Quaedam Meditationes Caledoniae: The Property/Succession Borderland

Abstract

To speak of a property/succession borderland is to presuppose the existence of such a borderland, to presuppose that there are two territories, property law and succession law, and that they are adjacent. That there are two distinct territories is indeed the dominant modern conception. But one does not see that with clarity either in Roman law or in modern legal systems before the 19 century. The Institutional system was based on the threefold division of the Institutiones of Justinian: personae, res et actiones. Here succession law was part of res, so that property and succession lived under the same roof. Having said that, within the Institutiones succession law formed a distinct subsection of res. Early modern codes tended to follow this albeit sometimes with modifications. In the French civil code, Book II is about property law (it is headed Des biens et des différentes modifications de la propriété). Succession belongs to Book III. Though this is headed Des différentes manières dont on acquiert la propriété it is not really about property law, so a property/succession distinction does exist. But Book III covers not only succession but also the law of obligations, so that succession law lacks a complete identity, and indeed has less identity than in Roman law because the treatment of succession within Book III is broken up. Title I is Des successions, but this does not cover all succession. Title II is Des libéralités, and this covers donations inter vivos plus the remainder of succession law. French law students study modules called successions et libéralités, and books are published with that