Natura przywilejów osobowych i rzeczowych (KAN. 78 §§ 1-3 KPK)

Author in of the presented article focused his attention on the nature of personal and real privileges. As the study shows, the legislator took a stance on the issue of the nature of privileges in can. 78 §§ 1-3 CIC. The legal definition of privilege codified in can. 76 1 CIC contains a presumption allowing for the opposite evidence. This means that the permanence of a decision of this type is of a conditional nature. In other words, it is not an essential element of this institution. Can. 78 §§ 2-3 CIC, on the other hand, codifies the dispositions concerning the cessation of two principle categories of privileges, i. e. personal and real privileges. The cessation of both types of privileges is of a natural character. A personal privilege granted to an individual is extinguished with the person’s death and is not inherited by the heirs whereas a privilege concerning a legal personality ceases when the conditions codified in can. 120 § 1 CIC are met. Finally, a real privilege becomes extinguished through the complete destruction of be thing or place. Still, in the case of a local privilege, the legislator bases on legal fiction allowing for the revival of a privilege if the destroyed place is restored within fifty years. In conclusion, the author points out that prescriptive arrangements concerning the nature of personal and real privileges codified in can. 78 § 1-3 CIC result from positive law. The legislator establishing them bases on the mechanism of legal fiction.