Pongracz - Hungarian Property Law

Property Law of the Hungarian Kingdom Author: Denis Pongracz

No doubt that Hungarian Property law arose on the basis of continuity of a certain form of old law dating back to the times of the Great Moravian Empire. Just like administrative organization of part of Great Moravia in establishing Nitra´s principate, which later was transformed into Nitra comitate (Comitatus Nitriensis), the later legal law and order was linked to customary law of the newly established Hungarian kingdom. Common law – Antigua consuetodo Regni (common law verified by long application) was the main source of our private law. In the oldest times, approximately up to the year 1514 there existed basically no legal decrees that would have a form of a law which was due to the fact that since the period of the first Hungarian kings they themselves strictly observed customary law and it was only later that they started to issue legal decrees in various forms which were temporary and were usually effective during the reign of the ruler who issued them and their validity had to be extended by the successive ruler but the legal contents of the deed was recognized as common law. One of the reasons why decrees in the form of donations were in effect only temporary was also that they were often falsified as far back as those early times and some of these deeds were consciously or unconsciously misused in the modern period. Regional assembly generally became the place where acts issued by the ruler were declared. Since not all nobility were present in the assembly and most of them could not remember their contents, those acts were often disobeyed or ignorance of the act misused. At that time (12th – 14th centuries) many rulers issued their acts in the Royal Curia. It was only later, approximately in the 15th century that transcriptions of acts were sent to important or prominent magnates (nobility), prelates, royal comitates and towns. In late 15th century during the reign of Matthias Corvinus the situation started to change as a result of the beginning of printing. As the way of publishing the acts was limited both by time and the range of impact they had on population, it was the decisive factor in creating opinion about prevalence of common law above legitimate law. In such legal environment property was divided into three groups :

1. Crown property (bona proventus Sacrae Coronae Regiae) i.e. the property that belonged to the Crown and served both for representation and practical purposes. That property was in fact non-confiscatable, though in later period of decline it could be expropriated by nobility based on the decision of Hungarian Curia. 2. Fiscal property (bona fiscalia) , it was acquired by the king based on expropriation due to disobedience, death, gaining in war etc. The king could dispose of that property for the purpose of donation. To a certain extent the property could be also used by the palatine. 3. The camerlengo property (bona cameralia): this was used to take charge of money matters. 4. Ruler’s patrimonial property (bona patrimonialia): it was king’s private property. 5. Nobility’s property (bona et iura possesionaria, bona vel iura nobilitaria) which was gained as a free property by originally free persons (personas libertas).

Free land is the basic property in feudalism is divided into three groups : 1. Ownership of land by original, autochtonic population free population before the Kingdom of Hungary was established 2. Land occupied by arriving tribes, such as Magyars , also known as the Kipchaks, Pechenehs, Lehels and other nations, was called descentual. 3. Donation land, which was ownership after donation of the ruler, sometimes also by the palatine. Donations from time of Saint Stephen were the most respected, in contrast to that donations dating back to reign of Ladislav Kumansky were considered as untrustworthy. If the property was granted according to eternal law ( ius perpetuum) it had to be ensured with a deed with a trustworthy seal. Each donation dating back to Arpad´s time was relatively vague, many times even though twenty addresses were listed there the donated property itself was recorded very unclearly (e.g. sort of a forest, near meadow etc.) It happened very often that the ruler did not confirm donations or exchanged land for other property of his own free will or on request of the owner. These donations were aimed for soldiers “jobagions”.

In the later period, after the Golden Bull issued by King Andrew II in 1222, when a very strong class of magnates, royal power weakened. The king Belo IV especially supported formation of lower class nobility. At that time the legal term nobility property came into being. 1. Manorial estate (dominium) was divided into main property (caput) and appurtenance (pertinentiae). The main property was usually the oldest and had the highest value, thus these were castles, chateaus, land pertaining to them. Appurtenance was usually tangible property and included also animals, carts, work tools as well as villeins. 2. Nobility curia (curia nobilitaris) was an independent, usually nobility residence with appurtenance, exempt from paying common taxes. Very often the owner of nobility curia became a temporary or hereditary nobleman based on its purchase. It is essential to mention that in towns there also nobility curias, which had the right not to pay any, taxes apart from insurrection taxes and administration of nobility country. That fact often caused arguments between nobility and towns. Burgher’s property appeared first in royal towns. This property (land) was acquired by residents into timely limited possession or inherited based on its purchase. Later those parts of town acquired by burghers became items of sale. It did not concern municipal, exactly specified property such as municipal meadows, fields, vineyards etc. Similarly it was in case of lesser sovereign rights such as draught, distillery etc. Landowners´ towns acquired property either by purchase or leaving the landowner rights to the town. That happened quite rarely. As an example we could mention the small town Trstena, nobility and reeves from Trstensky family agreed on mutual administration of the town when the Trstensky family gave up their rights. Villein property was also nobility property, which was leased to them by nobility either temporarily, or permanently on condition they fulfilled their villein obligations, such as e.g. hoeing of landlord’s vineyard, hay for the nobleman, breeding of domestic cattle etc. The so called eternal villeins were divided into the so called inquilinus who had their own houses but did now owner the land on which the house was built, and inquilinus who did not have even their own house . This type of property existed up to the year 1848 as the landlord property when villeinage was abolished.

In connection with villeins it is necessary to mention that there existed the so called villeins of “free trade”, they usually had own property that they could sell or leave on condition they ransomed from their landowner’s villeinage. Quite a

lot of villeins used that chance on fundus (property) of nobility who had become poor. Church property was of special character, being a complex of all property belonging to church property. This type of property could not be expropriated but it could not grow larger. The peculiarity of the Hungarian property law was the term masculine branch (bona masculini sexus) from which females and their descendants were exempt. That rule did not apply if both sexes were mentioned in the donation (utriusque sexus). Very often nobility property was forfeited to the crown after death of the last male descendant (per defectu seminis).

Verböczi and Tripartita though know the term girl´ one fourth according to which a daughter could inherit part of property usually paid in money. In case of villeins property sex was not taken into consideration. That property was legitimately transferred to the landowner after all members of the family died out which was leased further to another villein. In Hungarian property law religious issue was essential. In the oldest times it was related only to Jews and pagans. 1. Pagans were strictly prosecuted and deprived of all their rights under Saint Stephen. 3. Jews had in general the same position in the oldest period of Hungary as in the whole of central Europe because Jewish legislation was developed uniformly everywhere under influence of the Catholic church. In 1092 Ladislav I Saint enacted in his first code of laws, article 10 and chapter 10 that Jews were not allowed to contract marriage with Christians. Similarly it was forbidden for Christian slaves to serve Jewish owners and Jews could only trade in the bishop’s seat except Sunday. The most significant ruling of privileges, practically the first detailed one appeared during the reign of the king Koloman - Colomani regis Lex Iudeis regno commorantissimus. Based

on that privilege in contrast to the rest part of Europe their position was much more beneficial, Jews could even administer or profit from royal pension, authorities, property, could freely move and leave ghettos. Koloman allowed Jews to own real estates on the territory of the whole Hungary, but only in the bishop’s seat, it was on condition that they had to live there permanently. In the year 1251 Belo IV even allowed Jews to back up donation property under certain conditions . Palatine Miklos Palffy issued a privilege for Jews in Bratislava Outer Bailey in the years 1714 in which he allowed settlement of a certain number of Jewish families in the surroundings of Bratislava Castle with property rights and own judiciary . Palffy as the Hungarian palatine was competent to issue legally binding decisions. It was only in 1848 that equal property rights of Jews were adopted on the territory of Hungary along with abolishing of villeinship. From the period of reformation belonging to Protestantism was an important status feature. Protestantism was not tolerated at all, for example according to law of the year 1525 it deprived of legal persons as misbelievers who could be caught and sentenced to death as misbelievers and their property was confiscated .In the time of uprisings of Bocskay and Bethlen their right was slightly improved , however, they still had limited confessional and property rights. Property rights were significantly changed during the reign of Ferdinand III based on the Treaty of Linz in the year 1645 and Leopold I in the so called provisional arrangement in the year 1691 - Explanatio Leopoldiana. The Emperor Charles IV confirmed these freedoms in the year 1731 Resolutio Carolianana. However, it was only Joseph II who engaged in complete equality of protestants in Hungary - in the Tolerance Patent issued in the year 1781. The Tolerance Patent in its main principle cancelled restriction of legal and proprietory right based on religion. This Patent fully allowed protestant villeins as well to own real estates. As we can see, the development of Hungarian property law was full of diversity affected by troubled history of the state. It is a great pity that Slovak historiography has not properly taken up a study of it but I hope it will change in the future,

Sources : Tripartitum : prologus 1,2, Tripartitum: prologus §6-6, § 6-7 Tripartitum :prologus §11

Tripartitum: II./74 § 74-75

Wenczel G.: Az országos jog és partikularis jogok koszti viszony hazai jogrendszeunkeben, Budapest 1876. Marsina: Codex Diplomaticus et Epistolaris II., Bratislava 1979, Fejer : Codex Diplomaticus Arpadianus, Budapest 1889, Sv. Ladislav: II./§ 12-3 Mol Budapest,

Szentpétery: Monumenta Regesta Hungarica, Budapest 1890, Corpus Iuri Hungarici: Observationes processus causarum militaris curiae in facto honoris usu receptae. Acsády: A magyaroszághy szidoszák felszabadiszta iránti folymodas, Budapest 1087.