LA HEREDITATIS VENDITIO. IL CONTRATTO DI COMPRAVENDITA DELL¿EREDITÀ IN DIRITTO ROMANO.

The research is aimed at reviewing the regulatory regime governing the sale of inheritance under Roman Law. The sale of inheritance (hereditatis venditio) is the contract by which one person, the venditor, makes over to someone else, the emptor, the assets he has acquired mortis causa, in return for payment. The economic purpose of the contract is to put the purchaser in the same position in which he would have found himself had he been the heir. According to the principles of Roman Law, however, an heir can’t hand over his status as such and therefore, in order to achieve the same practical result, he has to resort to selling the proceeds of the inheritance and to agreeing with the purchaser to be held harmless from any expenses or claims related to them. By doing so, the vendor keeps nonetheless his status as heir and is therefor liable toward any third party: he keeps the capacity to sue the debtors of the inheritance as well as the capacity to be sued by the creditors of the inheritance. Hence the contract provides that the vendor shall cede to the purchaser the rights of action against third parties with a mandatum actionis and that the purchaser shall undertake to defendere the vendor in case he were sued because of the inheritance. Owing to a legal rule forbidding the transfer of the capacity to be sued, in case the purchaser omitted to defendere the vendor in trial, on the one hand the latter could only rely on the former’s liability for breach of contract and would be left to cope with the outcome of said trial, on the other hand the plaintiff would be exposed to the risk of having to face a defendant who has already disposed of the proceeds of the inheritance and has no more actual interest in the res controversa. The dissertation is composed of five chapters. The first chapter deals with the recognition of the rules of law governing the contract (which are contained in Digest 18.4 and Codex 4.39) and delivers a brief review of relevant literature. The second chapter covers the topic of the object of the contract. Being a collective noun, hereditas refers to the whole bulk of assets and liabilities belonging to a deceased person. The peculiarity lying therein raises several questions regarding, above all, the criteria according to which an asset or a liability ought to be included in the purchased inheritance. The third chapter studies the rights and obligations of parties, both arising out of the contract and imposed by mandatory rules. For expository purpose, those obligations have been classified in two large groups: the first group comprises obligations aimed at guaranteeing that the purchaser would be entitled to the net economic outcome of the inheritance, while the second group encompasses the obligations intended for balancing out the fact that the vendor remains the only one who’s capable to sue and to be sued propter hereditatem. The fourth chapter examines further the issue of legitimatio ad causam as far as the so-called hereditarias actiones is concerned. The fifth chapter finally surveys the consequences of the fact that the purchaser lacks the capacity to be sued by the creditors of the inheritance, particularly in the event that the parties might agree upon the sale of inheritance with the sole intent of defrauding said creditors.