THE RELATION BETWEEN FREEDOM OF TESTATION AND CONTRACTUAL FREEDOM FROM THE INHERTIANCE LAW PERSPECTIVE

Abstract

Contractual and testamentary freedoms are the pillars of modern civil society and are manifested through the possibility of concluding a contract as inter vivos means of regular property exchange, or through testament as non-regular means of property disposition since its effect is attached to the testator’s death. The modern inheritance law is characterized by the trend of contractualization, thus some means of arranging post-mortal distribution of property (inheritance) appear in form of contractual disposition. Their introduction into some legal systems is under question, since they limit testamentary freedom, which is considered to be the consequence of the theory on absolute freedom of testation that is deeply rooted in some legal traditions. The aim of this research is to determine whether it is necessary to analyze freedom of testation and contractual freedom as opposite, or whether it is possible to observe them as complementary in some segments. For that purpose, the author manages to identify the points of approximation and distinction between these two freedoms, through their comparison. Furthermore, this problem is considered from the perspective of inheritance law, which is specifically discussed from the point of view of the legal effects of the inheritance agreement over testamentary disposition.