Quidquid ex testamento petunt scriptum heredem convenire debent : Initial Comments on the Inheritance Transactio in the Ius Commune and the Early Modern Period

The legal interest here lies in the procedural and substantive effects of an inheritance settlement (transactio). When a decision was to be made between a testamentary heir and legal heir with regard to a dubious will, a serious interpretative problem arose when a private agreement (the transactio in this case) that was reached after the tabulae had been opened was extended to third parties. This article does not claim to provide a solution to the complexities of creating a satisfactory set of rules to govern inheritance. Rather, in light of recent research studies, it seeks to evaluate the underlying ideology behind extending to third parties the effects of the freedom to dispose of property after death and the limit of that freedom. Creating inheritance rules involves conceptualizing family life. The law selects winners and losers on the basis of those political choices. The transfer of property mortis causa is undoubtedly an economic act. However, it is based not on market exchange but on relationship and affection. Inheritance touches both material and sentimental interests and the acquisition of a loved one’s property may have a deeper symbolic function for close relatives which impacts on the continuity of relationships, memory and even personal identity. The regulation of inheritance, therefore, involves a conceptual negotiation between the market principle of freedom and the non—market claims of family members. Thus, this article aims to verify whether or not the rights of any third parties who were not part of the transactio would be prejudiced, in accordance with a never—forgotten principle of jurisprudence: quidquid ex testamento petunt scriptum heredem convenire debent.