D.V. Lorents

The Hereditary Contract: Roman and German Approaches

2020. No. 2. P. 105–129 [issue contents]
The article analyzes the nature and the risks of the Russian model of the hereditarycontract and explores the specifics of similar legal construction in countries of Westerndemocracy. The purpose of the research is to determine the reasonable and fair conditionsfor the conclusion, execution, termination and invalidation of the hereditary contractin Russia. The paper uses methodology of comparative law and structural-functionalanalysis, and the work deals with the essence and types of the last will in the contract ofinheritance. Since the advent of the family pacts on succession to business in countrieswith Roman law, there has been a changing the approach to hereditary contracts, whichas 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 inGermany systematizes guidelines when choosing a way of the last will. The testator musttake into account the mutuality of disposals, the marital status of the participants and thenature of lifetime or posthumous duties. In Russia, the hereditary contract is a prototypeof 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 isproposed. First, to differentiate disposals in the agreement of inheritance: on contractualand testamentary, interrelated and independent one. Second, to refrain from qualifyingthe performance of duties under the contract of inheritance as a classical sign of theobligations. Third, to limit the freedom of lifetime disposal of the inheritance to ensurea balance of interests of the parties to the hereditary contract by means the testator’sassurances of inaction and protection against its abuse. Fourthly, to guarantee of thehereditary contractual rights of a bona fide spouse in the event of marriage dissolutionor its invalidity.
For citation: Lorents D.V. (2020) The Hereditary Contract: Roman and German Approaches. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 105–129 (in Russian) DOI: 10.17323/2072-8166.2020.2.105.129
Citation: Lorents D. (2020) Nasledstvennyy dogovor: podkhod kontinental'nogo prava [The Hereditary Contract: Roman and German Approaches]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 105-129 (in Russian)
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