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5. Equity’s Connivance in the Evasion of Legal Formalities

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Chapter Summary

The use of formality as a condition of validity of a property transaction is known generally in legal systems. Formalities are also required for the disposition of property by will: a document in writing, signed by the testator or by some other person in his presence and by his direction, where the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time. The conservatism of the ius civile retained the list of res mancipi from an earlier age, and only modernised the formality of mancipatio to the extent of making the role of the libripens and the bronze symbolic. Equitable intervention is more significant, if the transaction would have changed the property rights of the parties. Each system has its own reasons for identifying the assets which are subject to the special formality rules.

Keywords: ius civile; legal formalities; property transaction



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