One explanation for the poor development of the law of servitude in Sri Lanka is that it is based on Roman and Roman-Dutch law which are stagnant systems and hence contributes to the Sri Lankan law of servitude being a fossil law. The aim of this study is to examine whether the law of servitudes is truly a law which cannot be developed according to the needs of the society and, if so, whether the reason for this is that this area is mainly governed by the principles of Roman and Roman-Dutch law. This question was explored by researching the way this area of law has been developed in two other similar jurisdictions: Scotland and South Africa. The similarities between these systems are that these jurisdictions are mixed legal systems and that the law of property and especially the law of servitudes have been substantially influenced by and mainly governed by Roman and Roman-Dutch law principles of the law of servitudes adopted in the courts and supplemented by the legislature of these jurisdictions. Aspects such as: the importance of the requirement that there must be a dominant tenement for the creation of servitudes; the applicability of the principle of <i>numerus clausus</i> in recognising new kinds of servitudes in selected systems; and the acquisition of a servitude by prescription, were selected to narrow down and focus the research. My conclusion is that neither the area of law pertaining to servitudes nor the Roman and Roman-Dutch principles on servitudes are fossil areas or systems. The difference between the three systems consists basically in the way in which the principle and the sources are used by the law-makers in the specific country. They can either breathe life into a dead system or make a dead system alive by the way they handle issues in their judgements. Finally, suggestions were made of the areas which may be rejuvenated and proposals are provided for what needs to be done.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:531897 |
| Date | January 2010 |
| Creators | Perera, Anusha S. |
| Publisher | University of Aberdeen |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=158562 |
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