and siblings, A’s relatives by marriage alliance are the parents and siblings of B.

In the relationship by marriage alliance the degree of relatedness is also determined by the number of births connecting the persons with each other (Art. 1462, 2 CC). Example: P1

A

M1

D

P2

E

F

M2

B

G

A and B = husband and wife. P1 and M1 = A’s parents P2 and M2 = B’s parents D and E = A’s siblings F and G = B’s siblings

A is related to P2 and M2 by lineal 1st degree relationship by marriage alliance. He is also related to F and G by collateral 2nd degree relationship by marriage alliance. Respectively, B is related to P1 and M1 by lineal 1st degree relationship by marriage alliance. She is also related to D and E by collateral 2nd degree relationship by marriage alliance.

Finally, as was already noted,1 it should be made clear that the relationship by marriage alliance continues to exist even after the dissolution or annulment of the marriage it was created by (Art. 1462, 2 CC). There is also ‘artificial’ kinship created by adoption.2

1 2

See above Part One, Ch. A, II, 3. See below Part Five.

CHAPTER C ESTABLISHMENT OF THE PARENT-CHILD RELATIONSHIP I. ESTABLISHMENT OF MATERNAL DESCENT The relationship of a person with the mother and her relatives is established by the fact of the person’s birth (Art. 1463, 1 CC). In case of medically assisted human reproduction, if the pregnancy was carried out by another woman, the presumption is that the mother of the child is the woman who intended to have the child and who, in accordance with the conditions set forth by Article 1458 of the Greek Civil Code,1 has obtained the relevant court authorization to have a child by this method (Art. 1464, 1 CC). This presumption is rebuttable and may be overturned by an action contesting maternity2 brought within six months from the time of birth either by the presumed mother or by the surrogate mother, if it is proved that the child was issued biologically from the latter (Art. 1464, 2, 1 CC). Following the irreversible court decision accepting the contestation of maternity action, the child’s mother is the surrogate mother who is deemed to be his mother retroactively from the time of birth (Art. 1464, 3 CC). II. ESTABLISHMENT OF PATERNAL DESCENT The relationship of a person with the father and his relatives is deduced from the mother’s marriage to the father or established by way of acknowledgment (voluntary or through a court ruling) of the child as the father’s own (Art. 1463, 2 CC). 1

See above Family Law, Ch. A, IV. Competent court is the Multi-member Court of First Instance (Art. 18 CCPr.) applying the proceedings governing relations between parents and children (Art. 614, 1, 1 CCPr.). 2

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More specifically: 1. Presumption of Paternity Article 1465, para. 1 of the Greek Civil Code stipulates that a child born during the mother’s marriage or within three hundred days from its dissolution or annulment is presumed to have as father the mother’s husband.3 This clause establishes the presumption of paternity which, however, is rebuttable and may be reversed by court judgment4 if it is proved that the mother did not conceive from her husband or that during the critical time for conception it was absolutely impossible for her to conceive from him (Art. 1467 CC). A child born from artificial insemination which took place post mortem is also considered born in marriage, provided that the required by Article 1457 of the Greek Civil Code court authorization exists (Art. 1465, 2 CC).5 2. Acknowledgement of Paternity If a child is born out of wedlock, the parentage with the father is established through acknowledgement of the child by the father as his own. In case there is no acknowledgement by the father, no relationship between the child and his biological father exists. A. Ways of Acknowledgment of Paternity The acknowledgement of paternity may be effected voluntarily or judicially (by court decision). Specifically: a. Voluntary acknowledgment The acknowledgment is voluntary if it is done by the father or his parents − in case the father is deceased or incapable of concluding juridical

3

If the child was born after the elapse of three hundred days as from the dissolution or the annulment of the marriage, the burden of proof regarding the husband’s paternity falls on the party arguing in favor of the paternity. The same holds if the artificial insemination took place post mortem, despite the lack of court authorization to this effect (Art. 1465, 3 CC). 4 Concerning the contestation of paternity, see Arts. 1469-1472 and Arts. 614 et seq. CCPr. 5 See above Family Law Ch. A, III.

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acts − provided that the mother also consents to it (Art. 1475, para. 1, subpara. 1 and para. 3 CC). In the case of an unmarried woman who had recourse to medically assisted human reproduction, the consent of the man with whom she cohabits, given before a notary public (Art. 1456, 1, 2 CC), holds as voluntary acknowledgment on his part of the child as his own (Art. 1457, 2, 1, CC). The respective consent of the woman, given by way of notarial document, also holds as her consent to the voluntary acknowledgment (Art. 1475, 2, 2 CC). The voluntary acknowledgement by the father or his parents is done by a declaration before a notary public or by testament (Art. 1476, 1 CC). The declarations pertaining to acknowledgement and consent need to be made in person, may not be dependent on condition or time-clause, and are irrevocable (Art. 1476, para. 3 and 4 CC).6 b. Judicial acknowledgment In case either the father has not voluntarily acknowledged the child as his own or the mother has not consented to it, the mother, the child, or the father of the child born out of wedlock may file an action and demand from the court to rule to this effect (Art. 1479 CC). If medically assisted human reproduction is conducted with reproductive material of a third party donor, judicial acknowledgement is precluded even if the identity of the party is or later on becomes known (Art. 1479, 2 CC).7 B. The Results of Acknowledgment In the case of a child’s acknowledgment by the father as his own (either by voluntary or judicial acknowledgment), unless the law provides otherwise,8 the child has in all matters the status of a child born in marriage vis-à-vis both parents and their relatives.

6

The Greek Civil Code allows for contestation of the acknowledgment of a child as one’s own if such acknowledgement was effected by a person other than the child’s biological father (Art. 1477 CC). 7 The anonymity of third persons having offered their sperm or fertilized ova is guaranteed. See above Ch. A, V. 8 The law makes different provisions regarding the last name and the parental care. See below Part Three, Ch. A, II, and Ch. E, V.

PART THREE THE RELATIONSHIP BETWEEN PARENTS AND CHILDREN From the kinship relationship between parents and children stem many consequences. CHAPTER A THE CHILD’S SURNAME The determination of the child’s surname varies depending on whether the child was born during the marriage or out of wedlock. I. THE SURNAME OF CHILDREN BORN DURING MARRIAGE Regarding the children’s surname the Greek Civil Code (Art. 1505, 1) stipulates the following: the parents are obliged to determine their children’s surname by a joint irrevocable declaration made prior to the marriage, either before a notary public or before the functionary who will perform the marriage. The surname thus determined needs to be the same for all the children and it may be the surname of either parent or a combination of the two (Art. 1505, 2 CC). If the parents omit to declare the surname they wish for their children to have, the latter will take the father’s surname (Art. 1505, 3 CC). II. THE SURNAME OF CHILDREN BORN OUT OF WEDLOCK In case a child is born out of wedlock, the child takes the surname of the mother (Art. 1506, 1 CC). Should there subsequently be acknowledgement

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of the child by the father as his own, either voluntarily or judicially,1 the adult child or the child’s parents – if the child is under age – have the right to add the paternal surname to the child’s surname (Art. 1506, 3 CC).

1

See above, Part Two, Ch. C, II, 2, A.

CHAPTER B SPECIAL OBLIGATIONS I. OBLIGATION FOR ASSISTANCE, AFFECTION, AND RESPECT Parents and children are under the obligation of mutual assistance, affection, and respect (Art. 1507 CC). Both minors and adult children are under the same obligation. II. OBLIGATION TO RENDER SERVICES As long as the child lives in the parents’ household and is brought up or provided for by them, he is under the obligation to offer services commensurate to his own abilities and living conditions – as well as to the living conditions of his family – regarding the management of the household or the practice of the parents’ profession (Art. 1508 CC). Both minors and adult children are under the same obligation regardless of whether they were born in the marriage or out of wedlock. III. PARENTS’ GRANTS TO THEIR CHILDREN Grants of parents to their children are the grants given by the parents to their children for the sake of creation or maintenance of financial or family self-sufficiency or for the commencement or continuation of the exercise of their profession (Art. 1509 CC). Such grants may be given to children under age as well as to adult children. At this point it should be noted that the law does not make it a legal obligation for the parents to grant financial assets to their children.1 1

See Koumantos, op. cit., Vol. II, p. 165; Kounougeri – Manoledaki, op. cit., Vol. II, p. 239 et seq. ; Papachristou, op. cit., p. 264; Filios, op. cit., Vol. II, p. 138 et seq.

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The parents’ grants to their children are subject to favorable tax treatment given the fact that the tax imposed on them is only one half of what it would have otherwise been (e.g. if it were a donation), up to a certain amount for each of the parents separately. This amount goes up if one of the parents is deceased.2 IV. MUTUAL OBLIGATION FOR MAINTENANCE The Greek Civil Code expressly states that ascendants and descendants are under the reciprocal obligation to provide maintenance (Arts. 1485 et seq. CC) when certain conditions are met. One basic condition is the state of destitution of the obligee and the state of affluence of the obligor. More specifically: One is considered destitute, and consequently entitled to receive maintenance, when one is unable to provide for himself from his assets or from his personal work which is appropriate to his age, condition of health, and other living conditions (Art. 1486, 1 CC). One is considered affluent when one is able to provide maintenance to another without endangering his own sustenance (Art. 1487, 1 CC). Consequently, the affluent child is obliged to provide maintenance to his destitute parent, and the affluent parent is obliged to provide maintenance to his destitute adult child. As far as children under age are concerned, the above mentioned rule is not applicable because Article 1486, para. 2 of the Greek Civil Code expressly stipulates that a child under age, even if he owns property, is entitled to maintenance by his parents, as long as the income he derives from his own property or from his work does not suffice for his maintenance. Moreover, regarding children under age, the rule that maintenance by the obligor is not due if this endangers the obligor’s own sustenance is not applicable and the parent is obliged to provide maintenance to the child 2

See Art. 2 L. 1329/1983 in conjunction with Art. 34, L. 2961/2001, as said law was modified by Art. 12, para. 6 L. 3091/2002. According to Article 34 (under B) of L. 2961/2001 in conjunction with Art. 44, para. 1 of the same law, as modified by Art. 12, para. 7 of L. 3091/2002, the parents’ grant to a child is subject to ½ the amount of the tax due in donations up to the amount of 90,000 euros for each parent separately. This amount is raised to 130,000 euros if one of the parents is deceased.

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anyway, unless the child may turn to another obligor (e.g. grandfather or grandmother) or if he may provide for himself from his own assets (Art. 1487, 2 CC).

CHAPTER C PARENTAL CARE

∗

I. THE CONCEPT Parental care is an office1 which includes several particular rights and obligations and is exercised in the interest of the child who is a minor. More specifically, it includes the care of the child’s person, the management of his assets, and his representation in any matter or transaction or litigation concerning the child’s person or property (Art. 1510, 1, 2 CC). The care of the child’s person especially includes his upbringing, supervision, education and instruction, as well as the determination of the place of his residence (Art. 1518, 1 CC). II. BEGINNING OF PARENTAL CARE Parental care begins at the moment of the child’s birth (a live birth) assuming of course that at least one of the parents is alive. In case the mother had died before delivery was completed and the father had predeceased, the child is placed under tutelage (Art. 1589 CC).

We translate the term ‘merimna’ (µέριµνα) of the Greek Civil Code literally, i.e. as care (see Liddell-Scott, Greek-English Lexicon) in hopes of staying closer to the spirit of the Greek lawmaker. To be noted that the German lawgiver also uses the German equivalent of the word ‘care’ (Sorge) whereas the term used in many European or International instruments is ‘parental responsibility’ (see, for example, Hague Convention of October 19, 1996, Council of Europe ‘White Paper’ of January 15, 2002, Council Regulation (EC) No 2201/2003 of November 27, 2003, etc.). In the American legal scene the term employed to denote the child’s care by the parents on a day-to-day basis as well as regarding the major decisions taken by them for the child is ‘child custody’ (http://public.findlaw.com) (Translator’s note). 1 See P. Agallopoulou, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 1510, No 10. ∗

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III. THE EXERCISE OF PARENTAL CARE DURING MARRIAGE During marriage the parental care is exercised by both parents jointly. This means that they need to reach their decisions jointly regarding every measure concerning the personal or property status of their child (Art. 1510, 1, 1 CC). IV. THE EXERCISE OF PARENTAL CARE IN CASE OF DIVORCE, ANNULMENT, OR INTERRUPTION OF CONJUGAL LIVING 1. General In case of divorce, annulment of marriage, or interruption of the conjugal life the court, having a wide range of possibilities regarding the regulation of the matter of exercise of the parental care, may adopt various solutions (Arts. 1513-1514 CC). 2. Ways of Dealing with the Issue of the Exercise of Parental Care The guideline for the courts in deciding on the exercise of parental care is the interest of the child (Art. 1511, 2 CC). For the interest of the child to be more specifically determined several criteria are used: the respect due to each of the parents as equals; the bonds between the child and his parents or siblings; the agreements that exist between the parents regarding the care and management of the child’s property; the taking into consideration of the child’s own opinion depending on the latter’s maturity (Art. 1513, 2 and Art. 1511 CC).2 According to Articles 1513-1514 of the Greek Civil Code, the court has several ways in which to regulate the matter of exercise of parental care.3 More specifically: A. Granting the Exercise of Parental Care to one of the Parents As is gathered from many court decisions, the exercise of parental care is in principle granted to one of the parents. Usually it is granted to the 2

See P. Agallopoulou, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 1511, No 22 et seq., and Arts. 1513-1514, No 34 et seq. 3 Regarding the court competent for the adjudication of differences on the issue of the exercise of parental care, see Agallopoulou, op. cit., Arts. 1513-1514, Nos 21, 25 et seq., and 45 et seq., along with the citations thereat.

472


mother. However, nowadays many courts decide that in certain cases the father appears to be better suited than the mother to raise his child who is a minor. B. Granting the Exercise of Parental Care to both Parents Jointly The exercise of parental care may be granted to both parents jointly provided that, in addition to the general condition of considering the interest of the child, the following two conditions concur: it has been earlier agreed between the parents that this would be the case, and the parents have determined the location of the child’s domicile. C. Distributing the Exercise of Parental Care between the Parents The court has the right to distribute the exercise of parental care between the parents. The distribution may be effected on the basis of functions of the parental care office or of time. Distribution pertaining to functions of the office of parental care means that certain functions are granted to one parent and the rest to the other, e.g. one parent may be in charge of the child’s education and the other of all the rest. Distribution pertaining to time means that the exercise of parental care rotates, e.g. during fall and winter it is exercised by the mother and during spring and summer by the father. D. Granting the Exercise of Parental Care to a Third Party If in the court’s opinion both parents are unsuitable to exercise the parental care, it may be granted to a third party who, according to Article 1589, is a tutor in which case the provisions on tutelage are applicable (Arts. 1589 et seq. CC). V. THE EXERCISE OF PARENTAL CARE OF CHILDREN BORN OUT OF WEDLOCK In the case of children born out of wedlock we need to distinguish: 1. If the child has not been acknowledged by the father as his own, the exercise of the parental care belongs to the mother (Art. 1515, 1, 1 CC).

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2. In case of voluntary acknowledgement, the father also takes part in the parental care which, however, he may exercise only if the mother’s parental care has ceased or she is unable to exercise it (Art. 1515, 1, 2 CC). In case of judicial acknowledgement where the father had contested the action lodged against him, he may not take part in the parental care or replace the mother in the exercise thereof (Art. 1515, 3, 1 CC). VI. THE CESSATION OF PARENTAL CARE Parental care ceases with the child’s coming of age, the death or the declaration of either the child or both parents as missing persons, as well as with the forfeiting of the office by both parents (Art. 1538 CC).

PART FOUR TUTELAGE OF MINORS ∗

A minor is under tutelage when neither of his parents has or is able to exercise the parental care (Art. 1589 CC).1 The organs of the tutelage are: the tutor, the supervisory council, and the court (Art. 1590 CC). The tutor is always appointed by the court (Art. 1592, 1, 1 CC) and his task consists in taking care of the minor, managing his property, and representing him in every litigation and transaction concerning his person or property (Art. 1603 CC). The supervisory council is composed of three to five members, all of which are relatives or friends of the minor’s parents, and its task consists in supervising the actions of the tutor (Art. 1634 et seq. CC). The court, which is the special division for family cases of the Court of First Instance, appoints and terminates the tutor and the members of the supervisory council, and grants permission regarding certain acts of the tutor (Arts. 1591, 1623, 1624, 1625, 1651 CC).

We use the word tutelage following the Romanist tradition (tutela). To be noted, however, that in other countries the term ‘guardianship’ is usually used for this concept (Translator’s note). 1 Regarding tutelage, see K. Pantelidou, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introductory remarks on Arts. 1589-1654 and interpretation of the Arts. 15891612, 1627-1629, and 1632-1651, along with the citations thereat; K. Roussos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 1613-1615, 1617-1625, and 1630, along with the citations thereat; A. Pouliadis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 1616 and the citations thereat; A. Vossinakis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 1626, 1631, 1652-1654 and the citations thereat. ∗

PART FIVE ADOPTION1 The adoption of a minor is a legal act through which every bond with the child’s biological family is severed and the child gets fully integrated in the family of the adoptive parent (Art. 1561, 1 CC). Adoption creates an artificial kinship between the adopted and his descendants and the adoptive parent (or parents) and all of their relatives (Art. 1561, 2, 3 CC). Adoption always requires a court decision and is regulated by Articles 1542-1588 of the Greek Civil Code. The Greek Civil Code, after it was modified by L. 2447/1996, basically regulates the adoption of a minor. Adoption of an adult is only exceptionally allowed and only when the adopted is a relative of the adoptive parent by blood or marriage alliance up to the fourth degree (Art. 1579 CC). In fact, in this case, i.e. in the case of adoption of an adult, the artificial kinship thus created only links the adopted and his descendants to the adoptive parent. No relationship is created between the adopted and the relatives of the adoptive parent and vice versa (Art. 1585 CC).

1

Regarding adoption, see Th. Papachristou, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introductory remarks to Arts. 1542-1588 followed by an interpretation of the same Arts. and the citations thereat.

PART SIX FOSTER CARE L. 2447/1996 introduced the institution of foster care1 for minors. Foster care is the exercise of actual care over a minor by third parties (foster parents or foster families). The foster parents undertake the actual care of a minor either because they were entrusted with it by the biological parents or the tutor, or because they were entrusted with it by a court decision (Art. 1655 CC). However, it should be noted at this point that the legal relations between the minor under foster care and his biological family or tutor remain unaltered unless otherwise provided by law (Art. 1655 CC). Articles 1655-1665 of the Greek Civil Code refer to the regulation of the institution of foster care for minors.

1

See X. Skorini – Paparrigopoulou, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 1655-1665 and the citations thereat.

PART SEVEN JUDICIAL ASSISTANCE L. 2447/1996 replaced the outdated institutions of ‘judicial interdiction’ and ‘judicial supervision’ by the new, contemporary institution of judicial assistance for the protection of adults.1 The basic characteristics of the institution of judicial assistance are the following: I. The court is given a broad range of alternatives in order to better adjust the institution of judicial assistance to the particular needs of the person in each individual case. II. The personality and dignity of the person placed under judicial assistance is effectively protected. Articles 1666-1688 of the Greek Civil Code regulate matters pertaining to judicial assistance.2

1

Regarding judicial assistance, see A. Koutsouradis – Agg. Georgiadi, Protective Institutions of Civil Law, 2002, p. 45 et seq.; A. Koutsouradis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introductory remarks on Arts. 1666-1688 and interpretation of Arts. 1666-1668 and 1687-1688; Agg. Georgiadi, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 1669-1686 and the citations thereat. 2 Reference to the institution of judicial assistance has been made earlier (see General Principles, Part Three, Ch. C, II, 3).

PART EIGHT JUDICIAL ADMINISTRATION OF ANOTHER’S AFFAIRS L. 2447/1996 replaced the institution of tutelage of absent persons by the broader institution of ‘judicial administration of another’s affairs’ regulated in Articles 1689-1694 of the Greek Civil Code.1 The purpose of this institution is to protect those adults who on account of their absence are unable to take care of their personal affairs. The court, following a petition on the part of anyone having a justified interest in the matter but also on its own motion (ex officio), may appoint an administrator for the management of the estate of absent adults whose place of residence is either unknown or known but they are prevented from returning in order to take care of their affairs in person. It may also be the case that, although such persons may have appointed a representative, the circumstances are such that it is deemed necessary to have him replaced (Art. 1689 CC). Regarding the way in which the institution of administration of another’s affairs functions, the Greek Civil Code stipulates that the rules governing the tutelage of minors are applicable by analogy (Art. 1693 CC).

1

See A. Koutsouradis – Agg. Georgiadi, Protecetive Institutions of the Civil Law, op. cit., p. 195 et seq.; A. Koutsouradis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 1689-1694.

6. Succession Law

INTRODUCTION I. THE CONCEPT OF SUCCESSION LAW Succession law is the sum total of rules regulating the fate of a person’s property after his death. Consequently, the main aim of succession law is to secure the continuity of economic life after a person’s death. In Greece each person is of course free to regulate matters related to his inheritance as he wishes by drawing up a will, provided that he does not neglect to leave a percentage of his assets to certain persons closely related to him. In case a person does not have a will, the law stipulates the order (as well as the percentage) of those having a right to inherit from the property of the deceased. II. THE SIGNIFICANCE OF TAXING THE INHERITANCE The inheritance tax, computed on a scale according to the amount inherited and the degree of relationship to the deceased, reflects the ‘social spirit’ permeating succession law. The social significance of inheritance tax comes into view with the participation of the state in the inherited assets. The state, other than being called to be an heir in the sixth rank of the intestate succession, also participates through the inheritance tax in every inheritance exceeding the tax free limit established by law.1

1

Matters pertaining to the taxation of inheritance are regulated by the following laws: L. 2961/2001 and L. 3091/2002.

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III. BASIC TERMS OF SUCCESSION LAW Before referring to the rules regulating the fate of the assets of the deceased after his death, we consider it necessary to clarify the meaning of several basic terms of succession law. 1. Succession is the transfer of the property of the deceased to one or more heirs. Depending on whether succession is based on a will or on the provisions of the law, it is distinguished in testamentary and intestate. Contracts concerning the succession of a living person are prohibited. This clearly follows from the provision of Article 368, para. 1 of the Greek Civil Code according to which “A contract referring to the passing of the inheritance of a living person – in part or in whole – whether concluded with such person or with a third party, is null and void.”2 2. Subjects of the succession are the principal and the heir. Principal is every natural person who died or was declared missing3 and whose property is to be distributed among his heirs. Heir is the general, the universal successor of the principal (successio in universum jus). Only the person – natural or legal – who existed at the time of the principal’s death may become an heir. As far as natural persons are concerned, suffices for that person to be at least conceived at the time of the death of the principal (Art. 1711, 1 CC).4 The heir differs from the legatee because the latter acquires a specific property benefit, i.e. he is a specific and not a universal heir of the deceased principal.5 3. The object of succession is the inheritance as a whole (estate). Estate is the sum total of all the transferred property assets. Succession right is the right of the heir to the principal’s estate as a whole. 4. Transfer and acquisition of the estate. Upon the death of the principal, his property as a whole (estate) is transferred to and acquired by the heirs (one or many).6

2

See E. Zervogianni, “On Some Aspects of Inheritance Contracts,” in Revue Hellénique de Droit International, 2003/1, pp. 167 et seq. 3 See above General Principles, Part One, Ch. B, I, 4. 4 A child may be an heir even if he was born through post mortem artificial insemination (Art. 1711, 2 CC). See N. Psouni, Law of Succession, Vol. I, 2004, p. 52 et seq. 5 See below Part Five, Ch. B. 6 See below Part Four, Ch. A.

PART ONE TESTAMENTARY SUCCESSION CHAPTER A THE CONCEPT AND FEATURES OF THE WILL Will is the unilateral, non addressable, mortis causa juridical act through which the testator regulates matters pertaining to his succession as well as certain family relationships. The will is drawn up by the testator in person and is freely revocable (Arts. 1716 and 1763 et seq. CC). More than one person may not draw up a will in the same document (Art. 1717 CC).1 For the will to be valid it is necessary for one of the formal requirements set forth by the Greek Civil Code to be observed. Consequently it should be noted that the will, other than being a unilateral, non-addressable, mortis causa juridical act, it is also a strictly formal and not subject to representation act (Art. 1716 CC).

1

See Ap. Georgiadis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 1716-1717; I. Spyridakis, Succession Law, 2002, p. 35 et seq.; P. Filios, Succession Law, Special Part, 5th ed., 2003, p. 89 et seq.

CHAPTER B DRAWING UP A WILL I. CAPACITY TO DRAW UP A WILL According to Article 1719 of the Greek Civil Code, the following are incapable of making a will: 1. The minors. 2. Those placed under privative judicial assistance in whole, thus being unable to conclude any juridical act, or those who have been expressly deprived of the capacity to draw up a will.1 2 3. Those who at the time of the drawing up of the will are not conscious of their actions or are in a state of psychological or mental disturbance decisively limiting the functioning of their volition. A will drawn up by a person incapable of drawing up a will is null and void (Art. 1718 CC). II. TYPES OF WILLS In the Greek law there are two basic types of wills: ordinary and extraordinary.

1

Regarding judicial assistance, see above General Principles, Part Three, Ch. C, II, 3 and Family Law, Part Seven. 2 The incapacity of the persons placed under judicial assistance begins from the moment the petition to place the person under judicial assistance was filed with the court or the procedural act for the introduction of the case for discussion before the court on the court’s initiative was drafted by the persons having by law the authority to do so, provided that on the strength of the above the subsequent court ruling ordered the placement of the person in question under judicial assistance (Art. 1719, 2 CC).

SUCCESSION LAW

483

The ordinary wills are of the following three kinds: holographic, public, and secret. Extraordinary wills are the wills drawn up at sea (aboard a vessel), during a military campaign, and during a blockade. 1. Ordinary Wills A. The Holographic Will A holographic will (testamentum olographum) is handwritten3 by the testator in its entirety, dated, and signed by him. The date must indicate the year, month, and day of the drawing up of the will (Art. 1721, 1 CC). Simple additions on the margin or in post-script form must be signed by the testator. Deletions, erasures, or other external defects will be evaluated by the court and may bring about the nullity of the will (Art. 1721, 4 CC). The holographic will is not subject to any other formality (Art. 1721, 2 CC). The will which was written by the hand of the third party or typed is not valid as holographic. The holographic will may be deposited with a notary public for safekeeping (Art. 1722 CC) but this does not constitute a required formality for its validity. The person unable to read a written document cannot draw up a holographic will (Art. 1723 CC). B. The Public Will The testator who intends to draw up a public will orally states his wishes before a notary public in the presence of three witnesses or another notary public and one witness (Art. 1724 CC). The notary public writes them down and composes the relevant notarial deed following the formalities required by law.4 Then, after reading it aloud to the testator and the other assisting parties, the will gets signed by the testator and them (Art. 1733 CC).

3

A handicapped testator who has learned to write with his foot or mouth is not excluded from drawing up a holographic will (see N. Papantoniou, Succession Law, 5th ed., 1989, p. 216, footn. 1; Ap. Georgiadis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 1721, No 7). 4 See Arts. 1725-1737 of the Greek Civil Code.

484


As is evident from Article 1730 of the Greek Civil Code, since the public will requires an oral declaration of the testator before a notary public, a mute or deaf mute person cannot draw up a public will. C. The Secret Will For a secret will to be drawn up it is necessary for the testator to hand to the notary public a document, in the presence of three witnesses or a second notary public and one witness, while orally stating to him that the document in question contains his last wishes (Art. 1738 CC). Consequently, two documents are necessary for the secret will: a. the document delivered by the testator to the notary public, and b. the document drawn up by the notary public on the former. The delivered document5 which contains the last wishes of the testator (or the envelope in which such document is placed) gets sealed by the notary public and, following the inscription thereon of the testator’s name and surname and of the time the delivery was made, gets signed by the testator and the other assisting parties (Arts. 1741-1742 CC). Subsequently, in the presence of the assisting parties and according to the formalities specified by law, the notary public draws up a deed which he attaches to the document delivered to him after noting on the latter the number of the notarial deed attached (Art. 1743 CC). 2. Extraordinary Wills Extraordinary will is the will which is drawn up while the testator is under extraordinary circumstances and is unable to secure the regular conditions required for making a public will. The law provides for three kinds of extraordinary wills: a) those drawn up in a sea-vessel during a voyage (Arts. 1749-1752 CC); b) those drawn up by military personnel during a military campaign, blockade, siege, or captivity (Arts. 1753-1756); and c) those drawn up by persons who find themselves in a blockade due to an epidemic or other extraordinary circumstances (Art. 1757 CC).

5

This document may be drawn up either by the testator himself or by a third party, may be handwritten or typed, but in any case it needs to contain the testator’s signature (Art. 1740 CC).

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485

However, because extraordinary wills are only permitted under extraordinary circumstances, their validity is of limited duration. Specifically, the extraordinary will is considered as not having been drawn up if three months have elapsed since the extraordinary circumstances which permitted the making of such will have ceased for the testator and the latter is still alive (Art. 1758, 1 CC). In this case the nullity is supervening (ex post facto).6 7 Naturally, it goes without saying that the testator who finds himself under extraordinary circumstances may, if he wishes, draw up a holographic will instead of an extraordinary one.

6

See above General Principles, Part Three, Ch. E, II, 3, A, b. Regarding the extraordinary wills, see K. Christodoulou, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introductory remarks and interpretation of Arts. 1749-1762. 7

CHAPTER C REVOCATION OF THE WILL I. THE CONCEPT Revocation of the will means that its validity is lifted by an act of the testator. The revocation may be explicit or tacit, whole or partial.1 The law provides for general and specific ways of revoking a will. II. GENERAL WAYS OF REVOKING A WILL Every will may be revoked by the following ways: 1. By explicit declaration to this effect contained in a subsequent will (Art. 1763, 1 CC). 2. By a declaration made before a notary public in the presence of three witnesses (Art. 1763, 2 CC). 3. By the drawing up of a subsequent will the content of which cancels the previous will either in whole or in part or to the extent that it contradicts it (Art. 1764, 1 CC). III. SPECIAL WAYS OF REVOKING A WILL Other then the above mentioned general ways of revoking a will, the Greek Civil Code provides for special ways by which to revoke the holographic and secret will.

1

Regarding the revocation of wills, see Papantoniou, op. cit., p. 308 et seq.; K. Pantelidou, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introductory remarks and interpretation of Arts. 1763-1768; Spyridakis, op. cit., p. 134 et seq.; Filios, op. cit., p. 133 et seq.

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487

Regarding the holographic will, it is stipulated that it may be revoked if the testator destroys the document of the will with the intention of revoking it or attempts such changes in it which usually lead to the conclusion that one wished to revoke the written document (Art. 1765, 1 CC). Regarding the revocation of the secret will, it is stipulated that it is considered revoked if the testator retrieves from the notary public the document he had previously delivered to him with the declaration that it contains his last will (Art. 1766, 1 CC).

CHAPTER D PUBLICATION OF THE WILL AND DECLARATION OF THE HOLOGRAPHIC WILL AS AUTHENTIC I. PUBLICATION OF THE WILL Publication of the will means that its content is officially announced to the public by the competent court or the competent consular authority. The condition for such publication is that the person having in his possession a will presents or sends it to the competent court1 or consular authority,2 as soon as he is informed of the testator’s demise. Subsequently, the court makes the will public, i.e., after reading it before the audience it registers its entire content in the court minutes.3 The publication of a will by the consular authorities is done by the consul who prepares a report and signs it; in the case of a holographic will, this report is also signed by the person producing the will to the consul.4 It should be noted that in any One-member Court of First Instance and any consular office a special book of wills is kept where they are recorded. In the Athens Court of First Instance a book is kept in which the wills of all 1

Competent court to ‘publish’ a public or secret or extraordinary will is the One-member Court of First Instance of the district where the notary public who drafted the will or with whom it was deposited has his seat (Arts. 740, 1 and 807, 1, 1 CCPr. in conjunction with Art. 1769, 1, 2 CC). For the publication of the holographic will competent court is the Onemember Court of First Instance where the will is presented to be published (Arts. 740, 1 and 807, 1, 1 CCPr.). 2 If the public will has been drafted at the offices of a consular authority or if the secret or extraordinary will have been deposited with a consular authority, said consular authority is competent to publish those wills. The consular authorities are also competent to publish the holographic wills produced to them (Art. 807, 2 CCPr.). 3 See Arts 1771 CC and 807-808 CCPr. 4 See Art. 808, 2 CCPr.

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489

the First Instance Courts of Greece and of all the consular authorities of the country are kept.5 Finally, it should be noted that the omission to publish a will does not affect its validity (Art. 1779 CC). II. DECLARATION OF THE HOLOGRAPHIC WILL AS AUTHENTIC The person who petitions the ‘publication’ of a holographic will by the court may also petition the declaration of it as authentic. The court, after hearing three witnesses certifying the authenticity of the handwriting and the signature of the testator, declares the will ‘authentic’ (Arts. 1776-1777 CC).6

5

See Arts. 1778 CC and 809 CCPr. See Papantoniou, op. cit., p. 325 et seq.; Filios, op. cit., p. 105 et seq. and the citations thereat. 6

CHAPTER E THE CONTENT AND INTERPRETATION OF THE WILL I. THE CONTENT OF THE WILL As is well known, the will contains the last wishes of a person. Such last wishes, however, are not always or not exclusively connected with the devolution of the property of the deceased to persons that are dear to him. With the will it is possible for a person to make various declarations of his volition, such as establishment of a foundation, voluntary acknowledgment of a child born out of wedlock as his own, revocation of a previously drawn will, etc. II. THE INTERPRETATION OF THE WILL Many times issues arise regarding the interpretation of wills. In view of the fact that every effort needs to be made in order to discover the true volition of the testator, other than the general provision of Article 173 of the Greek Civil Code referring to the interpretation of the declaration of will in general,1 succession law contains several interpretive rules. It is worthwhile to refer to a few of them which are probably the most typical ones: 1. If the testator in his will, without furnishing any more precise designation, makes mention of his ‘intestate successors,’ his ‘lawful heirs,’ or his ‘relatives,’ are considered beneficiaries those who at the time of the devolution of the inheritance would be his intestate heirs called to inherit in proportion to their share in the estate (Art. 1790 CC). 1

See above General Principles, Part Three, Ch. D, I. Specifically with regards to the interpretation of wills, see Papantoniou, op. cit., p. 334 et seq.; Filios, op. cit., p. 149 et seq. along with the citations thereat.

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491

2. If the designation of the beneficiary made by the testator fits more than one person and it is not possible to ascertain whom he had in mind, all such persons shall be deemed beneficiaries in equal shares (Art. 1793 CC). Example: K, who had neither a wife nor close relatives, had stated in his testament that he wishes for his nephew George to be the beneficiary. However, he happened to have three nephews taking good care of him, all of which were named ‘George.’ By way of interpretation all three nephews will be considered beneficiaries in equal shares.

3. If only one heir has been instituted but on a limited portion of the estate, the remainder devolves according to the rules of intestate succession (Art. 1801, 1 CC). Example: K had stated in his will that he wished for his brother A to inherit 50% of the estate. It follows by way of interpretation that for the remaining 50% the rules of intestate succession will apply.

CHAPTER F NULL AND VOID AND VOIDABLE WILLS I. NULL AND VOID WILLS According to Article 180 of the Greek Civil Code the null and void juridical act is considered as if it had never been concluded. In the case of a will it is considered as not having been drawn up and whoever has a justified interest may invoke its nullity. That is, it is not required for the null and void will to be declared as such by a court ruling.1 1. A will is null and void right from the start (ab initio) in the following cases: a. if it has been drawn up by a person incapable of making a will; b. if the form required by law was not observed; c. if its content is defective, such as for example when a disposition of the will is illegal or against morality (boni mores) or when it contains an incomprehensible condition, etc. 2. However, a will which is valid in the beginning may become subsequently invalid, in its entirety or regarding a particular disposition, in the following cases: a. if the will was revoked; b. if, in case of an extraordinary will, three months have elapsed from the time the circumstances for an extraordinary testament have ceased for the testator and he is still alive; c. if, on account of error, fraud, or threat of the testator, the will has been declared null and void by the court;

1

See Papantoniou, op. cit., p. 293; Filios, Succession Law, op. cit., p. 190 et seq.

493

SUCCESION LAW

d. if the person named as the beneficiary in the will could not inherit because, for example, he renounced the inheritance. II. VOIDABLE WILL A will is voidable by reason of error, fraud, or threat. As was already mentioned, the voidable juridical act does produce its legal effects but may be declared null and void by a court ruling.2 At this point we should mention a significant deviation from the general principles governing juridical acts. The Greek Civil Code stipulates in Article 143 that, if the law does not provide otherwise, the error referring exclusively to the reasons leading up to the shaping of the will is not substantial (falsa causa non nocet). Consequently, the declaration of will based on error in the reasons leading up to the shaping of the will is not voidable. Regarding testaments, however, the law provides otherwise when stipulating that, if the testator was in error regarding the reasons leading up to the shaping of the will and said reasons − in the absence of which the testator would not have made the provisions he made − are mentioned in the testament in reference to the past, the present, or the future, the testament is voidable (Art. 1784 CC). Example: K, believing that his brother A, who had settled in Australia many years ago, is no longer living, states the following in his will: “Since today that I am drawing up my will my only brother A to whom I owe a lot is no longer living, I name as beneficiary my friend F.” If, after K’s death, his brother shows up, he may demand for K’s will to be declared null and void. This is so because, as can be seen from the text of the testament, K would not have named his friend F as the beneficiary, if at the time he was drawing up his will he knew that his brother was alive.

2

See above General Principles, Part Three, Ch. E, III.

CHAPTER G THE EXECUTOR OF THE WILL ∗

The testator may appoint in his will one or more natural or legal persons who will see to it that the dispositions of the testament are executed (Art. 2017, 1 CC). The office of the executor of the will begins from the time of his acceptance of the office (Art. 2019, 1 CC). At this point it should be mentioned, however, that the appointment of an executor is null and void if at the time he accepted the office he was fully incapable or limitedly capable to conclude juridical acts (Art. 2018 CC). The executor’s task is to implement the dispositions of the will (Art. 2020, 1 CC). In the performance of his duties the executor is obliged to behave with diligence and is responsible vis-à-vis the heir according to the provisions governing mandate for any prejudice caused to the succession by virtue of his fault, even if it is due to slight negligence.1 In case he has assumed the management of the succession, he is also obliged to render account (2023, 1, 2 CC). The executor may demand reimbursement for everything he spent in order to implement the dispositions of the will as well as compensation for any damage he suffered without fault on his part in the performance of his duties, according to the provisions governing mandate.2

To be noted that, despite resemblance in terminology, there are fundamental differences between the Greek and the Anglo-American office of the executor of the will (Translator’s note). 1 See Art. 2023, 1, 1 CC in conjunction with Art. 714 CC. 2 See Arts. 722 and 723 CC. ∗

PART TWO SUCCESSION BY VIRTUE OF THE LAW (OR INTESTATE SUCCESSION) CHAPTER A GENERAL REMARKS Succession by virtue of the law or intestate succession is the one which takes place when either there is no testament or the devolution by testament has been frustrated in whole or in part (Art. 1710, 2 CC).1 It is possible for a person to be succeeded both by testamentary and intestate succession. This happens if only part of the deceased’s estate was disposed of through the will, in which case the non disposed part will devolve to the intestate heirs. The intestate succession is effected by ranks and stirpes. In the Greek Civil Code there are six ranks of intestate succession. The relatives of the deceased belong to the first four ranks. The basic principle of the rank system is that a relative of the next rank is not called to inherit as long as there is another relative in the preceding rank (Art. 1819 CC). For example, a relative of the second rank is not called as long as there is a relative of the first rank. Within one and the same rank the relatives inherit per stirpes. This means that the closer relative to the deceased excludes his descendants in the same stirp (Arts. 1813, 1, 2; 1814, 3; 1816, 3 CC). If, for example, K has three sons and five grandchildren, as long as at the time of his death all three of his sons are alive, only they shall inherit to the exclusion of the grandchildren. But if one of K’s sons had predeceased K, the son’s children, 1

Regarding the traits of intestate succession, see N. Papantoniou, in ERMAK, Introductory remarks to Arts. 1813-1824; Psouni, op. cit., p. 213 et seq.

496


i.e. K’s grandchildren, will take their father’s place in the intestate succession. The surviving spouse, if he/she is called along with relatives of the first four ranks, receives a fixed percentage. In case there are no relatives in the first four ranks, the surviving spouse is called in the fifth rank and receives the entire estate. If there are neither relatives nor surviving spouse, the state is called in the sixth rank.

CHAPTER B RANKS OF INTESTATE SUCCESSION AND SURVIVING SPOUSE I. FIRST RANK In the first rank of intestate succession the descendants are called to ¾ of the estate and the surviving spouse to ¼. In case there is no surviving spouse, the entire estate devolves to the descendants in equal shares (Art. 1813, 1, 1; 1820, 1 CC). Descendants are the children, grandchildren, great grandchildren etc. of the deceased. The closer descendant excludes the more remote of the same stirp (Art. 1813, 1, 2 CC). In the place of the descendant who is not living at the time of the devolution of the estate, i.e. at the time of the principal’s death, enter the descendants who, through the deceased descendant, are related to the principal. This is succession per stirpes (Art. 1813, 2 CC). The children inherit in equal shares (Art. 1813, 3 CC). Example: K A D

S

B E

K = the principal S = the principal’s spouse A, B, and C = the principal’s children D, E, F, and G = the principal’s grandchildren

C F

G

At the death of K, if his children are all living, they inherit ¾ of the estate (in equal shares) and the surviving spouse ¼ of the estate. In case C is not living at the time of the principal’s death, C’s children enter in his place and inherit per stirpes, i.e. F and G split their father’s share. Since C would get ¼ of the estate (i.e.

498


¾ divided by 3) each of C’s two children would inherit ⅛. As regards the children of A (D and E), they will not be entitled to any share if their father is living.

II. SECOND RANK In the second rank of intestate succession are called together the deceased’s parents, siblings, and the children or grandchildren of predeceased siblings (Art. 1814, 1 CC). The parents and siblings1 inherit in equal shares whereas the descendants of predeceased siblings inherit per stirpes (Art. 1814, 2 CC). The surviving spouse inherits ½ of the estate when called in intestate succession along with the relatives of the second rank (Art. 1820, 1 CC). If there is no surviving spouse, the inheritance devolves to the relatives of the second rank. Example: P

M

A

B K, S

C

D

E

K = the principal S = the principal’s spouse P and M = the principal’s parents A and B = the principal’s siblings C, D, and E = the principal’s nephews and nieces

After K’s death the surviving spouse inherits ½ of the estate. P, M, A, and B, if they are alive at the principal’s death, inherit ⅛ each (i.e. after the spouse’s share was taken, the remaining ½ of the estate is divided in four equals shares). If at the time of K’s death P is not alive, the ½ is divided in equal shares between the other three relatives, the mother and the two siblings (M, A, and B). If A had predeceased K, A’s share is divided between his children C and D in equal shares. For example, if A’s share were ⅛, each of his children will receive 1/16 of the estate. E does not receive anything if at the time of K’s death B (the father of E) is alive.

1

Half-brothers and half-sisters, if called along with parents or full brothers and full sisters or with children and grandchildren of full brothers and full sisters, are entitled to ½ of what the share of a full brother or full sister would be. Their descendants, i.e. the children and grandchildren of predeceased half-brothers and half-sisters, will also receive half the portion they would have otherwise been entitled to receive if they were issued from full brothers and full sisters (Art. 1815 CC).

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III. THIRD RANK In the third rank of the intestate succession are called the grandfathers and grandmothers of the principal and from among their descendants their children and grandchildren, i.e. uncles and first cousins of the deceased (Art. 1816, 1 CC). If at the time of devolution of the estate the grandparents on both sides are alive, only they inherit and they inherit in equal shares. If at the time of devolution the grandfather/grandmother from either the paternal or the maternal side is not alive, in the place of the deceased enter his children and grandchildren (Art. 1816, 2, 2 CC). The surviving spouse receives ½ of the estate inheriting in intestacy along with the relatives of the third rank (Art. 1820, 1 CC). In case there is no surviving spouse, the inheritance is divided among those called in the third rank. Example:

P1

D

L

M1

E

M

A

K, S

P2

M2

B

F

K = the principal S = the principal’s spouse. A and B = the predeceased parents of K (for, otherwise, they would inherit in the second rank). P1, M1, P2, and M2 = the pri ncipal’s grandfathers and grandmothers. D, E, and F = the principal’s uncles L and M (D’s children) = K’s first cousins.

After K’s death, the surviving spouse inherits ½. If all four of the grandparents are living, they inherit ⅛ each, i.e. ½ of the estate – after the surviving spouse’s share was taken – divided in four equal shares. If P1 has predeceased, his share of ⅛ devolves in equal shares to his children, D and E, (i.e. 1/16 each) who are K’s uncles. If both P1 and D have predeceased, then P1’s share is divided as follows: 1/16 to E and 1/32 each to the children of D (L and M) who are the principal’s first cousins.

500


IV. FOURTH RANK In the fourth rank of intestate succession are only called the principal’s great grandfathers and great grandmothers who are alive at the time of devolution. They all inherit in equal shares regardless of line (Art. 1817 CC). The surviving spouse inherits ½ of the estate (Art. 1820, 1 CC). V. FIFTH RANK If there are no relatives in the first, second, third, and fourth rank, the surviving spouse is called as an intestate heir to the entire estate (Art. 1821 CC). VI. SIXTH RANK If at the time of devolution of the estate there are neither relatives who are called by law (first to fourth rank) nor surviving spouse, the estate devolves to the state (Art. 1824 CC). VII. THE SURVIVING SPOUSE As was already mentioned, the surviving spouse is called to be an heir in intestacy – with the relatives of the first rank to ¼ and with the relatives of the other ranks to ½ of the estate (Art. 1820, 1 CC). In addition, the surviving spouse, regardless of the rank in which he/she is called, takes as an ‘extra portion’ (praelegatum) the furniture, utensils, clothes, and similar household items used either exclusively by the surviving spouse or by both spouses while the deceased was alive (Art. 1820, 2 CC). However, if children of the deceased spouse survive, their needs are also taken into consideration, to the extent that this is required by special circumstances for purposes of equity (Art. 1820, 3 CC).

CHAPTER C COLLATION I. THE CONCEPT The institution of collation (collatio) allows for certain grants the deceased made to his descendants during his lifetime to be taken into consideration and computed at the time of the distribution of the estate among the heirs in order to secure an equitable determination of each descendant’s share. In principle, collation takes place only in intestate succession and only among the descendants of the principal. The grants that may be collated are restrictively enumerated in the Greek Civil Code. They are the following (Art. 1895, 1 CC): 1. Any donation or grant out of liberality the principal made to his descendants during his lifetime. 2. Any expense the principal incurred during his lifetime for the professional training and education of his descendants, if the amount exceeded the amount commensurate with the principal’s economic standing. Collation is not mandatory. There is no obligation for collation if the principal, when giving the grant or incurring the expenditure for his descendant, expressly excluded it from collation (Art. 1895, 2 CC). II. THE WAY COLLATION IS EFFECTED Collation is effected by adding the value of the grant for which there is obligation to collate to the estate to be distributed among the descendants and subsequently deducting its value from the share of the descendant who is under the obligation to set off (Art. 1899, 1 CC).

502


More specifically: For collation to be effected the following steps are taken: 1. The estate to devolve to the descendants is assessed in monetary terms after deducting from it the share of the surviving spouse. The value of the estate is the value of the gross assets, i.e. prior to deducting the debts of the inheritance at the time of the principal’s demise.1 2. To this value is added the value of the grants to be collated.2 For the determination of the grants’ value is taken into account the value they had at the time they were effected (Art. 1899, 2 CC).3 In this fashion the so-called ‘fictitious’ estate is established. 3. The value of the shares of the descendants in monetary terms is computed on the basis of this ‘fictitious’ estate. In other words the total amount of the ‘fictitious’ estate is divided by the number of shares of the descendants, as determined by the rules of intestate succession. In this calculation the surviving spouse’s share is not computed since it has already been deducted. 4. From the value of the ‘fictitious’ share of the descendant is subsequently deducted the value (in monetary terms) of the grant he is obliged to set off by virtue of the provisions of the law on collation. The remainder constitutes the assessment in monetary terms of the value of the descendant’s share. Example: K (the principal) had a spouse (S) and three children (A, B, and C). The value of his estate was 300,000 euros. According to the rules of intestate succession (first rank), the wife is called to ¼, i.e. 75,000 euros, and the children to the remaining ¾ (225,000 euros), i.e. 75,000 euros each child. If K in his lifetime had given grants to his children (45,000 euros to A as a grant, 30,000 euros to B as a donation, and 15,000 euros to C as a grant), the following will happen: in view of the fact that collation takes place only among descendants, the share of the surviving spouse, i.e. 75,000 euros, will be deducted outright. Subsequently, the value of the estate will be computed as follows: (300,000 – 75,000) + 45,000 + 30,000 + 15,000 = 315,000 euros. According to the ‘fictitious’ value of the estate resulting from the above calculation, i.e. the value of 315,000 euros, the share of each of the three descendants is 105,000 euros (315,000: 3). 1

M. Avgoustianakis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 1899-1900, No 9; Filios, Succession Law, Special Part, op. cit., p. 83 et seq. 2 The time crucial for the assessment of the value of the estate is the time of the principal’s death. See Papantoniou, op. cit., p. 403; Avgoustianakis, op. cit., Arts. 1899-1900, No 10. 3 See Papantoniou, op. cit. p. 403; Filios, op. cit., p. 84 et seq..

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However, since A had already received a grant amounting to 45,000 euros, he will receive only 60,000 euros from the principal’s estate (105,000 – 45,000). B, who had received 30,000 euros as a donation, will receive 75,000 euros from the principal’s estate (105,000 – 30,000). Finally, C, who had already received 15,000 euros as a grant, will get 90,000 euros from the estate (105,000 – 15,000).

PART THREE FORCED HEIRSHIP CHAPTER A CONCEPT, RANKS, AND PERCENTAGE OF FORCED SHARE I. THE CONCEPT OF FORCED HEIRSHIP Forced heirship is the right to inheritance provided for by law to certain persons closely related to the deceased (descendants, parents, surviving spouse), even against the principal’s will. Such heirs are called forced heirs or heirs by law. II. RANKS OF FORCED HEIRSHIP In forced heirship there are two ranks of heirs (Art. 1825, 1, 1 CC). In the first rank belong the descendants of the deceased. It should be noted that, just as it happens in intestate succession, the closer relative excludes the more remote one. In other words, in the first rank of forced heirs we have succession per stirpes. Consequently, the grandchild of the deceased becomes an heir only when the principal’s child, i.e. the father or the mother of the grandchild, has predeceased or been disqualified. In the second rank belong the parents of the deceased. The parents are called to become forced heirs only if there are no descendants. The surviving spouse is always called to inherit as a forced heir, i.e. both in the first and in the second rank.

506


Example: P

M K, S

A

B D

C E

K = the principal S = the principal’s spouse. P and M = the principal’s parents (father and mother) A, B, and C = the principal’s children D and E (i.e. B’s children) = the principal’s grandchildren

Forced heirs of K are his wife S and his children A, B, and C. If B had predeceased the principal, his children D and E (K’s grandchildren) take his place. P and M, the parents of K, are only called to forced heirship if, at the time of K’s death, there are no children or grandchildren. K’s surviving spouse S is always called to forced heirship.

III. THE FORCED HEIRSHIP SHARE According to Article 1825, para. 1, subpara. 2 of the Greek Civil Code, the forced heirship share (pars legitima) is ½ of the intestate succession share.1 Example: K who had a wife, S, and three children, A, B, and C, left his entire estate to X. S , the same as A, B, and C , are entitled to their forced share which is ½ of their intestate share. If S, A, B, and C were to inherit K in intestacy, they would receive the following: S: ¼, A: ¼, B: ¼, and C: ¼ since they all belong to the first rank of intestate succession. Consequently, their forced share is ⅛ each (i.e. ¼: 2).

1

For the determination of the forced heirship share see Arts. 1830 et seq. CC.

CHAPTER B DISINHERITANCE For a number of reasons provided by the law, it is possible for the testator to deprive the forced heir from his share, i.e. to disinherit him (Art. 1839 CC).1 Disinheritance (exheredatio) is effected through the will and can only be based on certain grounds specified by the Greek Civil Code. Such grounds may refer to the descendants, the ascendants, and the surviving spouse. The testator may disinherit his descendant on grounds such as the following: if, for example, the latter made an attempt on the life of the testator, if he intentionally caused him bodily injuries, if he maliciously neglected his lawful obligation for maintenance vis-à-vis the testator, if he leads a dishonorable and immoral life against the testator’s will (Art. 1840 CC). The testator may disinherit his parent if, for example, the latter made an attempt on the life of the testator or if he maliciously neglected his lawful obligation for maintenance vis-à-vis the testator (1841 CC). The testator may disinherit his spouse if at the time of his death he was entitled to bring action for divorce against said spouse, due to the latter’s fault (Art. 1842 CC). The grounds for disinheritance need to exist at the time of the drawing up of the will and be mentioned therein (Art. 1843, 1 CC).

1

See Papantoniou, op. cit., p. 100 et seq.; R. Liossi, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 1839-1845; I. Spyridakis, Disinheritance, 1998; Filios, op. cit., p. 359 et seq. ; Psouni, op. cit., p. 119 et seq.

PART FOUR ACCEPTANCE AND RENUNCIATION OF THE INHERITANCE AND UNWORTHINESS OF HEIR CHAPTER A DEVOLUTION AND ACQUISITION OF INHERITANCE I. THE CONCEPT OF DEVOLUTION OF INHERITANCE The succession devolves at the time of the principal’s death and the heir acquires the right to it ipso jure upon devolution (Art. 1846 CC). The time of devolution of the inheritance is the time of the death of the principal (Art. 1711, 3 CC). II. ACCEPTANCE OF INHERITANCE In view of the fact that the heir may renounce the succession within a given period of time, his right of succession becomes definitive when he accepts the succession. Acceptance is the explicit or implicit declaration of a person that he wishes to be an heir. The act of acceptance is a unilateral, informal, and irrevocable juridical act (Art. 1857, 1 CC). A typical case of explicit acceptance of the inheritance is when the heir or the legatee inherits the right of ownership – or any real right – on an immovable. This is so because the acceptance of the inheritance or legacy pertaining to the acquisition of ownership – or any real right – on an immovable needs to be transcribed1 (Art. 1193, 1 CC). In this case it is

1

See above, Property Law, Part Six, Ch. A, I.

510


obvious that the acceptance by the heir or the legatee needs to result from a public document (Art. 1195, 1 CC). Implicit acceptance exists when the heir neglects to renounce the succession within the four month time period set for renunciation. III. RENUNCIATION OF INHERITANCE The renunciation of inheritance (repudiatio) takes place within a time period of four months as from the time the heir became aware of the devolution and the reason thereof. It is done by way of declaration to the court clerk of the competent for the succession court (Arts. 1847, 1, 1 and 1848, 1, 1 CC).2 The consequence of renunciation is that the succession devolves on the person who would have been called if the heir who renounced it were not alive at the time of the death of the principal (Art. 1856, 2 CC). The devolution is considered to have been effected at the time of the death of the principal (Art. 1856, 3 CC). The state may not renounce the succession devolved on it by reason of intestacy (Art. 1848, 2 CC). Finally, it should be mentioned that partial acceptance or renunciation of the inheritance is prohibited.3 But in case an heir is called to more than one share, either on the same or on different grounds (e.g. both from testamentary and intestate succession), he may accept or renounce each of them separately unless the testator has directed differently (Art. 1853 CC). IV. ACCEPTANCE OF INHERITANCE WITH THE BENEFIT OF INVENTORY The fact that succession is universal (successio in universum jus) implies that the heir is liable even with his own patrimonium for the debts and charges of the succession (Art. 1901, 1 CC). However, the law (Art. 1904, 1 CC) allows for the heir to accept the succession under the benefit of inventory (beneficium inventarii). This 2

Court competent for the succession (succession court) is the court of the last domicile of the principal and, if this cannot be proved, of his last residence; if no residence in Greece can be proved, competent court is the Court of Athens (Art. 120 of the Introductory Law to the Greek Civil Code). See P. Filios, Succession Law, General Part, 5th ed., 2003, p. 78 et seq. 3 This follows from Art. 1851, para. 2 of the Greek Civil Code. See Ast. Georgiadis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 1849-1851, No 32 et seq.

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means that the liability of the heir is limited to the net value of the estate (liability cum viribus hereditatis). Following the acceptance of a succession under the benefit of inventory, the rights and obligations of such succession are separated from the patrimonium of the heir and form a separate and distinct entity (Art. 1905 CC).4 The state5 and certain natural persons who are fully incapable or limitedly capable to conclude juridical acts (such as, for example, the minors, persons under judicial assistance etc.) always accept an inheritance under the benefit of inventory (Art. 1912 CC).

4

See K. Pantelidou, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introductory remarks and interpretation of Arts. 1901-1912; Psouni, op. cit., p. 95 et seq. 5 According to Art. 118, para. 1 of the Introductory Law to the Greek Civil Code, the state is always considered as accepting an inheritance under the benefit of inventory.

CHAPTER B UNWORTHINESS OF HEIR In certain cases, restrictively specified by law, a person may be declared unworthy to inherit the deceased by a court ruling.1 This happens when the heir through his behavior offended the principal’s life, honor or freedom to dispose of his estate (Art. 1860 CC). Both the heir by testament and the intestate heir may be declared unworthy. The same holds for the forced heir, the legatee, or the fideicommissary.2 Not only natural persons may be declared unworthy but legal persons as well to the extent that they are liable for the unlawful acts of their organs.3 When the court ruling declaring the unworthiness of the heir becomes final non appealable, the devolution on the disqualified heir is considered as never having occurred (Art. 1863, 1 CC). The succession devolves on the person who would have been called if the unworthy heir were not alive at the time of the devolution of the succession (Art. 1863, 2 CC). The devolution is deemed to have taken place at the time of the principal’s death (Art. 1863, 3 CC).

1

The action to declare an heir unworthy is lodged by the person who has a lawful interest in the disqualification of the unworthy heir (Art. 1862, 1 CC). See M. Stathopoulos, in ERMAK, Introductory remarks and interpretation of Arts. 1860-1864; Psouni, op. cit., p. 177 et seq. and the citations thereat. 2 See Art. 1862, para. 2 and Art. 1864 of the Greek Civil Code. 3 See P. Christakakou, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introductory remarks to Arts. 1860-1864, No 10 and the references cited thereat.

PART FIVE WAYS FOR PERSONS OTHER THAN THE HEIRS TO DRAW BENEFITS FROM THE ESTATE CHAPTER A FIDEICOMMISSARY SUBSTITUTION OF HEIR ∗

(OR FIDEICOMMISSION) I. THE CONCEPT As defined in Article 1923, para. 1 of the Greek Civil Code, fideicommissary substitution of heir or fideicommission exists when the testator imposes on the heir the duty to surrender the succession he received or part thereof to another, after an event or time period. The fideicommission may be instituted only by a will. Examples: −Testator K bequeathed his estate to his daughter A but he also stipulated that his estate would devolve on her son (his grandson) after A’s death. − The testator bequeathed his estate to his brother C but he also stipulated that his estate would devolve on his grandson E when the latter reaches majority.

For the terminology used in this section it should be mentioned that the English terms are basically derived from the Latin word fideicommissum-(pl) fideicommissa which under Roman law signified that the testator, by placing his trust in his heir, directed him to transfer the inheritance to a third person at a given time or upon a stated condition. The person trusted by the commissioning principal to effect such transfer was the fiduciarius, the transferred inheritance the fideicommissum, and the third person who would thus become the beneficiary by substitution the fideicommissarius. See Petropoulos, op. cit., p. 1501 and Webster’s Third New International Dictionary, 3d unabridged edition (Translator’s note). ∗

514


The initial heir who needs to surrender the estate − all or part of it − to the substitute heir is called fiduciary (‘burdened’ heir), whereas the second heir is called fideicommissary. II. TIME OF DEVOLUTION OF THE FIDEICOMMISSION Time of devolution of the fideicommission is the time at which the designated by the testator event or point in time came to pass. In case the testator did not specify such time or event, the time of devolution of the fideicommission is the time of the testator’s death (Art. 1935, 1 CC). If a child is born following post mortem artificial insemination and his father in his will has designated him to be his heir, the child is not considered heir by fideicommissary substitution. According to Article 1711, para. 2 of the Greek Civil Code, the father’s inheritance will devolve upon the child as the deceased’s heir (Art. 1924 CC).1 Up until the time that the estate devolves on the fideicommissary, the fiduciary or ‘burdened’ heir may dispose of the assets only if it is required by the rules of ordinary administration or if the fideicommissary consented to it.2 These limitations are not applicable if the fideicommissary has been instituted on whatever shall be found in the succession at the time of its devolution on him or if the testator has allowed the fiduciary (‘burdened’ heir) to freely manage the succession (Art. 1939 CC). As soon as the succession devolves on the fideicommissary he may accept or renounce it following the relevant provisions of acceptance or renunciation of the will by the heir (Art. 1940 CC). If the devolution of the fideicommission is frustrated, for example because the fideicommissary renounced it or was declared unworthy or died before the devolution, the succession stays with the fiduciary (‘burdened’ heir).3

1

See Psouni, op. cit., p. 58. See Arts. 1937, 2 CC and 818 CCPr. 3 See K. Roussos, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 1936, No 1. 2

CHAPTER B LEGACY I. THE CONCEPT Legacy is the specific property benefit one acquires through a will (Art. 1714 CC). Examples: − K appointed his son A and his daughter B as his heirs and left his library to his nephew C as a legacy. − K appointed his son A as his heir and left two of his paintings to his friend F as a legacy.

Legacy may be instituted only by testament. The person who benefits from the legacy is called legatee whereas the person who is obliged to give the property benefit to the legatee is called ‘burdened’ heir. Time of devolution of the legacy is the time of death of the testator (Art. 1997, 1 CC). II. ACCEPTANCE AND RENUNCIATION OF LEGACY The acceptance and renunciation of a legacy are effected by way of a declaration to the ‘burdened’ heir. The declaration takes place only after the devolution of the legacy, is not susceptible to condition or time-clause, and must concern the entire legacy (Art. 2001, 2 CC). This declaration has no special time frame within which it should be made and is not subject to form. Form is required, and in fact the form of a public document, if the legacy consists in transferring to the legatee the ownership of an immovable or any other real right on an immovable.

516


If the legatee accepts the legacy, his right becomes definitive. In case the legatee renounces the legacy, the granting of the legacy to him is frustrated. III. THE DIFFERENCE BETWEEN HEIR AND LEGATEE The basic difference between heir and legatee is that the heir is universal heir to the deceased whereas the legatee specific. This is so because the heir receives the entire estate whereas the legatee receives only a certain item or items. CHAPTER C CHARGE (MODUS) Charge (modus) is the obligation to carry out a certain performance imposed by the testator on the heir or the legatee (Art. 1715 CC). The types of performance imposed on the heir or the legatee may vary in content.1 Example: The testator may impose on the heir to give yearly a certain amount of money to a foundation in his birthplace which cares for the physically challenged or to arrange for a poetry collection of his to get published.

1

See Papantoniou, op. cit., p. 160. Ap. Georgiadis, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Art. 1715 and the citations thereat.

CHAPTER D DONATION MORTIS CAUSA Donation mortis causa is the donation agreed under the suspensive condition either that the donor will predecease the donee or that donor and donee will die simultaneously without in the meantime the donee having the enjoyment of the things donated (Art. 2032 CC).1 A notarial deed is always required for the donation mortis causa, regardless of whether the thing donated is movable or immovable (Arts. 2032 and 498 CC). When the thing donated mortis causa is an immovable or a real right on an immovable, transcription is also necessary (Art. 1192, 1 CC). The donation mortis causa is freely revocable by the donor (Art. 2033, 1 CC). The declaration of revocation is effected by notarial deed of which the donee is notified. If the revocation concerns an immovable, it should also be transcribed (Art. 2033, 2 CC).

1

See in this regard Agg. Georgiadi, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introductory remarks and interpretation of Arts. 2032-2035; Spyridakis, op. cit., p. 635 et seq.; Filios, Succession Law, Special Part, op. cit., p. 367 et seq.

PART SIX CERTIFICATE OF HEIRSHIP CHAPTER A THE CONCEPT The certificate of heirship is a certificate issued by the succession court1 which determines the heir(s) of the deceased and their share in the inheritance. The certificate of heirship also mentions the fideicommissary, the legatee, and the executor of the will.2 The certificate of heirship is issued following a petition to this effect submitted to the succession court by the heir, the fideicommissary, the legatee, or the executor of the will.3 The court, however, issues the certificate of heirship to the petitioner only if it considers that the facts mentioned in the petition have been proved (Art. 1961, 1 CC). The certificate of heirship is issued by the clerk of the court of succession.4

1

See above Part Four, Ch. A, III, footn. 2. See Arts. 1956 and 1961 CC and Art. 819 CCPr.; See also N. Klamaris, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Introductory remarks to Arts. 1956-1966 and interpretation of the Arts. 1956-1961, along with the citations thereat; Spyridakis, op. cit., p. 461 et seq. and the citations thereat. 3 See Art. 819, 1 CCPr. 4 See Art. 819, 2 CCPr. 2

CHAPTER B CONSEQUENCES OF ISSUANCE OF THE CERTIFICATE OF HEIRSHIP The certificate of heirship creates a presumption that the heir, or the fideicommissary, or the legatee, or the executor of the will mentioned therein have the rights stated in it and that they are not limited by provisions other than those referred to in the certificate in question.1 This presumption is rebuttable, i.e. it may be disproved by evidence to the contrary produced by every interested party. Every juridical act of the person named in the certificate of heirship as heir, fideicommissary, legatee, or executor of the will, which is concluded with a third party – or of a third party with the above – is valid in favor of the third party to the extent that the above mentioned presumption is valid; unless the third party knew about the inaccuracy of the certificate of heirship, or about the existence of a petition seeking its surrender to the court, or its declaration as invalid, or its revocation or modification.2

1

See Art. 821 CCPr. and see L. Kitsaras, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 1962-1966 and the citations thereat. 2 See Arts. 1963 CC and 822 CCPr.

PART SEVEN JUDICIAL LIQUIDATION OF SUCCESSION With the judicial liquidation of the succession which is ordered by the court following a petition by the creditor of the succession (Art. 1913, 1 CC), the succession is ipso jure separated from the personal patrimonium of the heir and forms a separate group under the administration of a liquidator (Art. 1914 CC). The institution of judicial liquidation of the succession on the one hand protects the creditors of the inheritance from acts of the heir or of his personal creditors, and on the other hand safeguards the proportionate satisfaction of the creditors in case the assets of the estate do not suffice to pay them off.1

1

See N. Nikas, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 19131922; Spyridakis, op. cit., p. 545 et seq.; P. Filios, Succession Law, General Part, op. cit., p. 156 et seq. and the citations thereat.

PART EIGHT VACANT SUCCESSION The succession is considered vacant (hereditas jacens) if the heir is unknown or if it is uncertain whether he accepted the succession or not. In this case the succession court1 appoints a curator to the vacant succession following a petition by the party having a lawful interest or even ex officio (Art. 1865, 1 CC).2 The institution of vacant succession aims at avoiding the uncertainty as to the identity of the heir.3 The curator of a vacant succession represents the heir and administers the estate (Art. 1866, 1 CC).

1

See above Part Four, Ch. A, III, footn. 2. See A. Pelleni, in Georgiadis – Stathopoulos, Commentary on the Civil Code, Arts. 18651970; Spyridakis, op. cit., p. 431 et seq., Filios, Succession Law, General Part, op. cit., p. 80 et seq. and the citations thereat. 3 See Papantoniou, op. cit., p. 169. 2

Index

Absentia, 42 et seq., 172, 451 et seq. Absentee (see Missing person) Abuse (see Right) Acknowledgement of paternity (see also Presumption) - judicial, 464 - results of, 464 - voluntary, 463 et seq. Acquisitive prescription - extraordinary, 396 - ordinary, 394 et seq. Act - juridical (see Juridical act) - material, 105 Action - bringing/lodging an, 90 - ‘condition forming’ /constitutive, 79 - confessory (actio confessoria), 409 - declaratory, 78 - negatory (negatoria), 399 - to perform, 79 - revendicatory (rei vindicatio), 398 et seq. Adoption, 35, 45, 119, 435, 441, 461, 475 Affinity (see Kinship by marriage alliance) Age - to adopt, 45 - computation of, 115 - to conclude employment contract as employee, 45, 119 - to conclude juridical acts, 115, 118 et seq. - to conclude juridical acts for benefits only, 119

- to conclude juridical acts as representative of another, 119 - to consent to adoption, 45, 119 - for delictual liability, 110 et seq. - to dispose of earnings or allocation, 119 - of majority, 34, 115 - to marry, 120, 440 Analogy (see Interpretation) Annulment - of juridical act, 151 - of marriage, 148, 444 Appeal - court of (see Court) - legal proceeding of, 91 Approval (ratification) - comparison with consent, 175 - in falsus procurator, 175 et seq. - in self-contracting, 177 Artificial insemination (see Medically assisted human reproduction) Assignment of claim - conditions for, 296 et seq. - legal effects of, 298 - non assignable claims, 296 et seq. - notification of debtor, 297 Association, 63 et seq. (see also Registration) Assumption of debt - cumulative, 300 - difference from guarantee, 341 - privative, 299 et seq. - transfer of patrimonium or enterprise as a whole, 300 et seq. Attachment, 92 Auction

524

- concept, 92 - cases of, 412, 416, 423, 425, et seq. Bare ownership (see Ownership) Bonitas, 298 (see also Veritas) Books/Records (see Public Books/Records) Breakdown of matrimony (see Marriage) Brokerage, 332 Burdened heir (see Heir) Business usage, 3, 125, 136, 145 et seq., 181, 256, 262 Call upon the debtor to perform (interpellatio), 271 Capacity - for concluding a juridical act, 59 et seq., 60 et seq., 109 - full, 115 - limited, 118 et seq., 168 - for delictual liability, 60, 61 et seq., 110 et seq., 227 et seq. - legal, 37, 39, 59, 110 Care (parental) (see Parental care) Cassation - court of, 89 (see also Court) - review, 89 Causal relation, 210 et seq., 213, 246, 248 Certificate of heirship, 519 et seq. Charge (modus), 516 Citizenship, 45 Civil Law - branches of, - Family Law, 435 et seq. - General Principles, 33 et seq. - Law of Obligations, 179 et seq. - Property Law, 373 et seq. - Succession Law, 479 et seq. - history of, 34 - meaning of term, 33 - usefulness of, 35 Civil partnership

INDEX

- concept, 71 - conditions for acquisition of legal personality, 71 Claim - concept, 77 - for damages (see Damage) - to maintenance, 453 et seq. (see also Maintenance) - for moral damage (see moral damage under Damage) - to participate in the increments, 447 - prescribed claim (see natural/imperfect obligation under Obligation) - prescription of, 97 et seq. (see also Prescription) - relationship with legal action, 78 - relationship with right, 77 et seq. Cohabitation, 435, 456, 457 Cloning, 457 Collation, 501 et seq. ‘Community property’, 448 et seq. (see also co-ownership under Ownership) Compensation - for damages (see Damage) - in kind (in natura), 214 - monetary, 214 - reasonable, 95, 283, 284 Compulsory expropriation, 389 Concurrent fault, 211 et seq. Condition - difference from term, 162 - elements of, 153 - function of, 157 et seq. - genuine, 153 - impacting the juridical act with nullity, 156 et seq. - juridical acts insusceptible of, 155 et seq., 442, 464 - non-genuine, 154 - resolutory, 155, 158 et seq., 160, 161

INDEX

- suspensive, 154 et seq., 157 et seq., 160 et seq. - various types of, 154 et seq. Consanguinity (see Kinship by blood) Consent (see also Approval) - to child’s acknowledgment, 464 - to adoption (see Adoption) - of the judicial assistant, 114, 122 et seq. - to medically assisted human reproduction, 456, 457, 458 - to minor’s employment as an employee, 119, 175 Contract - accessory, 291, 293, 340 - adhesion/accession , 180 et seq., 236, 239 et seq. - burdening a third party, 241 et seq. - concept, 106, 136 et seq. - concerning the succession of a living person, 480 - conclusion of final - offer, 138 - acceptance, 138 et seq. - consensual (solo consensu), 238 - continuous/standing, 349, 356 - delivery, 238, 336, 338 - exploitative, 144 - forced, 180, 236, 238 et seq. - formal, 237, 314, 340, 345, 357, 360 - freedom of (see Principle) - gratuitous (causa donandi), 238, 314, 333, 336, 338, 517 - in favor of a third party, 240 et seq. - informal, 180, 237, 316, 322, 323, 327, 330, 332, 333, 335, 336, 338, 392 - mixed/compound, 239 et seq., 343, 349, 356, 364 - non regulated/innominate, 242, 313, 362 et seq.

525

- onerous (quid pro quo), 238, 316, 322, 323, 326, 329, 343, 349, 356, 360, 364 - reciprocal, 107, 237, 279 et seq., 316, 322, 323, 326, 329, 335, 338, 343, 349, 356, 364 - regulated/nominate, 242, 313, 314 et seq. - self-contracting, 175 et seq. - trilateral, 346, 358, 361 - unilaterally obliging (charging), 107, 237, 314, 332, 333, 336, 338 Court - decision (judgment/ruling) - final non appealable, 43, 65, 67, 424, 426, 427, 428, 429, 448, 512 - irreversible, 43, 440, 448, 451, 453, 462 - judicial decisions (jurisprudence), 25 et seq. - distinctions of civil - of appeal(s), 88 - of cassation (Areios Pagos), 89 - first instance, 87 - justice(s) of the peace, 88 - multi-member court(s) of first instance, 88 - one-member court(s) of first instance, 88 Cover relation, 241 (see also Value relation) Creditor - concept, 185 - default of, 275 et seq. - in guarantee, 340 Culpa lata (see Negligence) Culpa levis (see Negligence) Curator, 522 Custody of a child (see Parental care) Custom, 16, 19 et seq.

526

Damage - claim for - in abusive exercise of a right, 85 - in concurrent fault, 211 et seq. - in debtor’s default, 272 et seq., 282 - in delictual liability (see Liability) - in error, 126, 135 - in fraud, 129 - in impossibility of performance, 268 et seq., 282 - in improper performance (malperformance), 274, 285 - in lack of power of attorney, 175 - in management of another’s affairs (negotiorum gestio), 253 - in private justice (self-rule) cases - self-defense, 95 - self-redress, 94 - state of necessity, 95 et seq. - in protection of the legal person, 62 - in protection of natural persons, 50, 52, 54 - in stage of negotiations, 136 et seq. - in specific contracts - contracts burdening a third party, 242 - deposit, 339 - earnest, 291 - franchise contract, 371 - lease of a thing, 324 - leasing contract, 347 - mandate, 334 - penalty clause, 294 - sale, 320 - time-sharing, 352 - in stage of pendency of condition, 158, 159 - in threat, 131

INDEX

- computation of benefits in the assessment of, 211 - concept, 207 et seq., 246 - types of, - moral, 51, 52, 62, 207, 246 - pain and suffering, 208, 247 - property, 207, 246 - lost profit, 208 - positive damage, 208 Data, personal (see Personal data) Date certain (ascertained), 413, 414, 419 (see also Document) Debt - assumption of (see Assumption of debt) - release of (see Release of debt) Debtor - concept, 185 - default of, 270 et seq. - fault of, 272, 282 Decision (see Court; see also European Union/European Community Law) Default - creditor’s, 275 et seq. - debtor’s, 270 et seq. - by one of the parties in reciprocal contracts, 284 et seq. Defect - liability for, 318 et seq., 324 et seq. - in title, 316, 324, 353 - material, 316, 324 Defendant, 79, 90 Defendant’s plea (see Plea) Delict/tort (see Offense) Delictual liability (see Liability) Deposit - conclusion of, 338 - obligations of the parties, 338 et seq. - termination of, 339 Deposit with a public body - effects of, 307 et seq. - reasons for, 306 et seq. Dereliction (see Finding of a lost thing)

INDEX

Descent - maternal, - by birth, 462 - by medically assisted human reproduction, 462 - paternal, - acknowledgment of paternity - judicial, 464 - voluntary, 463 et seq. - presumption of, 463 Detention, 382 Disinheritance, 507 Divorce - contested, 43, 451 et seq. - by mutual consent, 450 et seq. - results of, 453 et seq., 471 et seq. Document, - drawn upon declaration before public authority, 141 et seq. - cases of - the parents re the children’s surname, 465 - renunciation of inheritance, 510 - notarial, 141 - cases of - cohabitor’s consent for artificial insemination, 456 - cohabitor’s or spouse’s consent for post mortem artificial insemination, 457 - constitution of ‘community property’ between spouses, 448, 449 - donation inter vivos, 314 - donation mortis causa, 517 - establishment of foundation, 68 - constitution of mortgage, 424

527

- constitution of pledge, 414 - constitution of servitudes, 405, 406 - public will, 483 - secret will, 484 - self-contracting, 177 - conclusion of timesharing contract, 350 - transfer of ownership on immovables, 391 - private, 140 - of ascertained date (see Date certain) - electronic, 140 - facsimile, 140 - teletype, 140 - written document - re constitution of association, 64 - re civil partnership, 71 - re factoring, 357 - re fictitious pledge, 419 - re franchise, 368 - re constitution of fund raising committee, 70 - re guarantee, 340 - re leasing, 345 - in parents’ agreement re children in divorce, 451 - in parents’ agreement with surrogate mother, 458 - re holographic will, 483 Dolus (see Intention) Domestic law, 4 et seq. Domicile - concept, 47, 105 - difference from residence, 49 - legal/obligatory, 48 - as place of performance, 260 et seq. - special, 48 - voluntary, 48 Donation - inter vivos, 314 et seq. - mortis causa, 517

528

Dowry (abolished institution), 34 Earnest/earnest contract, 291 et seq. Easement (see Servitude) Embryo (see Nasciturus) Employment contract - conclusion of, 326 - difference from contract for work, 332 - for a fixed term, 328 et seq. - for an indefinite period, 329 et seq. - obligations of the employee, 327 - obligations of the employer, 328 - termination of, 328 et seq. Engagement, 439 Equality of sexes, 34, 45, 436, 445 et seq. Error - as to the declaration of the will, 133 et seq. - essential, 133 et seq. - non essential, 134 - leading to the annulment of marriage, 444 - in the reasons leading up to the shaping of the will, 124 et seq., 442, 493 - essential, 125 et seq. - non essential, 126 et seq Euro, 198 et seq. European Union/European Community Law - primary community law, 9 et seq., 22 - secondary/derivative community law - decisions, 15, 24 - directives, 13 et seq., 22 et seq. - regulations, 13, 22 - recommendations and opinions, 15

INDEX

Evidence, 91 Exchange, 322 et seq. Extinction - of obligation (see Obligation) - of a right (see Right) Extra portion (praelegatum), 500 Factoring contract - concept, 355 - conclusion of, 357 et seq. - duration and expiration of, 359 - operation of, 358 et seq. - relationship among the parties, 358 et seq. - types of, 357 - usefulness of, 357 Family - adoptive, 435, 475 - foster, 35, 436, 476 - legal, 435 - natural, 435 - right (see Right) Fault - concept, 227 - concurrent (see Concurrent fault) - degrees of - intention/willful conduct, 228 et seq. - negligence, 229 et seq. Fideicommissary, 514 Fideicommission, 513 et seq. Fiduciary, 514 (see also ‘burdened’ heir) Force majeure (vis major), 100, 228 Forced heir, 505 et seq. Forced heirship, 505 - ranks of, 505 et seq. - share of (pars legitima), 506 Forcible execution, 92 Forfaiting contract, 360 et seq. Form - constitutive, 139 et seq. - evidential, 142 Foster care, 35, 436, 476

INDEX

Foundation, 68 et seq. Franchise contract - advantages and disadvantages, 365 et seq. - concept, 363 - obligations of the parties, 369 et seq. - termination of, 370 et seq. Fraud, 127 et seq., 493 Fund raising committee, 70 et seq. Gender, 45, 439, 457 Good faith (bona fides) - concept, 3 - objective, 83, 125, 136, 145, 147, 176, 181 et seq., 225, 255 et seq., 258, 262, 286, 317, 318, 327 et seq. - principle of (see Principle) - subjective, 181, 393, 394, 395 Good morals (boni mores), 2, 83 et seq., 130, 143 et seq., 150, 182, 227, 236, 250, 492 Government Gazette, 17 et seq., 69, 71 Guarantee - conclusion of, 340 - difference from cumulative assumption of debt (see Assumption of debt) - operation of, 340 Guardianship (see Tutelage of minors) Habitation (see Servitude) Health, 46 Heir - ‘burdened,’ 515 - difference from legatee, 516 - fideicommissary substitution of (see Fideicommission) - forced (see Forced heir) - general/universal, 480 - unworthiness of, 512 Heirship - certificate of

529

- concept, 519 - consequences of issuance, 520 (see also Presumption) - forced (see Forced heirship) Hellenic Data Protection Authority (see Personal data) Honor, 46 Immovable (see Thing) Important reason/cause, 25, 143 et seq., 143, 328, 360, 370, 420, 440 Impossibility of performance - arising from fault, 265, 268 et seq., 282 et seq. - consequences in general, 268 et seq. - consequences in reciprocal contracts, 281 et seq. - not due to fault, 265 et seq., 269, 281 et seq. - types of - economic, 267 - initial, 266 - legal, 267 - moral, 268 - natural, 267 - objective, 266 - partial, 267 - subjective, 266 - supervening, 266 - total, 266 Incapacity - for concluding juridical acts - full - absolute, 115 et seq. - relative, 116 et seq. - limited, 118 et seq. - for delictual liability, 110, 227 et seq. Industrial property, 53, 363 et seq. Inheritance (see Succession) Intellectual property, 8, 53, 105, 363 et seq. Intention (willful conduct/dolus) - eventual, 229 - immediate, 229

530

Interest - compound, 206 - concept, 203 et seq. - contractual, 151, 204 - discount, 205 - legal, 205 - rate of, 204, 205 International - law - branches of, 8 - generally accepted rules of, 20 et seq. - treaties (ratified), 21 Interpellatio (see Call upon the debtor to perform) Interpretation, - of juridical acts - ‘condition forming’/ constitutive, 147 - objective, 146 - subjective, 145 - supplemental, 146 et seq. - of rules of law - authentic, 28 et seq. - scientific, 29 - literal, 29 - rational, 29 et seq. - teleological, 30 et seq. - corrective, 31 - supplemental (by analogy), 31 et seq. - of the wills, 490 et seq. Intestate succession (see Succession) Judicial administration of another’s affairs, 478 Judicial assistance - combination of privative and concurrent, 114, 123 - concept, 35, 111 et seq., 477 - concurrent, 114, 122 - lifting of, 115 - privative, 113 et seq., 116, 121 et seq. - procedure, 112

INDEX

Judicial decisions/jurisprudence (see Court) Judicial interdiction (abolished institution), 35, 111, 436, 477 Judicial supervision (abolished institution), 35, 111, 436, 477 Judicial liquidation of succession, 521 Juridical act - capacity for concluding (see Capacity) - conditions for conclusion, 109 et seq. - content of, 142 et seq. - contract (see Contract) - difference from material act, 105 - difference from quasi juridical act, 104 - exploitative, 144 - formal, 68, 108, 481 - gratuitous, 107 - informal, 108, 171 - interpretation of (see Interpretation) - inter vivos, 108 - of a legal person, 60 et seq. - mortis causa, 108, 481 - null and void - concept, 148 et seq. - difference between null and void and voidable, 152 - types of nullity (see Nullity) - onerous, 107 - quasi, 104, 271, 297 - unilateral, 106, 135 et seq., 169, 176, 235, 481, 509 - voidable, 125, 128, 130, 134, 151 et seq. Jurisprudence (see Court) Kinship - by adoption (artificial), 461, 475 - by blood (consanguinity), 47, 460

INDEX

- by marriage alliance (affinity), 47, 460 et seq. Land Registry - operation of, 391, 433 - principles of, 434 Law - difference from custom, 2 - difference from morality, 1 et seq. - divisions of, 4 et seq. - enters into force, 17 et seq. - of the European Union/ Community (see European Union/Community Law) - formal, 16 - interpretation of (see Interpretation) - mandatory (jus cogens), 28, 98, 180, 257, 390 et seq., 414 et seq., 436, 445, 450 et seq., 481 et seq., 501 et seq., - non-mandatory (jus dispositivum), 28, 180, 190, 258, 260 et seq., 261 et seq. 501 - repeal of, 18 - retroactive effect of, 19 - sources of, 16 et seq. - substantive, 16 - vacuum in (see Vacuum) Lease of a thing - conclusion of contract, 323 - difference from loan for use, 338 - obligations of the parties, 323 et seq. - termination of contract - for a fixed term, 325 - for an indefinite period, 325 et seq. Leasing - concept, 343 - conclusion of contract, 345 - operation of, 346 et seq.

531

- relationship among the parties (lessor-lessee-supplier), 346 et seq. - termination of, 347 et seq. Legacy - acceptance and renunciation of, 515 - concept, 515 - difference from heirship, 516 Legal - action (see Action) - capacity (see Capacity) - person (see Person) - personality (see Personality) - presumption (see Presumption) - relation, 73 - remedies, 92 - representation (see Representation) Legal interdiction (abolished institution), 111 Legal person - administration of, 60 - capacity of - for delictual liability, 61 et seq. - to conclude juridical acts, 60 et seq. - of civil law (see Association, Foundation, Fund raising committee, Civil partnership) - of commercial law, 58 - dissolution of, 63, 67, 70, 71 - formation of, 59, 64, 68 et seq., 70, 71 - legal capacity of, 59 - liquidation of, 63, 68 - of mixed nature, 58 - protection of, 49, 62 - of public law, 57 et seq. - seat of, 60, 64, 69 - title of, 60, 64 Lessee - in lease of a thing, 323 - in leasing contract, 343 - in time sharing contract, 348 et seq.

532

Lessor - in lease of a thing, 323 - in leasing contract, 343 - in time-sharing contract, 348 Liability - civil - capacity for (see Capacity) - concept, 183, 209, 223 et seq. - conditions for, 225 et seq. - contractual, 183, 209, 223 - re acts of an underling, 231 et seq. - re anomalous development of the obligation, 265 et seq. - re normal development of the obligation, 255 et seq. - extra-contractual, 223 et seq., 243 et seq. - for the acts of an underling, 231 et seq. - from delictual acts, 61 et seq., 85, 184, 209, 225 et seq., 245 et seq. - from negotiorum gestio, 252 et seq. - from unjust enrichment, 184, 247 et seq. - joint and several, 62, 216 et seq., 234 - of legal persons (see Legal person) - objective, 184, 210, 222 - pre-contractual (stage of negotiations), 136 et seq., 183, 209 - subjective, 184, 210, 222 - criminal, 221 - disciplinary, 221 Liquidator in succession law, 521 Litigation (steps in), 89 et seq. Loan, 334 et seq. Loan for use - concept, 335 et seq. - conclusion of contract, 336 - difference from lease of a thing, 338

INDEX

- difference from loan, 337 - expiration of contract, 337 - obligations of the parties, 336 Maintenance - children/parents (mutual), 468 et seq. - in re disinheritance, 507 - to former spouse, 453 et seq. Management of another’s affairs (negotiorum gestio), 252 et seq. Mandate - concept, 333 - conclusion of contract, 333 - obligations of the parties, 334 - termination of, 334 Mandatory rule of law (jus cogens) (see Law) Marriage - civil, 34, 46, 443 - defective, 444 - dissolution of (see also Divorce) - death, 450 - divorce - contested, 451 et seq. - by mutual consent, 450 et seq. - formalities, 46, 442 et seq. - impediments, 440 et seq. - major breakdown, 452 - non existent, 444 - null and void, 444 - religious, 46, 442 et seq. - requirements (positive), 439 et seq. - results - for the children, 465 et seq. - for the spouses - personal, 445 et seq. - property, 446 et seq. - voidable, 444 Material damage (see Damage) Maternity/maternal descent - concept, 462

INDEX

- in medically assisted human reproduction, 462 - presumption of (see Presumption) Medically assisted human reproduction, 35, 455 et seq. Memory of the deceased (see Right) Messenger, 165 Missing person - conditions, 42 - consequences, 43, 448, 450, 451 et seq., 480 - process of declaration, 42 et seq. - reappearance of, 44 Monetary obligations - concept, 195 - payment of, 202 et seq. - rules applying to, 202 Money - in the broad sense, 195 et seq. - accounting, 196 - electronic, 196 - plastic, 196 - euro (see Euro) - in the strict sense, 196 et seq. - value of, 197 Moral damage (see Damage) Moratorium, 100 Mortgage - constitution of - title for, 423 et seq. - public recordation of, 424 - lifting of - deletion, 426 - extinction, 426 - prenotice of (see Prenotice) Name (see also Surname) - assumed, 51 - of children, 44 et seq., 465 et seq. - of spouses, 45, 445 - right to a, 51 et seq. Nasciturus, 39 et seq., 480

533

Natural person - beginning of, 39 - end of, 40 - presumption of death, 41 - properties of, 44 et seq. - protection of, 49 et seq. Negligence - gross (culpa lata), 229 - slight (culpa levis), 229 et seq. Negotiations (see Liability) Non-mandatory rule of law (jus dispositivum) (see Law) Nullity of the juridical act - absolute, 150 - concept, 148 - difference from inoperative, 149 - difference from voidable, 152 - full, 150 - initial, 149 - partial, 150 - relative, 150 - the special case of decision of the Meetings of the Members of the association, 148 - the special case of marriage, 148, 444 - supervening, 149, 485 Numerus clausus of real rights, 373 Obligation - alternative, 193 et seq. - difference from alternative faculty, 195 - simplification of, 194 - contractual, 235 et seq. - development of - anomalous, 265 et seq. - normal, 255 et seq. - divisible, 215 et seq. - extinction of (see Payment by debtor, Deposit with a public body, Other performance in lieu of payment, Payment by a third party, Release of debt, Set off)

534

- extra-contractual - from negotiorum gestio (see Management of another’s affairs) - from unjust enrichment (see Unjust enrichment) - from unlawful acts, 243 et seq. - generic, 189 et seq. - indivisible, 218 et seq. - joint and several (in solidum), 62, 216 et seq., 300 et seq. - monetary (see Monetary) - multi-party, 215 - natural/imperfect, 187, 439 - reinforcement of, 289 et seq. - specific, 189 - transfer/disposition of - general (succession), 295, 480 et seq. - special - assignment of claim, 296 et seq. (see also Assignment) - assumption of debt, 299 et seq. (see also Assumption) Offense - civil (tort/delict), 244 - capacity for (delictual liability), 60, 110, 227 et seq. - conditions for delictual liability, 245 et seq. - results of, 246 et seq. (see also Damage) - criminal, 244 - disciplinary, 244 Other performance in lieu of payment, 305 Ownership - acquisition of - derivative, 390 et seq. - immovables, 390 et seq. - movables, 392 et seq. - original

INDEX

- by acquisitive prescription, 394 et seq. - by finding a lost thing, 396 et seq. - by occupancy of a derelict thing, 393, 396 - bare, 386 - co- (joint), 386 et seq. (see also ‘Community property’) - full, 386 - horizontal (of a storey or apartment), 387 - loss of, 397 - protection of, 398 et seq. - restrictions of - by law, 388 et seq. - from third party rights, 389 - right of, 74 - vertical, 387 Pain and suffering (see Damage) Parent-children relationship - special mutual obligations, 467 et seq. - parental grants (see Parental grants) - child’s surname, 465 et seq. Parental care - cessation of, 473 - concept, 470 - beginning of, 470 - exercise of - over children born out of wedlock, 472 et seq. - in case of divorce, annulment, or interruption of conjugal living, 471 et seq. - during marriage, 471 Parental grants, 391, 467 et seq., 501 (see also Tax) Parental responsibility (see Parental care) Paternal descent (see Descent) Payment - by debtor, 304 - by third party, 259 et seq., 304

INDEX

- other performance in lieu of, 305 Penalty clause (stipulatio poenae), 293 et seq. Performance - impossibility of (see Impossibility of performance) - improper /defective /malperformance, 274, 285 - place of, 260 et seq. - plea of unperformed contract (exceptio non adimpleti contractus), 279 et seq. - time of, 261 et seq. - way of fulfilling - in good faith, 256 et seq. - partial, 258 - by a third party, 259 et seq. Person (see Legal person/Natural person) Personal data, 54 et seq. Personality - concept of, 49 et seq. - protection of, 50 et seq. - right to one’s (see Right) Plaintiff, 79, 90 Plea - defendant’s, 79, 90, 97 - of prior execution, 341 - of right of retention, 264 - of the unperformed contract (exceptio non adimpleti contractus), 279 et seq. (see also Performance) Pledge - common, 413, 414 et seq. - fictitious/by registration, 413, 418 et seq. - legal, 413 Possession - acquisition of, 382 - in acquisitive prescription, 395, 396 - concept, 374, 381 et seq. - loss of, 382 et seq. - protection of, 383

535

Post mortem artificial insemination, 457, 480, 514 Power of attorney (see also Representation) - form of, 171 - lack of (falsus procurator), 174 et seq. - self-contracting, 176 et seq. - termination of, 171 et seq. - transactions after termination of, 173 et seq. - types of, 170 - ways of granting, 169 et seq. Praelegatum (‘extra portion’), 500 Prenotice of mortgage - constitution of - title for, 428 - recordation of, 428 - lifting of, 428 et seq. Prescription - acquisitive (see Acqusitive prescription) - beginning of, 98 et seq. - concept, 78, 97 et seq. - difference from extinction, 102 - interruption of, 101 - prescribed claims (see natural/ imperfect obligation under Obligation) - suspension of - absolute, 99 et seq. - of completion, 100 et seq. - period of, 98 Presumption - of accuracy of registrations in the land registry, 434 - of contribution to the increment, 447 - of death, 41, 43 - of heirship with certificate of heirship, 520 - of major breakdown in matrimony, 452 et seq. - of maternity, 462 - of paternity, 463 - of simultaneous death, 41 et seq.

536

Principles (of Greek Civil Law) - autonomy of assets in matrimony, 446 - autonomy of private will, 180 et seq. - equality of sexes, 34, 45, 436 - favoring the debtor/ ‘feebler’ party, 182 et seq. - forced heirship, 505 et seq. - freedom of contracts, 180, 236 - good faith (bona fides), 181 et seq., 202, 255 et seq., 317, 328 (see also Good faith) - informality of juridical acts, 108, 139, 180, 237 (in conjunction with the limitations under Document) - inviolability of contracts (pacta sunt servanda), 285 et seq. - liability, 183 et seq., 209 et seq., 222 et seq. - numerus clausus of real rights, 373 - publicity of real rights, 431 et seq. - religious freedom, 46 - testamentary freedom, 479 (in conjunction with the limitations under Forced heirship) Promise - to conclude a contract, 137 - to marry (see Engagement) Property - community (see ‘Community property’) - damage (see Damage) - intellectual (see Intellectual property) - industrial (see Industrial property) Provisional remedies, 92, 428 Public Books/Records of Transcription - cases of transcription - re acceptance of inheritance or legacy pertaining to the

INDEX

acquisition of any real right on immovables, 509 - re donation mortis causa (and its revocation), 517 - re mortgages (in the special books of mortgages), 424, 426, 431 - re pledge by registration, 413, 419 (see also Registration) - re sale of immovables, 391, 431 et seq. - re servitudes, 405 et seq. - re time-sharing contracts, 350 - disadvantages of, 432 - operation of, 431 Quality - agreed, 324 - conceded, 317 et seq. Quasi juridical act (see Juridical act) Reasonable compensation (see Compensation) Recourse (right of) (see Right) Registration - of associations, 65 - of births/deaths, 40, 41, 45 - of civil partnership, 71 - of ‘community property’, 448 - of fictitious pledge, 413, 419 (see also Public Books/ Records) - of leasing contract, 345 Registry of Pledge Offices, 419 Release of debt, 312 Religion, 46 Remedy - legal (see Legal remedies) - provisional (see Provisional remedies) Rent, 323, 325, 346, 349, 352, 413 Representation (see also Power of attorney) - active, 166

INDEX

- concept, 165 - conditions of, 167 et seq. - declaration of will not susceptible to, 167 et seq., 442, 464, 481 - difference from messenger, 165 - direct, 166 - indirect, 166 - of the person under judicial assistance, 113 et seq., 116 - legal, 167 - of children under the parental care, 116, 121, 470 - passive, 166 - in self-contracting (see Selfcontracting) - voluntary, 167 Rescission, 283, 284, 320, 330, 331, 353 Residence, 49 (see also Domicile) Retention (right of) - conditions for, 263 et seq. - consequences of, 264 - difference from plea of the unperformed contract, 280 et seq. - way of exercise, 264 Retroactive effect of law (see Law) Right - absolute (erga omnes), 75 et seq. - abuse/abusive exercise of, 83 et seq. - accessory - pledge, 412 - mortgage, 422 - acquisition of, 80 - change of, 80 et seq. - concept, 73 - ‘condition forming’/ constitutive, 76, 271 - difference from claim, 77, 102 - exercise of, 82 - extinction of, 77, 102, 126, 128, 131, 134, 161, 164 et seq. - family, 74 et seq. - loss of, 81

537

- to the memory of the deceased, 51 - of mixed nature, 75 - to a name (see Name) - obligational, 74 - of ownership (see Ownership) - personal, 74 et seq. - to personal data, 54 et seq. - to one’s personality, 49 et seq., 74, 77 - ‘power conferring’/ to claiming, 75 et seq. - to products of one’s intellect, 53 et seq., 75, 375 - property, 74 - protection of - judicial, 86 et seq. - self-rule (private justice) - self-defense, 94 et seq., 226, 383, 398 - self-redress, 93 et seq., 226, 383, 398 - state of necessity, 95 et seq., 226 - real, 74, 373 et seq. - real security, 411 et seq. - of recourse, 217 et seq., 234 - relative, 76 - of retention (see Retention) - succession, 74, 480 Sale - concept, 315 - conclusion of contract, 316 - guarantee for thing sold, 321 et seq. - liability of the parties, 318 et seq. - obligations of the parties, 316 et seq. - rescission (see Rescission) Self-contracting, 176 et seq. Self-rule (private justice) - self-defense, 94 et seq., 226, 383, 398

538

- self-redress, 93 et seq., 226, 383, 398 - state of necessity, 95 et seq., 226 Servitude - concept, 401 - constitution of, 405 et seq. - extinction of, 408 et seq. - personal - habitation, 403, 407, 409 - limited, 404, 407, 409 - usufruct, 386, 402 et seq., 406, 408 et seq., 409 - predial (real), 401 et seq., 405 et seq., 408, 409 - protection of, 409 Set off - concept, 309 - conditions for, 310 et seq. - types of - involuntary, 309 - voluntary, 309 Simulation - absolute, 132 - relative, 132 Sources of Law (see Law) Specification/concretization of generic obligation (see Obligation) State of necessity, 95 et seq., 226 Substitute (surrogatum) 269 et seq., 281 et seq. Succession/Inheritance - acceptance of, 509 et seq. - acceptance with the benefit of inventory, 510 et seq. - devolution of, 509 - intestate, 480, 495 et seq. - judicial liquidation of, 521 - by ranks, 495, 497 et seq. - renunciation of, 510 - right of (see Right) - per stirpes, 495, 497 et seq. - testamentary, 481 et seq. - vacant, 522 Supervisory council, 474 (see also Tutelage of minors) Supplier

INDEX

- in factoring, 355, 358 - in leasing, 347 Surname - of children, 465 et seq. - of spouses, 445 et seq. Surrogate mother, 457 et seq. Surrogatum (see Substitute) Surviving spouse, 497 et seq., 505 Tax - in arrears to the state, 423 - benefits in leasing, 344 - of inheritance, 479 - re the leased thing, 325 - of parental grants, 391, 468 - in usufruct, 403 Tenement - dominant, 402 - servient, 401 Term - as additional clause to juridical act - difference from condition, 162 - resolutory, 162 - suspensive, 162 - as determination of time, 162 et seq. - as term of extinction (see Extinction) Testamentary succession (see Succession Thing - accessories, 377 et seq. - belonging to no one/derelict (res nullius), 396 - component part, 377 - concept, 375 et seq. - consumable, 376 - dependent, 377 - fungible, 376 - immovable, 345, 376, 377, 390 et seq., 395 et seq., 401, 402, 405 et seq., 411, 422 et seq., 427 et seq., 431 - lost, 396 et seq.

INDEX

- movable, 345, 376, 377, 392 et seq., 395 et seq., 402, 411 et seq. - non-consumable, 376 - non-fungible, 376 - out of commerce (res extra commercium), 378 et seq. - principal, 377 Threat, 129 et seq., 442, 444, 492 et seq. Time-sharing contract - concept, 348 et seq. - conclusion of, 350 et seq. (see also Public Books/Records of Transcription) - protection of the rights of the lessee, 353 et seq. - rights and obligations of the parties, 351 et seq. - usefulness of, 350 Title (see Mortgage, Prenotice of mortgage) Tort/delict (civil offense) (see Offense) Transcription, 391 (see also Public Books/Records of) Treaty (international) (see International) Tutelage of absent persons (abolished institution), 478 Tutelage of minors, 35, 100, 474 Tutor, 474 Underling (see also Liability) - conditions for liability, 232 et seq. - consequences of liability, 233 et seq. Unforeseeable change of circumstances, 285 et seq. Unilateral act (see Juridical act) Unjust enrichment - cases of exclusion of the claim for, 251 et seq. - conditions for, 247 et seq. - consequences of, 250 et seq.

539

- obligation from (see Obligation) Unworthiness of heir, 512 Usufruct (see Servitude) Vacant succession (hereditas jacens), 522 Vacuum in the law (lacuna), 25, 32, 274, 285, 421 Value relation, 241 (see also Cover relation) Veritas, 298 (see also Bonitas) Vis major (see Force majeure) Voidable juridical act - cases of, 125 et seq., 128 et seq., 130, 134, 151, 444, 493 - difference from null and void, 152 - extinction of right to annul, 126, 128, 130 et seq., 134, 151 et seq., 444 Wages, 61, 73, 99, 328 Will (Testament) - content of, 490 - error as to the reasons leading up to the shaping of the will, 493 - executor of, 494 - extraordinary, 480, 484 et seq. - interpretation of, 490 et seq. - null and void, 492 et seq. - ordinary - holographic, 483, 486 et seq., 488, 489 - public, 483 et seq., 487, 488 - secret, 484, 486 et seq., 488 - publication of, 488 et seq. - revocation of, 486 et seq. - voidable, 493 Will (Volition) - to conclude juridical acts, 124 - convergent with declaration - error as to declaration, 133 et seq. - simulation, 131 et seq. - declaration of, 134 et seq.

540

- defects of, - error as to the reasons leading up to the shaping of, 124 et seq., 493 - fraud, 126 et seq. - threat, 129 et seq. Work contract - concept, 329 et seq. - conclusion of, 330 - difference from employment contract, 332 (see also Employment contract) - obligations of the parties, 330 et seq. - termination of, 331 et seq.

INDEX

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