Fideicommissum substitution in the civil code regulation and its practical use

• Author: Carmen Teodora Popa
• Position: Faculty of Law, Department of Law University of Oradea, Oradea, Romania
• Pages: 55-61

AGORA International Journal of Juridical Sciences, http://univagora.ro/jour/index.php/aijjs

ISSN 1843-570X, E-ISSN 2067-7677

No. 1 (2017), pp. 27-32

27

FIDEICOMMISSUM SUBSTITUTION IN THE CIVIL CODE

REGULATION AND ITS PRACTICAL USE

CARMEN TEODORA POPA

Carmen Teodora Popa

Faculty of Law, Department of Law

University of Oradea, Oradea, Romania

Corespondence: Carmen Teodora Popa, University of Oradea, General Magheru St. Oradea,

Romania

E-mail: bnppopacarmen@gmail.com

ABSTRACT:

This paper aims to analyze the fideicomission substitution in light of the change in the New

Civil Code in this field and its use in practice. Analyzing the current regulation in the matter

of the institution of fideicomission substitution, predominantly French, one can see a change

in the legislator's optic in relation to the old regulation where such a legal operation was

forbidden. From the point of view of practitioners, however, we have found that they call too

little or no such institution.

KEYWORDS: FIDEICOMISSION SUBSTITUTION, LIBERALITY, TESTAMENT,

ESTABLISHED, DISPOSE

1. SHORT HISTORY

The origin of the fideicomission substitution can be said to be the Roman law where

there were two operations that can be considered as precursors to the current fideicomission

substitution

1

substitution and fideicomisis. The substitution of heirs consists of a provision

whereby the disposer designates another person to take the place of the established heir, when

the latter would not have collected the inheritance. In Roman law there were several forms of

substitution: vulgar, pupil, quasi-pupil or exemplaris

2

.

Vulgar or habitual substitution is identified with that of the current regulation and is a

provision contained in a will by which a second legatee is appointed by the agent to receive

the property or goods as a subsidiary if the first legatee does not they might or would not

want to receive them.

Pupil substitution consists in appointing a person who would come to the inheritance

instead of the institution if the latter would have died before puberty.

Quasi-pupil substitution is the provision that allowed the parents of the family to

choose an heir to the child who, due to his state of mind, was unable to be tested

3

.

The Fideicomis was a provision contained in a testament that provided a gratification

request to preserve and transmit the good received to a second gratificated

4

.

1

J. Kocsis, P. Vasilescu, Drept civil. Succesiuni, [Civil law. Succession ], Editura Hamangiu, București, 2016,

p.189.

2

A.N. Gheorghe, Manual de drept succesoral,[ Manual o f succession law] Editura Hamangiu, București, 2013,

p.130.

3

Fr. Deak, R. Popescu, Tratat de drept succ esoral, [Inheritance la w]vol. II, Moștenirea testamentară, Editura

Universul juridic, București, 2014, p. 219.