Some Reflections on the Classification of Goods under the Ethiopian Civil code

In different legal systems of the world, properties are classified into different categories such as personal and real, private and public, movable and immovable, absolute and qualified, corporeal and incorporeal, etc. The distinction between these types of property is significant for a variety of reasons. Firstly, classification ensures the proper application of the law. This is because the legal regime that governs goods depends on their nature and accordingly their legal treatment substantially varies. For instance, one's rights on movables are more attenuated than one's rights on immovable (or real property). The statutes of limitations or prescriptive periods are usually shorter for movable than immovable property. Besides, real property rights are usually enforceable for a much longer period of time and, in most jurisdictions, real estate and immovable are registered in government-sanctioned land registers. More essentially, the manner for transfer of the possession or ownership of things depends on their nature. For example, the possession of ordinary corporeal chattels (movable things) may be transferred upon delivery. On the contrary, possession of immovable things requires more additional formalities like registration. In short, classification of property has a paramount importance in facilitating legal regulation of property rights and economic transactions.


When we come to the Ethiopian legal system, the classification of things is not that much clear. The law simply employs the term “good” which is primarily meant to refer the subject matter of property rights in most civil law countries as a bench mark to classify properties. Accordingly, under 1126 of the civil code it is provided that all goods are either movable or immovable. As Ethiopia is largely a civil law country, the use of the terms movable and immovable like other continental systems seems appropriate. Hence, the law recognizes goods as movable or immovable. The term “all” in this provision seems to signify that any thing to be regarded as good or any thing which is regarded as good must have either movable or immovable nature. In other words, a thing to be considered as subject matter of property right, i.e. good, in our legal system, it must fall in either of the class of immovable or movable things as defined by the law itself. However, as it is clearly provided in the Amharic version of the same provision, those goods which may be immovable or movable shall have material existence. The otherwise understanding suggests that at least in principle things to be considered as subject matter of property they must be tangible (corporeal); that can be perceived in our senses particularly that can be touched. Therefore, in the first glance the law seems to exclude incorporeal (intangible) things from the realm of property. Nevertheless, it puts exceptional instances in the subsequent articles where incorporeal things become goods after being assimilated with corporeal chattels (movable goods). In short, even if the law by definition excludes incorporeal things from the scope of property, it has also devised a mechanism where they may be regarded as goods, that is, by assimilating them with movable chattels.


Once the law classified goods as movable or immovable it also suggested what the terms should connote. Thus, under art.1127 it stipulates that corporeal chattels are things which have a material existence and can move themselves or be moved by man with out losing their individual character. Therefore, goods to be corporeal (tangible) movable thing, they must, first, be able to move by themselves or by the force of human beings. Second, when they are moving by themselves or are moved by human power they must not loss their natural (individual) feature, that is, their displacement or movement shall not result in the destruction of the whole or part of them or change of their physical feature. For instance, a marble which is already used for building may be movable, i.e. may be detachable from the building by using force. However, since in most cases, this result in some sort of destruction up on it, the marble may not be included in corporeal chattels. One top of this the law doesn’t seem clear when it says   “…with out losing their individual character”. What is the extent of losing individual character? Is any insignificant change capable of changing the nature of the thing? In our example above, what if the marble in the process of technical detachment slight crack occurred, will it be movable or remains an immovable? In the opinion of the writer, the intention of the legislator doesn’t seem to include slight changes but only those changes that outwardly affected the individual character, meaning, in our instance, any crack shall change the nature of normal marble may be that turns it to particles. In other words, as long as the change is not substantial, the nature of the thing shall not be changed.


On the other hand, article 1130 tries to describe immovables saying that ‘lands and buildings shall be deemed to be immovables’. Thus, unlike other legal systems, our civil code instead of defining immovables in general terms, it gives which things shall be regarded as immovables and it provided land and building as things that are deemed immovable. However, what about other things such as bridges and dams which are by nature immovable in the ordinary meaning of the term? Is the listing exhaustive or illustrative? In this regard two arguments may be raised; firstly, since the law doesn’t clearly say that ‘only’ land and buildings shall be deemed immovables, other things which are immovable by nature [in the literal meaning of the term] shall also be regarded as immovable in law. By contrast, it may be argued that the listing is exhaustive and no other thing shall be deemed immovable except land and buildings. To supplement the second argument, it may be said that in as long as the law doesn’t put the extent of ‘building’ (what things are referred as building?), we shall interpret it broadly  so as to include dams, bridges, fences  and the like in addition to houses. The general jurisprudence is just making land and any permanent establishment on land which can’t be moved from one location to another with out causing destruction upon it as immovable. In line with this, in whatever way the law is interpreted, it must include things such as fences, dams, bridges and the like as immovable goods so far as they are physically attached with the land and in a manner where it is impossible to displace them with out affecting their individual character.


Another point that the reader must also note is that when the law is referring to immovables it is only corporeals which have material existence by virtue of Art. 1126. As to incorporeal immovables like servitude, and others which are inseparable from the corporeal immovable such as land from which they develop as a right, though the law recognizes them under various provisions like art.1359 ff, it excluded them under article 1130 while describing what things are deemed immovable. Therefore, it doesn’t mean that these incorporeal immovables aren’t immovables because art 1130 is simply the follow up of art 1126 which sticks in classifying goods which have material existence (corporeals) only by excluding those which don’t have physical existence.

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የቴምብር ቀረጥ የሚከፈልባቸውና የማይከፈልባቸው ግብይቶች

የሰው ልጅ ሐሳቡን ለሌላው መግለጽ መጀመሩ ሰዎች የጋራ ባሕርያትን ይዘው ወደ አዲስ ስልጣኔ፤ ወደ አዲስ ሕይወት እንዲወጣ አድርጎታል፡፡ ነገር ግን የዚህ ትስስር ድንበር የለሽ መሆን ጉዳት አለው በማለት፤ በተለያዩ ወቅቶች በተለያዩ ምክንያቶች መረጃን የመለዋወጡ ሂደት ገደብ እንዲኖረው ይደረጋል፡፡ ገደብ እንዲደረግ የሚያስገድዱት ዋነኛ ምክንያቶች ሦስቱን ዋነኛ ተቋማት መጠበቅ በሚል ሐሳብ ስር ይጠቃለል፡፡ 


እነዚህም ተቋማት ቤተሰብ፣ ቤተ እምነት እና ቤተ መንግሥት ናቸው፡፡ ቤተሰብን መጠበቅ ስንል ቤተሰብ የኅብረተሰብ መሠረት በመሆኑ ቤተሰብን እና ስርዓቱን የሚጎዱ ነገሮች (Obscene) በአደባባይ እንዳይኖሩ ማድረግ ማለታችን ነው፡፡ ቤተ እምነትን የሚያጎድፉ ነገሮችም (Blasphemous) እንዲሁ:: እንዲሁም በሦስተኝነት በሕግ የተዘረጋውን ስርዓት ለመጠበቅ ሲባል ሲሆን  ይሄም የግደባ ሂደት ሳንሱር (Censorship) ይባላል፡፡

 

የሕግ ማዕቀፉ እና ልምዱ ምን ይላል?

 

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መመሪያ የማውጣት ሥልጣን እና ሌሎች ጉዳዮች ከአስፈጻሚ አካላት ሥልጣንና ተግባር ለመወሰን ከወጣው አዋጅ ቁጥር 1263/2021 አንጻር ሲታይ

Note: This piece is an excerpt from an upcoming law review article titled “The Dark Future of Privacy in Ethiopia, And How to Stop It”

 Opening 

Ethiopia doesn't have laws that are specifically designed to deal with privacy and data protection issues except a few set of rules contained in various pieces of legislation that guarantee right to privacy rather in a very indirect fashion. The major sources of Ethiopian law dealing with issues of privacy and data protection can generally be grouped into four categories. These are: (1) the constitution, (2) international human rights instruments, (3) subsidiary laws and (4) case law. This piece briefly highlights these sources of Ethiopian privacy law. In so doing, it aims at providing a synopsis of operational privacy rules in Ethiopia.

 A.   Constitution

Ethiopia recognized right to privacy throughout its brief constitutional history, albeit to a different degree. The first written constitution of 1931 explicitly recognized the right of Ethiopian subjects not to be subjected to domiciliary searches and the right to confidentiality of correspondences except in cases provided by law. These rights were also incorporated with a more amplified tone in the revised constitution of 1955. The 1987 constitution of the Dergue also did guarantee Ethiopians the right to the inviolability of their persons and home along with secrecy of correspondences. The transitional government charter didn’t make a specific reference to privacy safeguards; but it did state that all rights provided for under the Universal Declaration of Human Rights (UDHR) shall be fully respected, and without any limitation whatsoever.

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Express repeal of delegated Legislation under Ethiopia

 

 ውክልናን የተመለከተው ሕግ በአገራችን በብዛት ስራ ላይ ከሚውሉ የሕግ ክፍሎች አንዱ ነው፡፡ የኢትዮጵያ የፍትህብሄር ሕግ ቁጥር 2199 ውክልናን እንደተረጐመው “ውክልና ማለት ተወካይ የተባለ አንድ ሰው ወካይ ለተባለው ሰው እንደራሴ ሆኖ አንድ ወይም ብዙ ህጋዊ ሥራዎች በወካዩ ሥም ለማከናወን ግዴታ የሚገባበት ውል ማለት ነው” ይላል፡፡ ከትርጉሙ ለመረዳት እንደምንችለው ውክልና የሚደረገው በወካይና በተወካይ መካከል ሲሆን በውክልናው የሚከናወኑት ስራዎች ህጋዊ መሆን አንዳለባቸው ነው፡፡ ይህ ማለት ደግሞ ህጋዊ ባልሆኑ ነገሮች ላይ የሚደረግ ውክልና ተቀባይነት የለውም  ማለት ነው፡፡ በሰፊው ስንመለከት ሁለት አይነት ውክልናዎችን እናገኛለን፡፡ እነሱም በፍተሃብሄር ሕግ ቁጥር 2189 ላይ የተቀመጠው ፍፁም የሆነ እንደራሴነት /disclosed or complete  agency/ እና በዚሁ ሕግ ቁጥር 2197 ላይ የተቀመጠው እንደራሴው በራሱ ስም ተግባሮችን የሚፈፅምባቸው የውክልና አይነት/undisclosed agency/ ናቸው:: ለዚህ ፅሁፍ አላማ ግን  የመጀመሪያው አይነት ውክልና ማለትም ፍፁም የሆነውን የእንደራሴነት አይነት እንመለከታለን፡፡ ይህም በፍትሃብሄር ህጉ ቁጥር 2199-2233 ድረስ ያሉትን የህጉን አንቀጾች የተመለከተ ይሆናል፡፡ በአጠቃላይ በዚህ ፅሁፍ ውስጥየውክልና አስፈላጊነት፣ የውክልና ምንጮች ፣ የውክልና አመሰራረት፣ የውክልና አይነቶች፣ የውክልና ግብ ፣ የተወካይና የወካይ ግዴታዎች፣ ውክልና የሚቋረጥበት ሁኔታ፣ ከውክልና መመሰረት ጀምሮ በውክልና አማካኝነት የሚከናወኑ ተግባሮችና ውጤቶቻቸው ድረስ ወካይ፣ ተወካይና የውክልና ማስረጃውን የሚሰጡ አካሎች ሊያደርጓቸው የሚገባቸው ጥንቃቄዎች የሚዳሰሱ ይሆናል፡፡

 

1.  ውክልና ለምን ያስፈልጋል?

አንድ ሰው አንዳንድ ተግባሮችን በራሱ ከማድረግ ይልቅ ሌላን ሰው በመወከል ተግባሮቹ እንዲከናወኑለት ይፈልጋል፡፡ ለዚህም ምክንያቱ የጊዜ ጥበት፣ የቦታ ርቀት ወይም የሁኔታዎች አለመመቻቸት፣ የእውቀት ወይም የክህሎት አለመኖርና የችሎታ ማነስ ዋናዋናዎቹ ሲሆኑ ሌሎችም በምክንያትነት ሊጠቀሱ ይችላሉ፡፡ 

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