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The extinctive prescription of defences, back to the origins of the maxim quæ temporalia sunt ad agendum perpetua sunt ad excipiendum

Thesis

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KeywordsTriple Keywords
Acts, Legislative
Legislative enactments
Laws (Statutes)
Enactments, Legislative
Legislative acts
Law
Context (Linguistics)
Grammar, Comparative and general--Context
Situation (Linguistics)
Volition
Conation
Will
Annals
History

Abstract

The article 1185 of the civil code has been modified by the 2016 reform. Since then, this text decides that the exception based on nullity is perpetual. Therefore, part of the maxim Quæ temporalia sunt ad agendum perpetua sunt ad excipiendum is now included in the law. However, the duration of the other defences has not been fixed by the law.Since the middle of the XXth century, a debate about the existence of a principle of perpetuity of all defences takes place. Jurists who agree with this principle invoke the maxim Quæ temporalia, its old roots, and his continuity throughout centuries. At the opposite side, Jurists who disagree consider that this maxim has been abrogated in 1804. An historical study of the maxim helps understanding its cause, the context of its creation and its evolutions. These informations renew the debate concerning its incorporation into positive law.The maxim must have been created during medieval period. By offering a privilege ot the weakest party, the maxim seeks equity. As the will to protect the defendant is constant in time, the maxim has been reaffirmed and extended regularly through centuries.As there are really few texts about the duration of denfences, the maxim also leeds to study the importance of secondary sources of law, even after the XIXth century codification work.

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