György Képes

Evolution of the Modern Private Law in Hungary

1848 is a turning point in Hungary in all senses of legal development. It is not only the em-
blematic year of beginning of the constitutional monarchy based on separation of powers,
popular sovereignty, governmental responsibility and civil liberties, but in general, 1848 can
be considered as the start year of modern Hungary.
The most important characteristic of the spring of 1848 is modernisation. As the con-
clusion of the Reform Era marked with sessions of the old Hungarian diet full of new spirit in
the 1830’s and 40’s (the “reform diets”),1 a series of laws was adopted by the parliament in
the second half of March 1848, right after the revolutionary demonstrations in Vienna on 13
March, and in Budapest on 15 March 1848. The laws were sanctioned (or, as we say in the
Hungarian public law, sanctified) by Ferdinand I of Austria, King of Hungary as Ferdinand V
(1835–1848), on 11 April 1848. That is why we call this legislation the April Laws.
The April Laws can be divided into three groups, the first two of which, i.e. the laws
establishing the new, “recognizably parliamentary form of government” of Hungary2 (Acts
III–V of 1848), and the ones declaring the fundamental liberties of the Hungarian citizens
(such as the famous Act XVIII of 1848 on the freedom of the press and on the abolition of
censorship, by the way, demand number one of the Hungarian revolutionary movement of
1848), together form the new constitution of the Kingdom of Hungary without having been
incorporated in a single constitutional charter as it had been the case in other contemporary
monarchies like France (e.g. 1791, 1814, 1830), Norway (1814) or the one obviously serving
as the model for the April Laws, the 1831 Constitution of Belgium.
The third group of the April Laws is about the elimination of the remains of the feudal
(or rather, estate based) social and legal institutions. This third group of laws include two,
rather declaratory acts, Act IX of 1848 on the abolition of the seigneurial obligations, i.e. the
services of the peasants towards their landlords,3 and Act XV of 1848 on the abolition of
avicitas (or, more accurately saying, aviticitas), the “traditional system of noble landhold-
ing”,4 a very restrictive institution of the medieval Hungarian law. This latter act suspended
and prohibited all legal disputes based on avicitas, and at the same time it obliged the gov-
ernment to prepare a civil code and to submit the draft “to the next parliament”.5

1
Rady, Martyn, Customary Law in Hungary: Courts, Texts, and the Tripartitum. Oxford: Oxford University
Press, 2015, 219.
2
Rady, M., Customary Law in Hungary, 221.
3
Béli, Gábor, Magyar jogtörténet. A tradicionális jog. 2nd ed. Budapest–Pécs: Dialóg Campus Kiadó, 2009, 307.
4
Rady, M., Customary Law in Hungary, 222.
5
See Section 1 of Act XV of 1848. Available in Hungarian: http://1000ev.hu/index.php?a=3&param=5283 [Ac-
cessed 7 July 2016]
 2

The new Hungarian ministerium, the first accountable government in the Hungarian
constitutional history – led by Count Lajos Batthyány (1807–1849), appointed by the King on
17 March 1848 to the position of the first Hungarian Prime Minister – had no possibility to
deal with the matter of the civil code. The new minister of justice, Ferenc Deák (1803–1876)
mandated the excellent jurist, László Szalay (1813–1864) to prepare the draft,6 but there was
no time to complete the work.
As Mária Homoki-Nagy, professor of legal history at Szeged University established,
“1848–49 were not suitable for peaceful and calm legislation”, but she also emphasises that in
1848, when the most important feudal restriction of property, the avicitas had been abrogated
(Act XV), and the serfs had been finally liberated (Act IX), actually the fundaments of the
entire old Hungarian private law had been abolished.7

Characteristics and restrictive institutions of the traditional Hungarian private

law

The traditional Hungarian private law dates back to the 13–14th centuries (Golden Bull of
1222, laws of Louis the Great of 1351), and as we have seen above, it lasted until the 19th cen-
tury.
The law of persons of that era can be typified with one word: inequality. It means that,
until 1848, some factors of personal status, such as legitimacy (i.e. if someone was born in a
valid marriage or not), religion (if someone followed the state religion, or later the so-called
religiones receptae, “established religions”), and first of all the social status (if someone be-
longs to any of the social estates, and primarily to the una eademque nobilitas, the “one and
equal nobility” of Hungary) determined the extent of the legal capacity of the given person. It
does not mean that a peasant (a serf) could not have property, but it actually means that his
position in all areas of law, in private law relationships as well as before criminal authorities,
was far from identical to that of a nobleman. This inequality has been abolished by the Hun-
garian diet by the adoption of Act IX of 1848.
The property law also had a similar, restrictive characteristic, and this is, ironically,
the lack of property. There was no property in the modern sense in the traditional Hungarian
private law, or, more precisely, property (proprietas) as an exclusive right on goods existed
only on moveable assets (res mobiles) and on “acquired goods” (bona acquisita). In the case
of the land and some other valuable goods (qualifying as res immobiles under the old Hungar-
ian private law), some traditional institutions restricted the owner’s rights, first of all the right

6
Horváth, Attila, A magyar magánjog történetének alapjai. Budapest: Gondolat Kiadó, 2006, 54.
7
Homoki-Nagy, Mária, A magyar magánjog kodifikációja a 19. században, Jogtörténeti Szemle, 1 (2004), pp. 4–
7., 5.; see also: Kajtár, István, A 19. századi modern magyar állam- és jogrendszer alapjai. Budapest–Pécs: Di-
alóg Campus Kiadó, 2003, 219.
 3

of disposition (jus disponendi), which is indeed the most significant right of the owner in the
modern interpretation of private law.8
The most important restrictive institution was the already mentioned avicitas. In order
to understand the significance of Act XV of 1848 in the formation of the modern Hungarian
private law, we have to understand the meaning of this institution. In the medieval Hungary,
very probably since the Hungarian conquest of the Carpathian Basin in the 890’s, there had
been a tradition to make a distinction between acquisitum (goods newly acquired) and
aviticum (goods inherited from the ancestors).
If something had been inherited from an ancestor according to the rules of intestate
succession (“from father to son”), it became an aviticum, which meant that the given asset
became the property of the family, in broader sense of the clan (gens).9 The difference be-
tween acquisitum and aviticum is that, while the first could be freely sold and purchased, and
the owner could freely dispose on it in his will as well, the latter had to be preserved as the
property of the family. In the inheritance law, it meant that the bona avitica (literal translation
of the Hungarian term: “ancient goods”) were always inherited according to the order of intes-
tate succession, i.e. the testamentary succession was excluded. In the case of extinction of the
family, the property reverted to the Holy Crown, i.e. to the treasury.10
It is even more interesting to examine the legal consequences of the avicitas in the
property law. Here, the protection of this institution actually created something like the re-
straint on alienation and encumbrance is in the modern civil law.11 If a nobleman intended to
alienate its property classifying as aviticum (which meant over time a small portion of the
ancient common property of the family), he had to offer it to the members of his family
(praemonitio),12 i.e. the consent of all family members had to be obtained. The lack of con-
sent of any, even unknown member of the family could lead to the consequence that years, or
even centuries after the act of alienation, this family member or his heirs had the right to
claim the property back.13 According to a contemporary paper written by the enlightened
writer and political thinker, György Bessenyei (1747–1811) in 1804, “There is no landed no-
bleman [in Hungary] who would not be tousled by ten or twenty litigations”.14
This restriction and the consequent risk that the new owner may lose the property
years, decades or even centuries later, made the bona avitica basically non-marketable. As
Count István Széchenyi (1791–1860) highlighted in his famous, programmatic work, Hitel

8
Horváth, A., A magyar magánjog, 266.
9
Horváth, A., A magyar magánjog, 266.; Santa-Pinter, J. J., The »Decretum unicum« of Louis the Great and his
Kassa (Koszyce) Privilegium, Ungarn-Jahrbuch. Zeitschrift für die Kunde Ungarns und verwandte Gebiete,
Band 12 (1982–1983), pp. 87–108., 90.
10
Homoki-Nagy, Mária, A magyar magánjog történetének vázlata 1848-ig. Szeged: JATEPress, 2001, 79–80.
11
Béli, G., Magyar jogtörténet, 71.
12
Horváth, A., A magyar magánjog, 267.
13
Illés, József, Bevezetés a magyar jog történetébe. A források története. Budapest: Rényi Károly Könyvkiadó-
vállalata, 1910, 208–209.
14
Bessenyei, György, Magyarországnak törvényes állása, In Bessenyei György válogatott művei. Budapest:
Szépirodalmi Könyvkiadó, 1987, 691–816., cited by Horváth, A., A magyar magánjog, 267.
 4

(Credit) published in 1830,15 the avicitas, the “conservation of the families” is an obstacle to
the development of the country, primarily because no one would accept a good as a credit
guarantee, as a cover for the credit itself, if such good cannot be freely alienated.16 Count
Széchenyi was the first politician in Hungary who proposed a complete legal reform, and as
the part of it, a thorough modernisation of the Hungarian private law.17

The era of “individual liberalism”: the first half century of the modern Hungari-
an private law

The April Laws made clear that the traditional social structures and the old Hungarian private
law based on them cannot be maintained. The Hungarian revolution of 1848 and war of inde-
pendence of 1848/49 failed in August 1849, but the Austrian occupying forces (and the new
Austrian emperor, Francis Joseph himself) had no intention to reinstall the traditional feudal
institutions in Hungary. They opposed (and oppressed by military force) the idea of the inde-
pendent constitutional Kingdom of Hungary, but they did not oppose the social modernisation
of the country at all.
The era of the so-called Neo-Absolutism (1849–1861/1867) was characterised by a
very repressive political power but, paradoxically, at the same time by a quick modernisation
of the Hungarian law as well.18 The abolition of legal inequality of citizens, and the abolition
of feudal restrictions of property and obstacles of free commerce coincided with the interests
of the Austrian political and business elite: the customs border had already been eliminated
with effect from 1 October 1850.19
The Emperor’s letter patent of 29 November 1852 (“Aviticitäts-Patent”) introduced
the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) of 1811 in Hungary,
with effect from 1 May 1853;20 the serfdom had been completely abolished by the letter pa-
tent of 2 March 1853 (Urbarial Patent);21 and finally, the land registry had been introduced
with effect from 15 December 1855.22 There is no doubt that all these Austrian laws entered
unconstitutionally in force in Hungary, but they still helped to turn the country in a new direc-
tion: towards the modern era. Of course, the receipt of the unconstitutionally enforced Austri-

15
Available in Hungarian: http://mek.oszk.hu/06100/06132/html/ [Accessed 7 July 2016]
16
Rady, M., Customary Law in Hungary, 220.
17
Horváth, A., A magyar magánjog, 46.
18
Rady, M., Customary Law in Hungary, 222.
19
Horváth, A., A magyar magánjog, 57.
20
Béli, G., Magyar jogtörténet, 310.; Vékás, Lajos, The Codification of Private Law in Hungary in Historical
Perspective, In Annales Universitatis Scientiarium Budapestinensis de Rolando Eötvös Nominatae. Sectio Jurid-
ica, Tomus LI. Budapest: ELTE, 2010, pp. 51–63., 52. Available: http://www.ajk.elte.hu/file/annales_2010
_04_Vekas.pdf [Accessed 7 July 2016]
21
Rady, M., Customary Law in Hungary, 222.
22
Horváth, A., A magyar magánjog, 58., 229.; Vékás, L., The Codification of Private Law, 54.; in more detail
see: Béli, G., Magyar jogtörténet, 308–312.
 5

an law was first rather negative, but the Hungarian political elite, then already led by Ferenc
Deák, the father of the Austro-Hungarian Settlement of 1867 on the Hungarian side, felt the
positive effects thereof as well.
In October 1860, Francis Joseph issued the October Diploma, promising to restore the
constitutional integrity of Hungary within the Empire.23 At the same time, on 2 October 1860,
he informed his Court Chancellor of Hungary, Baron Miklós Vay (1802–1894), that the Hun-
garian courts would be soon restored, and a legal conference would have to be convoked in
order to make proposals regarding the details how the Hungarian jurisdiction should be rein-
stalled, and along what principles the restored courts should decide the new cases.24 It was
obvious, that the conflict between the traditional Hungarian law and the recently introduced
legal institutions had to be resolved somehow.
The conference, led by the Lord Chief Justice25 Count György Apponyi (1808–1899),
and therefore usually referred to as the “Conference of the Lord Chief Justice” or “High Judge
Conference”,26 began its work on 22 January 1861. The attendants of the meeting (judges,
legal scholars and other respectable persons invited by Count Apponyi) established on one
hand that the norms of the Austrian law could not automatically apply in Hungary as sources
of law, but on the other hand they also declared that “a restitutio in integrum of Hungary’s
laws was not possible”.27 On the last (18th) session held on 4 March 1861, the conference pro-
posed to the Hungarian courts to accept the letter patent of 2 March 1853 as valid, and to take
into consideration in their decisions that the avicitas had been abolished.
Based on the recommendations of the congress, a special committee drafted a docu-
ment titled Provisional Judicial Regulations (Ideiglenes Törvénykezési Szabályok, ITSz),28
which had been actually approved by the parliament (on 22 June 1861 by the majority of the
house of representatives, and on 1 July 1861 by the upper house unanimously), but had never
been enacted as a law, and was aimed to be kept in force as an auxiliary instrument for the
courts until the adoption of the Hungarian civil code.29 So it happened: as a customary law it
remained effective until 1 May 1960, the date of entering into force of the first Hungarian
civil code (Act IX of 1959).30

23
Rady, M., Customary Law in Hungary, 224.
24
Horváth, A., A magyar magánjog, 62–63.
25
The second highest offices of the realm in the medieval Hungary (after the Palatine), re-established in No-
vember 1860 as the highest Hungarian office at that time, in lack of Palatine (nádor) and/or Prime Minister
(miniszterelnök, a function established in 1848).
26
The Hungarian supreme court (Curia) officially calls it “Conference of the Lord High Justice”, see:
http://www.lb.hu/en/history-and-judicial-reform [Accessed 7 July 2016]; while in the English literature it is
called “High Judge Conference”, see: Rady, M., Customary Law in Hungary, 224.
27
Homoki-Nagy, M., A magyar magánjog kodifikációja, 6.; Rady, M., Customary Law in Hungary, 225.
28
Rady, M., Customary Law in Hungary, 228.
29
Béli, G., Magyar jogtörténet, 314.; Horváth, A., A magyar magánjog, 65.; Mezey, Barna, Horvát Boldizsár az
Országbírói Értekezleten, Jogtörténeti Szemle, 3 (2005), pp. 31–38., 38.; Rady, M., Customary Law in Hungary,
228–229.
30
Horváth, A., A magyar magánjog, 65.; Rady, M., Customary Law in Hungary, 229.;Vékás, Lajos, Magánjogi
kodifikáció kultúrtörténeti tükörben, Magyar Tudomány, 1 (2014), pp. 80–89., 87.
 6

The Provisional Judicial Regulations consisted of no less than 311 sections, many of
them dealing with several aspects of private law (and commercial law). The document practi-
cally saved the idea of the free property, preserving in its sections 20–21 (Book I) all relevant
norms of the Austrian Civil Code concerning ownership (Sections 353–379 of ABGB), and
this made the land marketable. The rules regarding mortgage and transfer of ownership of real
properties were also based on Austrian law. According to the modern principle, all encum-
brances and changes in the ownership had to be inscribed in the land registry. 31 With Martyn
Rady’s words “the ITSz provided a gateway through which further provisions of the [Austri-
an] Code might be deemed applicable to Hungary”.32
The April Laws of 1848, the introduction of the Austrian private law in 1853, and the
Provisional Judicial Regulations of 1861 altogether helped to form the modern, liberal system
of private law in Hungary, without a single uniform civil code, indeed, in many aspects still
based on customary law, the jurisdiction and legal interpretation of the courts. Even after the
Austro-Hungarian Settlement of 1867, when finally a long peaceful and prosperous period
dawned in the Hungarian history, all codification attempts remained unsuccessful,33 except
for the area of commercial law, where “it was decided that a separate code was necessary for
responding adequately to the needs of commercial life”.34
The Commercial Code adopted by the parliament in 1875 (Act XXXVII of 1875) con-
tained the norms relating to commercial transactions, thus influencing the (still uncodified)
law of contracts as well indirectly, and also regulated the establishment and operation of un-
dertakings (“merchants”),35 such as the different forms of business companies, the sole trad-
ers, and the cooperatives. The Commercial Code of 1875 drafted by István Apáthy (1829–
1889) relied strongly on the German commercial law (Allgemeines Deutsches Handels-
gesetzbuch, 1861),36 and eight sections regulating commercial vouchers (Sections 291–298)
are still in force.37

31
Béli, G., Magyar jogtörténet, 314–315.; Harmathy, Attila, On Legal Culture of Hungary. Reports to the
XVIIIth International Congress of Comparative Law. Washington D.C., 2010, 14. Available: https://jak.ppke.hu/
uploads/articles/11887/file/Angol%20anyag %201.-%20Szil%C3%A1gyi.doc [Accessed 7 July 2016].; Horváth,
A., A magyar magánjog, 63.; Kajtár, I., A 19. századi modern, 220.
32
Rady, M., Customary Law in Hungary, 228.
33
In English see: Hamza, Gábor, Roman law and the Development of Hungarian Private Law before the Prom-
ulgation of the Civil Code of 1959, Fundamina – A Journal of Legal History, 1 (2010), pp. 383–393., 390–391.
and Rady, M., Customary Law in Hungary, 233–234.; in greater detail in Hungarian: Homoki-Nagy, M., A mag-
yar magánjog kodifikációja, 4–7. and Horváth, A., A magyar magánjog, 105–111.
34
Kisfaludi, András, The Influence of Harmonisation of Private Law on the Development of the Civil Law in
Hungary, Juridica International, 14 (2008), pp. 130–136., 131.
35
Ibid., 131.
36
Horváth, A., A magyar magánjog, 62–63.; Kajtár, I., A 19. századi modern, 221.; Rady, M., Customary Law in
Hungary, 232.
37
As of 7 July 2016. See: http://njt.hu/cgi_bin/njt_doc.cgi?docid=6.7 [Accessed 7 July 2016]
 7

Hungarian legal historians used to refer to the first era of the modern (but uncodified)
Hungarian private law, lasting from 1848 to the crisis years after the first world war, as the
epoch of “individual liberalism”.38 The reason behind this name is that this was in fact the age
of liberties in the Hungarian civil law. The law of persons was based on legal equality, or as
the political thinkers of the 1848 revolution called it, the equality before the law (törvény
előtti egyenlőség). It means that all restrictions (and the different categories) of legal capacity
had been abolished, there were no more persons having only a partial legal capacity, and on
the other hand, there were no more privileges raising one person over the other.39
The freedom of property, originating in the modern rules of ABGB, became the basic
principle of the new, liberal property law in Hungary. The owners had been granted the right
not just to possess (jus possidendi)and to use and make benefit of their property (jus utendi-
fruendi), but also to dispose on it freely (jus disponendi). Thanks to the introduction of the
land registry in 1855, the lands in the country (and houses in the cities) could be freely sold
and safely purchased, and they could also serve as credit guarantee. Should the debtor not
have paid off his debts, the creditor could obtain satisfaction from the purchase price. The
freedom of disposition changed the rules of the inheritance law as well: after the abolition of
avicitas, any person could make a will concerning his entire personal property.40
In the uncodified and quickly developing area of the law of contracts, freedom of con-
tract started to prevail. It meant that the parties could decide at their own discretion whether
(and with whom) they wanted to enter into a contractual relationship, and which type of con-
tract with what terms and conditions they wanted to stipulate. In lack of civil code or any
written regulation, such freedom could easily lead to abuses to the detriment of private per-
sons (“consumers” in the terms of our time) and some smaller economic operators.
After the first world war, when the historic territory of the Kingdom of Hungary has
been occupied by external forces and economically, culturally and socially important regions
have been transferred by the peace conference to the neighbour countries, an economic and
financial crisis started in (the remaining territory of) Hungary. The crisis highlighted the con-
flicts of interests between larger and smaller participants of private law relationships, and
urged the courts to intervene in them on favour of the weaker parties. So has the glorious era
of individual liberalism (marked with the classical principle of private autonomy) ended, and
so has the new epoch, the age of state intervention41 begun.

38
See e.g. Horváth, Attila, A polgári magyar magánjog történeti alapjai, 1848–1945, In Mezey, Barna (ed.),
Magyar jogtörténet. 3rd ed. Budapest: Osiris Kiadó, 2004, pp. 128–165., 131.
39
Horváth, A., A magyar magánjog, 55., 191–192.
40
Horváth, A., A magyar magánjog, 341. As the only restricition, the fideicommissum (introduced in Hungary at
the end of the 17th century) had been maintained by the Conference of the Lord Chief Justice in 1861. See: Béli,
G., Magyar jogtörténet, 139–140., 322.
41
See e.g. Horváth, A., A polgári magyar magánjog, 135.