ARHIVELE OLTENIEI - Universitatea din Craiova

Certain aspects of comparative law regardind the letting contact 291An example in this sense is the institution of besman or of embatic 11 ,contract through which the owner concedes for always or for a very long time, abarren land aiming that the receiver should use it building and planting, paying asmall annual redevence, named canon, with the condition that the one that wasreceiving it through concession to be able to transmit to his heirs. This type ofcontract, letting species, has been adopted in the legislation of the legislation of theprincipalities in the year 1818, on a French channel from the old roman law 12 .The law did not request for the availability of this letting form anyformality, the main justification resulting from the fact that the emphyteusis wasperpetual, the usage of a good was transmitted through inheritable way, so thatthe returning to the ancestral birth, deep in time, could be very difficult.Though, the majority of legislations 13 , derived from the roman law orwith roman law influences, interdicted expressly the tacit re-letting 14 , whereimposing requests of publicity for the opposability to the thirds 15 , as a rule, theintabulation and sometimes were demanding the confirmation of the willing“expressed by the owner at a certain period of time, in the sense of themaintenance of the contract 16 . In some systems of law, for the availability ofemphyteusis thelaw was even demanding the authentic form, the Spanish CivilCode from 24.07.1889 – article 1628 and the Portuguese Civil Code from1.07.1867 (art. 1655).In German law though, even if there were some similitude with theRomanian emphyteusis, this institution was only founded on the aspect of thehereditary letting (Erbleiche), which differed at least regarding the form askedad validitatem. The German hereditary letting, unlike the roman besman, had tobe concluded with a written contract, even of the effective giving of thepossession did not have to enclose the document. This contract seems to beunder the aspect of the form of a contract intuitu personae, the interdiction of thetransmission of the usage by the heirs standing as a real proof in this sense.11 Etymologically, the word „embatic”, from the Greek and has the sense of „balance”,as for the emphitesis, it also derives from Greek and it has the sense of „plantation”.12 His origin derives from the concessions of ager vectigalis, commercial goods,commonal goods, from the roman right, by which the patricians maintained ground’s quality andthey grew crops, assuring ground’s work, one of the main sources for living. For further details G.Tocilescu, Etude historique et juridique sur l'emphyteose, Doctorate Thesis, Bucharest, 1883.13 Alesandresco D., The practice and the theoretical explanation of the Romanian civilcode, volume IX, Publishing house Socec&Co. S.A. graphic studios, Bucharest, 1910, pp. 385.14 Belgian legislation in the matter of besman prohibited explicitly the tacit recondition, asin French law, even if a certain expresses foresight was missing we admitted the same rule at leastunder the conflicts aspects of laws, determined by the entering of Civil Code. Baudry et Wahl, Lelouage, tome II-éme, paragraf 1463 - “In our case there is no doubt that tacitly relaocation isinadmissible, if conventions’ emphiteotic term woul be expired under present code, because thiswould mean the foundation of a besman today, as it reffers to 1415 Civile Code article.15 It is the case of Dutch and Portugese legislation.16 Italian and Spanish Law regulated the obligativity that each 29 years the concedent askthe recognition of his right of property from the one in which claimed the good, recognition whichefficiently represented a juridical document of prescription.