Codification of Civil Law in Bosnia and Herzegovina

Povlakić, Meliha (2024) Codification of Civil Law in Bosnia and Herzegovina. In: Codification of Civil Law: Assessment, Reforms, Options. Legal Heritage . Central European Academic Publishing, pp. 291-337. ISBN 978-615-6474-72-8 ISBN (epub) 978-615-6474-73-5 ISBN (pdf) 978-615-6474-74-2

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Abstract

This chapter offers a comprehensive analysis of the historical development and current state of civil law codification in Bosnia and Herzegovina. It underscores the profound inf luence of Austrian law, particularly the Austrian Civil Code, on Bosnia and Herzegovina’s legal system from the Austro-Hungarian period through socialism and into the present. Despite socialist reforms after World War II that marginalized private law and emphasized state ownership, the principles of the ABGB persisted through the application of ‘legal rules’ from prior statutes. In the post-Yugoslav era, Bosnia and Herzegovina embarked on a transition process to reform its property system and codify civil law. However, progress has been hindered by incomplete property reforms and a complex constitutional structure that divides legislative competencies among entities and the Brčko District. This fragmentation impedes the adoption of a uniform civil code, resulting in civil law being codified in separate statutes without a general part. The chapter examines the current codification of contract and tort law, still largely governed by the Obligation Act of 1978. It also reviews recent reforms in property, succession, and family law, noting a return to foundational principles like the superficies solo cedit doctrine. Challenges remain, such as the lack of recognition for same-sex partnerships and issues concerning the deprivation of contractual capacity for adults. Concluding, the chapter emphasizes that the evolution of civil law in Bosnia and Herzegovina is characterized by legal transfer and reception. It questions the feasibility of autonomous legal development in a globalized world, highlighting the necessity for integrating international legal principles to foster a cohesive legal system.

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