Open AccessAn Inheritance Contract: a Critical Look at the Legal Construction
Author(s) -
Н Е Сосипатрова
Publication year - 2021
Publication title -
lex russica/lex russica (russkij zakon)
Language(s) - English
Resource type - Journals
eISSN - 2686-7869
pISSN - 1729-5920
DOI - 10.17803/1729-5920.2021.180.11.030-038
Subject(s) - settlor , inheritance (genetic algorithm) , law , civil code , discretion , testamentary trust , political science , property (philosophy) , legal fiction , legal doctrine , law and economics , civil law (civil law) , relevance (law) , breach of contract , sociology , public law , epistemology , philosophy , damages , biochemistry , chemistry , gene
The legal structure of an inheritance contract introduced into the system of Russian civil law on June 1, 2019, caused an ambiguous evaluation in the doctrine of inheritance law. Analyzing various points of views of scholars and legal prescriptions, the author expresses her opinion on this legal structure highlighting in particular an imbalance in the legal status of the parties to the inheritance contract, expressed in the possibility of unilateral refusal to execute it by only one of the parties, in the absence of legal protection of the testator's counterparty when the latter alienates the property specified in the inheritance contract. This makes this legal structure practically non-binding for the testator and reduces its relevance. The author substantiates that the legal prohibition of concluding an inheritance contract through a representative applies only to the testator. The assumption is made that the reference to a third party acquiring the right of inheritance does not turn this agreement into a contract made in favor of the third party. The paper focuses on the controversial issue of the limits of the discretion of the testator and the essential conditions of the inheritance contract. The author differntiates the gaps in the law in the regulation of a number of issues related to the conclusion and execution of an inheritance contract, some wordings of Art. 1118 and 1140.1 of the Civil Code of the Russian Federation and suggests proposals that improve rules under consideration. The author comes to the conclusion that the legal structure of inheritance law raises many questions caused by faulty legal formulations and insufficient completeness of legal regulation, which can give rise not only to doctrinal discussions, but also to contradictory law enforcement practice.