‘Prestito Vitalizio Ipotecario’ and ‘Mandatum Post Mortem’: two Examples of Valid Agreements as to Succession between the Present and the Past

The paper focuses on the post mortem mandate, an agreement used to protect some interests arising after the mandator’s death, both in Italian legal system and in Roman Law. Given that the latest doctrine has considered invalid a post mortem mandate where the nature of the mandatory’s tasks is economic, as it does not comply with art. 458 Cod. Civ., this article explores the issues suggesting that the recent introduction of the ‘reverse mortgage’ within the Italian legal system could be considered as a new step towards overcoming the prohibition of agreements as to succession. After analysing the current legislation, also within the framework of European private law, the research dwells on post mortem mandatum in Roman law, trying to show that such consensual contract could be considered as a succession agreement. After having demonstrated the difference between the mandatum post mortem (understood as a contract) and other testamentary dispositions defined as mandatum post mortem as well, a source showing the possible economic nature of the Roman mandatum post mortem is considered, to conclude that there were Roman law cases, like that of Gaio in D. 17.1.13, proving the existence of bilateral agreements intended to fulfil an economic function casually related to the mandator’s death.