The Hereditary Contract: Roman and German Approaches

Abstract

The article analyzes the nature and the risks of the Russian model of the hereditary contract and explores the specifics of similar legal construction in countries of Western democracy. The purpose of the research is to determine the reasonable and fair conditions for the conclusion, execution, termination and invalidation of the hereditary contract in Russia. The paper uses methodology of comparative law and structural-functional analysis, and the work deals with the essence and types of the last will in the contract of inheritance. Since the advent of the family pacts on succession to business in countries with Roman law, there has been a changing the approach to hereditary contracts, which as invalid are generally recognized, and often even no reinterpretation of them into wills. The German model of the hereditary contract has a bipolar legal nature. The doctrine in Germany systematizes guidelines when choosing a way of the last will. The testator must take into account the mutuality of disposals, the marital status of the participants and the nature of lifetime or posthumous duties. In Russia, the hereditary contract is a prototype of a special «testament» with the possibility of damages in case of unilateral refusal. In the light of the German, Austrian, Swiss and Hungarian experience, the following reception is proposed. First, to differentiate disposals in the agreement of inheritance: on contractual and testamentary, interrelated and independent one. Second, to refrain from qualifying the performance of duties under the contract of inheritance as a classical sign of the obligations. Third, to limit the freedom of lifetime disposal of the inheritance to ensure a balance of interests of the parties to the hereditary contract by means the testator's assurances of inaction and protection against its abuse. Fourthly, to guarantee of the hereditary contractual rights of a bona fide spouse in the event of marriage dissolution or its invalidity.