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Contents of testament
JUDr. P. Salák jr. Ph.D.

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Dig. 28.5.60.6 , Celsus 16 Dig.
nSi ita scriptum fuerit: " titius ex parte tertia, maevius ex parte tertia heredes sunto: titius,
si intra tertias kalendas navis ex asia venerit, ex reliqua parte heres esto": videamus, ne titius
statim ex semisse heres sit: nam duo heredes instituti sunt, sed titius aut ex semisse aut ex
besse: ita sextans utique erit in pendenti et, si condicio exstiterit, ex besse heres erit, si non
exstiterit, ille sextans maevio adcrescet. sed si decesserit titius, antequam condicio exsistat,
deinde condicio exstiterit, tamen ille sextans non titii heredi, sed maevio adcrescet: nam cum
adhuc dubium esset, titio an maevio is sextans datus esset, titius decessit nec potest intellegi
datus ei qui tempore dandi in rerum natura non fuit.
n
nWhere the following is stated in a will: "Let Titius be my heir to a third part of my estate, and
Maevius be my heir to another third, and let Titius be my heir to the remaining third, if a ship
should arrive from Asia within three months." Let us see whether Titius will not immediately become
the heir to half of my estate, for two heirs have been appointed. Titius will either be an heir to
one-half of it, or to two-thirds, so that a sixth of the estate will be in abeyance, and if the
condition should be fulfilled, Titius will be the heir to two-thirds of the estate, but if it
should not be fulfilled, the sixth will accrue to Maevius. If, however, Titius should die before
the condition is fulfilled, and it should be fulfilled afterwards, the sixth of the estate which
remained in abeyance will not accrue to the heir of Titius, but to Maevius; for Titius died when it
was still doubtful as to whether he or Maevius would be entitled to the said sixth, since it could
not be understood to have been given to him who was no longer in existence at the time it should
have been allotted.
n

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Questions
nHow does the law understand these sentences: „…and let Titius be my heir to the remaining third,
if a ship should arrive from Asia within three months.“
n
nWhat would change if there were „within three Greek calendae“?
n
nWhat possibilities could happen in this case?
n
nWhy does Titius immediately inherit one half, although he was designated for one third only?
n
n What kind of principle follows from that?
n
nTitius died a week before the ship arrived (within established period), could his son claim a part
of the estate?
n
n

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CC 2012
nSection 1476
nInheriting takes place on the basis of an inheritance contract, testament or by means of a
statute. These reasons may also operate together.
n
nSection 1504
nThe share of an heir who does not inherit and has no substitute heir becomes vacant and shall
proportionately accede to the shares of the other designated heirs only if all heirs have been
designated to receive an equal share of the inheritance, or a share defined by a general expression
signifying equal division.
n
nSection 1505
n(1) A person to whom a particular share of inheritance has been left does not have the right to
the accession.
n(2) If some heirs have been designated with a share while with others without it, the vacant share
shall accede in favour of the designated heirs without a share.
n
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CC 2012
nSection 1551
n(1) In his testament, a decedent may provide a condition, determination of time or a mandate.
n(2) Where a clause of lesser importance only aims to apparently harass an heir or legatee as a
result of the decedent’s manifest arbitrariness, it is disregarded. A clause of lesser importance
which is clearly contrary to public order or is incomprehensible is also disregarded.
n
nSection 1563
n(1) If a person is granted a right with an impossible resolutive condition, it is disregarded.
n(2) A provision of a testament which grants a person a right with an impossible suspensive
condition is invalid
n
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Question 1 - solution
nHow does the law understand these sentences „…and let Titius be my heir to the remaining third, if
a ship should arrive from Asia within three months.“
n
nThere are two sentences:
nThe first sentence is an inheritance institution
nThe second one is a suspensive condition
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Question 2+3 - solution
nWhat would change if there were „within three Greek calendae“?
n„Greek calendae“ does not exist   that means, it is impossible condition
nThere are three possibilities of solution x each if them has differend solutions
n1. would be deleted „Greek“
nReason: mistake made by the inattentive author (like „on 31st june“)
n2. would be deleted the condition
nReason: presumption, that the testator wants to bequeath to the inheritor by the testament, not to
hurt him (used in Roman law, today in czech law for resolutiv condition – sec. 1563 (1) CzCC2012)
n3. would be deleted the condition and also the institution of
n       the conditional third
nReason: It is an impossible enactment. (use today CzCC2012 see sec. 1563 (2) )
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Question 2+3 – consequences of solutions
n1. would be deleted „Greek“
nIt would continue with a valid condition (wait, whether the ship arrives)
n2. would be deleted the condition
nThe condition would be deleted, therefore Titius gains the last part unconditionally and straight
away.
n3. would be deleted the condition and also the institution of the conditional third
nThe released third remains – to whom should it pass on?
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Question 4 + 5 - solution
nWhy does Titius immediately inherit one half, although he was designated for one third?
nIf the ship does not arrive – there are three possibilities:
n1. Maevius receives the conditional third x not possible, the condition prospers to Titius x not
possible to allow that the non-fulfilment would prosper to Maevius
n
n2. Someone else receives the conditional third – distant legal heirs, alternatively the state –
not happened according to the text (usualy today – combination of testamentary succession and
intestacy – in Roman Law it was impossible)
n
n3. It divides between Maevius and Titius. – Nemo pro parte testatus, pro parte intestatus decedere
potest – Not possible to combinate a testament´s succession and a legal succession. – application
of the one, exludes the other one (Roman law solution)
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Question 5 - solution
nTitius died a week before the ship arrived (within established period), could his son claim a part
of the estate?
nQuote from the fragment: „ since it could not be understood to have been given to him who was no
longer in existence at the time it should have been allotted.“
nWhen is it given? – if the ship arrives
nWho is not part of this world? – Titius
nThe condition prospered to Titius, it fell through with his death and his heir has no title to it.
n
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Thank You for Your attention
P. Salák jr.
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