Publication details
Vědění v občanském právu
| Title in English | Knowledge in the Civil Law |
|---|---|
| Authors | |
| Year of publication | 2022 |
| Type | Article in Periodical |
| Magazine / Source | Právník |
| MU Faculty or unit | |
| Citation | |
| Web | Open access časopisu |
| Keywords | positive knowledge; normative knowledge; proof of knowledge; forgetting; stored information |
| Description | Knowledge is an important juridical fact of civil law. In this article, I analyse some general issues associated with the role of knowledge in the civil law, especially in the Civil Code. Firstly, I introduce basic definition of the concept of knowledge; however, I also argue that the purpose of individual norms that tie legal consequences to knowledge (knowledge norms) can require different interpretation of this concept. Substantial differences in understanding the concept of knowledge usually cannot be inferred from differences in wording of various provisions of the Civil Code, as these dissimilarities result predominantly from attempted stylistic variation. Exception to this is the key dichotomy between positive (real) and normative (legally construed) knowledge which is consistently reflected in the text of the Civil Code. Because of introduction of a general rule in § 4 subs. 2 CC stating that knowledge should be assessed objectively, norms based on normative knowledge outnumber norms based on real knowledge in the Czech law. Nevertheless, the purpose of a particular knowledge norm can justify disapplication of § 4 subs. 2 CC and strict association of legal consequences with positive knowledge. The article further deals with specific evidential problems arising from the necessity to produce proof of positive knowledge, with relevance of loss of knowledge (forgetting) and with the proposition that knowledge of a certain fact could be equated with the possession of the source of information concerning the fact in question. |