Actio ex testamento

In ancient Roman law, the actio ex testamento was an action for surrender of the legacy of damnation ( legatum per damnationem - from Latin: legatum = legacy).

The legatee (legatee) did not have the authority to procure the property to which he was entitled from the inheritance. Rather, he had to sue for his rights. While an heir inherited all or part of the estate , becoming the legal successor of the testator, the legatee only received a specific asset from the estate. For him, this meant taking his own legal action. If the inheritance or part of it was refused, the heir applied for the rei vindicatio (vindication legacy), while the legatee was referred to the actio ex testamento (damnation legacy ). Justinian I merged both forms of legacy.

Commitment transaction

In contrast to the vindication legate, the damnation legate was an obligation. The judicial word formula "damnus esto" meant: "He should be obliged". The wording makes it clear that an obligation and not a disposition transaction was pursued. In terms of content, the obligation business could have different special forms. In the case of a legacy of claims, the testator bequeathed a claim against a third party to the legatee, whereby the heir had to cede this to the legatee . In the case of the bequest, the testator bequeathed items that did not belong to him, which the heir had to acquire and give to the legatee.

Legal legacy restrictions

Legacies were more often subject to legal restrictions in Republican times .

For example, the lex Furia testamentaria (between 204 and 169 BC) decreed that bequests were allowed to amount to a maximum of 1000 As , otherwise four times the excess amount had to be returned to the heirs. Blood relatives were excluded.
The lex Voconia from 169 BC. BC forbade citizens of the first census class to accept more legacies than the heir or all heirs together received. The law's sanction has not been passed down.
The lex falcidia allowed the testator from 40 BC. Chr., To determine about 3/4 of the value of the estate by legacy, whereby only 1/4 of the value had to remain with the heirs.

Individual evidence

↑ ^a ^b ^c ^d ^e ^f Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 360 ff. (360 -362).
↑ ^a ^b ^c Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , pp. 196-198.

[Selb-1] ↑ ^a ^b ^c ^d ^e ^f Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 360 ff. (360 -362).

[Honsell-2] Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , pp. 196-198.