Il divieto di patti successori. Riflessioni in una prospettiva storico-comparatistica

This research focuses on the Italian ban of agreements as to succession from an historical-comparative perspective. After the recent entry into force of the Regulation 659/2012, an amendment of the applicable national rules appears necessary especially for countries such as Italy, whose laws do not allow succession agreements. For this purpose, in view of the harmonisation of the European private law – notwithstanding the general understanding that the ban of succession pacts may be traced back to the ancient Romans –, this research aims at pointing out that a clear stance against mortis causa attributions resulting from bilateral agreements cannot be found in the classical legal thought. Although no ‘succession agreement’ category had been theorized in Roman law, jurists’ writings could provide some guidelines (which Emilio Betti would define as ‘enlightening inspirational principle’) suggesting a jurists’ stance on the post mortem topic that could be analysed within the framework of the current legal dogma. Following these premises, after identifying and explaining (in the first chapter) the main features of the ‘succession agreement’ within the Italian legal system, in the second chapter, some texts of the Digest on emptio hereditatis futurae and on societas omnium bonorum have been studied, in order to demonstrate the existence of legal sources proving the use of contract to dispose of property not yet inherited. In the third chapter, the mandatum post mortem has been analysed, and the study of this legal act has shown that this consensual contract could be considered as a succession agreement. With reference to both the the texts I consulted in chapter two and in chapter three, it seems possible to demonstrate that the archetype of the admissibility of succession agreements could be found also in the ancient Roman law and therefore, perhaps, that the new European trend (allowing more widely the conclusion of future succession pacts) is not really contrary to our common judicial culture rooted in Roman law.