Social clause

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A sozinische clause , even sozinische or socinische Kautel , cautela Sozini or cautela socinii (from Latin cautela - "Caution, protection, cavere = beware, beware take before, back up") or dial clause is a penalty clause in the law of succession . and subject to an inheritance forfeiture clause in a disposition due to death .

It allocates more to a person entitled to a compulsory portion than his compulsory portion amounts to, but ties the entire allowance or at least the additional allowance to the condition that the person entitled to a compulsory portion accepts a certain burden with regard to the additional allowance. The person entitled to a compulsory portion then only has the choice of either accepting the inheritance as it is, i.e. with the entire burden, or - depending on whether the entire allowance or only the additional allowance is linked to the full assumption of the burden - to withdraw to the compulsory portion or to withdraw to be satisfied with the compulsory portion coverage.

In contrast to the forfeiture clause in inheritance law (also known as the cash clause), the heirs (entitled to compulsory portion) are given the choice between a (higher) encumbered or restrictive inheritance grant or an unencumbered, smaller inheritance grant (usually the compulsory portion).

Origin of name

Although the Socinian clause was already known in late Roman law under Justinian I, it was named after the Sienese lawyer Marianus Socinus (* 1481 or 1482; † 1556).

Goal setting

The social clause should

  • to enforce the last will of the testator permanently and possibly also
  • Avoid disputes among heirs.

Germany

According to Section 2306 of the German Civil Code (BGB) , a person entitled to a compulsory portion who has been appointed as heir, who is restricted by the appointment of a subsequent heir, the appointment of an executor or a division order, or if he is burdened with a legacy or a condition, can request the unencumbered compulsory portion if he is simultaneously on the (higher , encumbered or restrictive) portion of the inheritance waived.

The extent to which a social clause is compatible with Section 2306 of the German Civil Code has not yet been conclusively clarified.

Austria

This article or the following section is not adequately provided with supporting documents ( e.g. individual evidence ). Information without sufficient evidence could be removed soon. Please help Wikipedia by researching the information and including good evidence.

Up to December 31, 2016, the scope and scope of the social clause resulted from Section 774 of the Austrian Commercial Code . It regulated and provided that

  1. the compulsory portion must remain completely free for the person entitled to compulsory portion;
  2. every condition or burden restricting the compulsory portion is invalid,
  3. a restriction or burden can only be applied to the part that exceeds the compulsory portion.

This led to the (restrictive) formulations when the social clause was used in legacies under Austrian inheritance law. In the wording of the social clause under Austrian law, the person entitled to a compulsory portion was usually instructed by the testator in the legacy to voluntarily bear a certain burden or condition beyond the compulsory portion. If he did not do this, he should only receive the statutory portion.

The heir and the beneficiary of the compulsory portion were thus given the choice by the testator of either receiving a grant that was associated with encumbrances or restrictions and which exceeded the compulsory portion in terms of value or only taking the unencumbered, (lower) compulsory portion.

If there is a social security certificate, the heir has used up his right to vote by submitting the declaration of inheritance. He can no longer revoke the court declaration of inheritance and also no longer assert the claim to the compulsory portion. The invalidity of the restriction or burden restricting the compulsory portion, as standardized in § 774 ABGB, is only relative; it does not apply if the person entitled to a compulsory portion takes on the unfavorable burden voluntarily ( OGH in 7Ob495 / 56).

Liechtenstein

In Liechtenstein, the provisions of §§ 720, 774 were FL-Civil Code from §§ 720, 774 öABGB (old) rezipiert . Until December 31, 2016, these were largely identical. Section 774 FL-ABGB continues to read: The compulsory portion can be left in the form of an inheritance portion or legacy, even without expressly naming the compulsory portion. However, it must remain completely free for the person entitled to the compulsory portion. Any condition or charge restricting the same is void. If the person entitled to a compulsory portion is assigned a larger portion of the inheritance, it can only be related to the portion that exceeds the compulsory portion. Section 720 FL-ABGB also continues as before: An order by the testator, whereby he forbids the heir or legatee to deny the last will with threatened deprivation of an advantage, should only be contested in the event that only the authenticity or the meaning of the declaration is contested will never have any effect while this section was repealed in Austria.

Foundations

A special form of the Socinische Kautel can also be included in a foundation declaration (e.g. foundation statute ). According to this, the beneficiary status of a person entitled to a compulsory portion in a foundation is made dependent on the fact that he does not make any claims to compulsory portion.

In such a case, the Socinische Kautel is not contained in a will, but in a foundation document and the conditional grant to the person entitled to a compulsory portion does not come from the estate.

Web links

  • RGZ 14, 200 . Judgment of OG and OLG Hamburg on I 506/83 of February 20, 1884 on the social clause in the old Hamburg inheritance law.

literature

  • Claudia Baumann: Forfeiture clauses under inheritance law . Heymann Verlag, Marburg 2009, Univ., Diss., 2008/2009, ISBN 978-3-452-27227-0
  • F. Böttcher: The legal meaning of the cautela Socini according to common law and according to the law of the civil code . Univ.-Diss., Leipzig 1909
  • Michael Hennig: The return to the socinischen clause, considerations on a reform of the § 2306 BGB . DNotZ 2003, pp. 399-422
  • Paul Oertmann: The Cautela Socini under the rule of the civil code . ZBlFG 15 (1915), pp. 357-377

Individual evidence

  1. ↑ See e.g. B. §§ 720, 774 ÖABGB , §§ 720, 774 FL-ABGB .
  2. ^ Giller, The legacy of the compulsory portion , in Gruber / Kalss / Müller / Schauer, Inheritance Law and Asset Succession 2010, § 19 margin no.99
  3. ↑ OGH, verdict of June 26, 2014 - 6Ob10 / 14k
  4. ↑ BGH, judgment of October 28, 1992 - IV ZR 221/91 para. 12
  5. ↑ See also Cod. 3, 28, 32.
  6. ↑ See e.g. B. Hennig, in DNotZ 2003, 403.
  7. ↑ See e.g. B. BGH in the judgment of June 24, 2009, NZG 2009, 1145–1149.
  8. ↑ Since January 1, 2017 (reform of inheritance law), § 774 ABGB regulates the obligation of the compulsory portion debtor to prove the existence of a reason for disinheritance. Section 774 sentences 2 and 3 in the old version up to December 31, 2016 was adopted in Section 780 (2) ABGB (new): Benefits in the event of death are to be valued at the time of death of the deceased. The compulsory portion is thus now taken into account at the assessment level.
  9. ↑ https://www.jusline.at/774_Wie_der_Pflichttheil_zu_hinterendung_ABGB.html
  10. ↑ See comparison table , Zak - civil law currently online.
  11. ↑ See also FL-OGH in 01 CG.2008.210, decision of September 3, 2010 [1] .