Literature on East European legal systems, and especially on Bulgarian law, in the English language is incredibly scarce. Bulgarian Private Law at Crossroads, which marks the beginning of Intersentia’s new ‘Private Law around the World’ series and which is forthcoming in August 2022, responds to this gap in knowledge by surveying the development of the Bulgarian law of obligations and property law from the end of the 19th century to the present day and by explaining the idiosyncrasies of the complex legal patchwork that emerges today in a comparative light. Just like Bulgaria itself, Bulgarian private law has always been at crossroads: it has diverse influences from both East European and West European jurisdictions, and it has seen many turning points because of the country’s tumultuous political past, including a communist regime.
Bulgarian law – a little-explored gem that can inform longstanding comparative debates
Bulgarian Private Law at Crossroads is the result of a long journey of discovering the particularities of Bulgarian private law while grappling with stereotypes and deception in literature, including political propaganda. I made my first encounter with comparative law in France where I earned my law degrees. All comparative law classes that I took purported to teach me the particularities of ‘leading’ (major, grand, etc.) jurisdictions – either they ignored the existence of other legal systems, implying that such non-leading jurisdictions were inferior, or, at best, they mentioned generalisations about them in passing. When my academic path eventually led me to comparative work involving Bulgarian law, the preconceived notions about East European jurisdictions that mainstream comparative thought had imposed on me clashed with the complex legal heritage that I confronted on the ground. Declarations that socialist law was dead or had ceased to exist and speculations that in reforming their laws post-1989 East European legal systems were looking for ‘more sophisticated legal input’ than the one that their domestic system could provide neither captured the Bulgarian experience adequately nor seemed to recognise the vibrancy of Bulgaria’s legal culture (see Konrad Zweigert and Hein Kötz, Introduction to Comparative Law, tr. Tony Weir, 3rd ed., Clarendon Press, Oxford 1998, p. v; Anthony Ogus, ‘The Contribution of Economic Analysis of Law to Legal Transplants’ in Jan Smits (ed), The Contribution of Mixed Systems to European Private Law, Intersentia, Cambridge 2001, p. 36).
Moreover, I faced an additional challenge – because of years of communist propaganda to which Bulgarian legal scholars had to bow, Bulgarian sources, especially those dedicated to legal history or context, could be propelling overt lies. For example, the Law on Obligations and Contracts (LOC) of 1950 was supposed to address the needs of a planned economy. To this day, leading Bulgarian scholars claim that it was an original Bulgarian creation. However, detailed research demonstrates that it is actually a creative compilation heavily inspired by the sections pertaining to the law of obligations of the Italian Civil Code of 1942. Many provisions were copied verbatim; others were cosmetically infused with communist ideology (for more development on this, please read my article ‘Shattering Myths’ (Studia Iuridica, 2019, Volume 82, pp. 309-327). With minor creative amendments, the LOC is still in force today.
In view of my experience, I wrote Chapter 1 of Bulgarian Private Law at Crossroads, which is dedicated to the merits of comparative dialogue with Bulgarian law, for the sceptics who believe that East European jurisdictions have nothing thought-provoking to offer comparative researchers. I argue that research into Bulgarian law may challenge the traditional taxonomies of comparative law, enrich the understanding of the common law–civil law divide, showcase the importance of context in legal development, and help address the difficulties of harmonisation of law in the European Union.
Origins of a vibrant patchwork
Chapter 2 surveys the scattered sources of Bulgarian private law and provides the historical background which is necessary to appreciate the fragmented Bulgarian legal landscape better. The development of Bulgarian private law can roughly be divided into three main periods – re-establishment and development of the Bulgarian State after the Liberation from the Ottoman Empire (1878 – 1944), communism (1944 – 1989), and democracy (1989 – present). Despite the radical changes of political regimes, all three periods are intrinsically linked.
First, comparative law has been the primary vehicle for advancing the law since Bulgaria’s Liberation. In the Ottoman Empire, Bulgarians did not have their own university, so they earned their degrees in countries such as France, Germany, Switzerland, Austria-Hungary, Russia, and Romania. Bulgarian jurists were no exception. By default, they engaged in comparative dialogue and were curious about the achievements of other legal systems. From early on, mixing and matching principles from different jurisdictions without major concern for coherence became the method of implementing legal change. The same phenomenon could be observed in the enactment of communist legislation and, subsequently, in the enactment of legislation compatible with the needs of a market economy and a democracy post-1989. For example, in amending the LOC of 1950 following the end of communism, Bulgarian legislators looked to Bulgarian legislation prior to communism as well as to the modern laws of obligations of diverse East and West European jurisdictions, which resulted in an even more vibrant patchwork that the one originally conceived in 1950.
Second, during all three periods of development, legislators opted for a piecemeal approach to adopting legislation. Following the Liberation, for instance, the first Bulgarian statesmen faced the mammoth task of building a state from scratch – the laws which were most urgently needed were enacted first. Rushed legislation, however, resulted in contradictions and gaps. That is why Bulgarian legislators developed diverse gap-filling mechanisms which have remained to this day. One of the most interesting features of the Bulgarian legal culture, for instance, is the binding decisions and decrees on interpretation by the Bulgarian Supreme Court of Cassation and the Bulgarian Supreme Administrative Court, which are handed down when court practice is severely divided on the interpretation of certain rules. Unlike the regular decisions which the supreme courts render, the decrees and decisions on interpretation do not concern concrete disputes, but questions of principle. These decisions and decrees, which Bulgarian scholars have deemed ‘the highest manifestation of the norm-making role of court practice’, evidence that Bulgarian judges have lawmaking powers and challenge the stereotypical role attributed to the continental judge. More importantly, gap-filling mechanisms such as this one may explain why the need for tidying up legislation by enacting a civil code was never truly felt in Bulgaria.
A close-up of the law of obligations and property law
Chapters 3, 4, and 5 are dedicated to specific areas of Bulgarian private law. Chapter 3 explains the complex fabric of Bulgarian contract law which emerges from legislation, scholarly writing and case law. While many principles will resonate with continental lawyers, they have a distinct flavour because of the complex heritage and historic transformations which the law of obligations has experienced in Bulgaria. Other rules of contract, by contrast, are not only rarely seen in other continental legal systems, but also can be deemed unique features of Bulgarian law because they have been moulded to such extent that their origin is not immediately recognisable. One example is provided by the principle of ‘good morals’ which should not be confused with the principle of the same name in other jurisdictions. The original LOC of 1950 referred to ‘the rules of socialist coexistence’ – a peculiar doctrine reflecting socialist morality which existed in the contract laws of only some socialist countries and which Bulgaria most likely borrowed from Poland. The main role of this doctrine was to moralise contract from a socialist perspective and to ensure the substantive fairness of a bargain – scholars from the socialist era argued that lack of equivalence of obligations, taking advantage of parties without experience, receiving payment not to exercise a right, receiving a tip, etc. violated the rules of socialist coexistence and voided the contract (see Vitali Tadjer, Civil Law of the People’s Republic of Bulgaria: General Part. Section 2, Nauka i izkustvo, Sofia 1973, pp. 252-255.) When amending the LOC, the 1990s legislator merely renamed ‘the rules of socialist coexistence’ as ‘good morals’. However, this cosmetic change did very little to alter the mindset of judges. Through my own research, I have discovered that in defining ‘good morals’ in a decision on interpretation from 2010, the Bulgarian Supreme Court of Cassation borrowed the definition of ‘the rules of socialist coexistence’ from a textbook on socialist civil law from the 1970s.
Chapter 4 surveys the hazy realms of tort and unjust enrichment. Exploring these disorderly areas of the Bulgarian law of obligations may serve as a case study showing how principles borrowed from abroad start living a new life in a different legal environment. The rules on tort and unjust enrichment in the LOC are a compilation which is heavily based on the relevant sections in the Italian Civil Code. However, since legislators copied rules creatively, they made omissions which necessitated numerous interventions by the Bulgarian Supreme Court, and subsequently, Bulgaria’s Supreme Court of Cassation in the form of decrees and decisions on interpretation to fill in gaps.
Chapter 5 examines the fascinating transformations of the right to property which required the re-invention of property law twice over the past 100 years. Undoubtedly, property law has been one of the most heavily politicised and ideologised branches of Bulgarian law. Its history reflects most clearly the severe damage which communism inflicted on Bulgarian society. Bulgaria went from one extreme to another – from recognising the inviolability of property before communism, through denying private property during communism, to attempting to bring back the values from before 1944 and to restore some normality, only to comprehend that this was extremely difficult. Namely, Bulgaria’s experience of restoring the property confiscated, nationalised and collectivised during communism to its rightful owners illustrates that good legislative intentions do not always lead to the most efficient and just outcomes, as indicated by a plethora of judgements by the European Court of Human Rights against Bulgaria.
Chapter 6 is dedicated to a discussion on whether a reform of Bulgarian private law, including the enactment of a civil code, is necessary, as well as an evaluation of Bulgarian private law’s preparedness to help tackle the challenges of the 21st century, such as the digitalisation of trade, environmental problems, the protection of human rights, and the consequences of the COVID-19 pandemic.
Following an afterword, in the last part of the book, I recommend and explain in context key literature pertinent to Bulgarian private law which may be of interest to those willing to broaden their understanding of Bulgarian law. The book contains an index which, in addition to referring readers to terms, directs those who are interested in concrete foreign influences on Bulgarian law (for instance, French, German, Italian, Polish, Soviet, Spanish, etc.) to the relevant pages.
Time for inclusivity of research?
Overall, the main goal of Bulgarian Private Law at Crossroads is to foster a better understanding of the current messy state of Bulgarian private law and an appreciation for its rich heritage. It is also a call for inclusivity of research. Bulgarian private law may not be everyone’s cup of tea, but it has its own distinctive voice. A jurisdiction at crossroads with so many scars from the past may be an insightful conversationalist with open-minded jurists.
Posted by Radosveta Vassileva (Middlesex).