Conversion of Testamentary Dispositions in Classical Roman Law

According to Plutarch, Cato the Elder regretted only three things in life; one of them was to live for an entire day without a will. This anecdote shows even if it may be a little exaggerated the Roman horror of intestacy. The enormous quantity of sources dealing with wills also proves the importance of the subject (Cf. also Rüfner in Reid/de Waal/ Zimmermann, Comparative Succession Law I, 2011, 2). A Roman testator not only distributes his property, but also determines an heir as his successor in the sense of continuing the family with its private sanctuaries. The will is also the place to reward friends and relatives for their loyalty, which is especially significant for the Roman society that is based on unpaid friendship services. In order to protect these important last wills, many complicated rules were stipulated; this leads to the problem that it was quite difficult to meet all the requirements to assure the validity of a will, which was of such a great interest for every Roman citizen. Additionally, in Roman Law a partially valid will and the parallel application of the rules for intestacy is not possible, due to the rule nemo pro parte testatus pro parte intestatus descedere potest. As a result, jurists tried to uphold defective dispositions whenever possible, which is expressed with the keyword favor testamenti. In this context arises the question of a possible Conversion of Testamentary Dispositions in Classical Roman Law. In some cases, it is possible to maintain an invalid disposition, although not in the intended form: for example, an heir must be appointed on a quota. In some cases, the testator did not mention a quota but certain things; from a formal perspective, this is an invalid testamentary disposition, and if the heredis institutio is invalid, all the other dispositions are invalid as well. This unsatisfactory outcome was circumvented with different strategies that can be called conversion. A similar problem arises if the rules for a certain type of legacy are violated: there are different types of legacies in Roman Law with different legal effects and different requirements. If the intended form is not valid but another one would be, in some cases a conversion is possible. The question is, in which cases the conversion is possible and in which it is not and what the reasons are for the decision. The topic is still a research desideratum and it is precisely this gap that the research project plans to close. In order to do that, the writings of jurists from classical antiquity are examined as well as documents that originate from antique legal practice, and literary sources.

60-70% of all legal disputes of the Romans are said to have concerned the law of succession (Kelly). In the practice of the document writers it was the will, which brought the first specialist group into being (Amelotti). In the institutions of Gaius, 279 fragments deal with the law of succession, while the law of contract is discussed in only 93 fragments (Jakab). As astonishing as this central role of the will may be from today`s point of view, it is not surprising in view of this data that the Roman testamentary law was the starting point of numerous legal developments which, as a result of centuries of tradition, still have an impact on today`s European private law. One of these developments concerns the phenomenon of "conversion" ("reinterpretation"), which also has its roots in testamentary law. In the project, "standard" Roman testamentary clauses were examined for errors that could typically be made or are documented, and their consequences: Did their unsuitable wording entail the invalidity of the entire will? Did it result in the invalidity of only the clause in question? Or was it remedied by legal artifice, so that legal action could be taken from it even though it did not comply with the formal legal requirements? What were the conditions for proceeding in the latter manner? Two approaches were combined: On the one hand, the few "original wills" that have survived from classical times were examined in terms of their structure and certain regularities in their drafting were identified. On the other hand, the investigation of the issues discussed in the juristic writings was then structured according to this and set in relation to the surviving documents from the practice. In this way, misinterpretations of the previous doctrine were revealed and connections were made visible which had previously been in the dark. Despite the "strictness" that prevailed when it came to assessing whether an effective testamentary disposition of one kind or another actually existed effectively under ius civile, a more or less far-reaching pragmatism could also be observed. The "conservatism" attributed to the Roman jurists is just as true as their attested tendency toward practical solutions: They did not presume to "abolish" the ius civile; too great was the respect for the traditional, the law according to which the "fathers" had already lived, too great perhaps also the pride in the cultural heritage, to which the law indisputably belonged. Nevertheless, they reacted to the needs of practice, which happened primarily by making the known legal institutions usable in a different way or by creating new ones, which were fitted into the existing structure, supplemented it and thus indirectly also changed it.