Istanbul Law Review
The Conditions of Heirship Qualification in Roman LawNilgün Dinçer Araz
When a Roman citizen not under the control of anyone died, that person’s heirs would possess the estate. The heir(s) continued the personality and worship previously done by the legator in the early times. Another critical consequence of carrying out the inheritance qualification in Roman law was the responsibility to the estate’s creditors. The subject of this research relates to who was able to obtain inheritance as an heir under Roman law, since the inheritance of the estate has very important consequences. After a person who is qualified to be a legator died, certain persons appointed by them, or certain persons designated by law if they died without making a will, were eligible to become heirs. In order to be able to qualify as inheritor, although it was necessary to be called into the inheritance through or without a will, by law, it was also required to accept the inheritance for extraneous heirs (extranei heredes). Extraneous heirs, were heirs who were not members of the household or familia. In addition to these, it was necessary to have a license to be an heir to carry the qualification of inheritor. However, in order for the inheritance to be acquired through a will, and therefore the quality of inheritance to be obtained, the conditions set out in the lex Iulia et Papia extracted by Emperor Augustus were also to be met. In contrast, deprivation of inheritance would not have caused the loss of the right to inherit, but only meant confiscation of the acquired inheritance by the state.
Roma Hukukunda Mirasçılık Vasfının ŞartlarıNilgün Dinçer Araz
Hiç kimsenin hakimiyeti altında olmayan bir roma vatandaşı öldüğünde, bu kimsenin mirasçıları terekeye sahip olurdu. Tereke, intikal edebilen bütün hak ve borçlardan oluşmaktaydı. Hatta mirasçı(lar) ilk zamanlarda, mirasbırakanın şahsiyetini ve dini geleneklerini de devam ettirirdi. Roma hukukunda mirasçılık vasfı taşımanın en önemli sonuçlarından bir diğerini de, tereke alacaklılarına karşı sorumluluk oluştururdu. Zira mirasın kabulüyle birlikte mirasçının kendi malvarlığıyla mirasbırakanın malvarlığı birbirine karışırdı ve mirasçı, tereke alacaklılarına karşı bütün malvarlığıyla sorumlu olurdu. Terekenin mirasçısız kalması çok önemli sonuçlar doğurduğu için mirasçı sıfatıyla mirası kimlerin elde edebileceği bu araştırmanın konusunu oluşturmaktadır. Roma’da sadece hak ehliyetine sahip olmak mirasçılık vasfını da beraberinde getirmezdi. Bir kimsenin mirasçı vasfına sahip olabilmesi için belli şartların da gerçekleşmiş olması gerekirdi. Mirasçı atamaya ehliyetli bir kimse öldükten sonra, vasiyetnamesinde mirasçı olarak atadığı kimse(ler); vasiyetname yapmadan öldüğü takdirde de kanunun belirlediği belirli bazı kimseler mirasçı olmaya hak kazanırlardı. Zira Roma hukukuna göre, hiç kimse kısmen mirasçı naspederek, kısmen de etmeyerek ölemezdi. Mirasçı vasfını elde edebilmek için vasiyetname aracılığıyla veya vasiyetname olmadığı takdirde kanunen mirasa çağrılmak gerekse de aile dışı mirasçılar için ayrıca mirasın kabul edilmesi de gerekirdi. Aile dışı mirasçılar, hane halkı veya aile üyesi olmayan mirasçılardı. Bunlara ek olarak, bir kimsenin mirasçı vasfını taşıyabilmesi için mirasçı olabilme ehliyetine de sahip olması gerekirdi. Ancak vasiyetname aracılığıyla mirasın kazanılabilmesi dolayısıyla da mirasçı vasfının elde edilebilmesi için İmparator Augustus tarafından çıkarılan lex Iulia et Papia’da belirlenen koşulların da sağlanmış olması gerekirdi. Bu kanunlarla belirlenen şartlara sahip kimseler, mirası “ mirasçı olabilirdi. Buna karşılık mirastan yoksunluk, mirasçı vasfının kaybına neden olmayıp sadece kazanılan mirasa devlet tarafından el konulmasına yol açardı.
The subject of the present study is the question of who would obtain the estate as an inheritor with the death of a person who is not under the paternal power (sui iuris) in Roman law. According to Roman law, the death of a Roman sui iuris citizen had to take place in order for someone to become an heir. Then, inheritance was done by legal inheritors through the will of the legator (ex testamento) or by calling into inheritance (delatio) by law (ab intestato), even if the heir was not appointed by anyone or there was no will. In addition, if the will made was invalid, the heirs appointed by the will did not accept the inheritance, or did not have the ability to obtain the inheritance, the legal inheritance would have found a field of application. Otherwise, as a rule of Roman law, inheritance by will and legal inheritance would not coexist. Inheritors (sui heredes) who would become sui iuris with the death of the head of a family, consisted of his wife, their children born in a marital union (or at least being fetuses), and their grandchildren from a previously deceased male child. In addition, until the reign of Iustinianus, the slaves appointed by the legator as heirs by freeing in their will would also obtain the inheritance as a domestic heir spontaneously, without any acceptance process upon the death of the legator. These people were considered the mandatory heir according to the ius civile since they could not be prevented from obtaining the inheritance. However, thanks to the privilege of power to be able to decline an inheritance for sui heredes (beneficium abstinendi), these people would not be responsible for the debts of the estate, even if they still had the right to inherit. In order to prevent the unfair consequences of the term on slaves as mandatory heirs because of the situation in which passives exceeds the actives, praetor stepped in and gave them the “privilege of keeping their own goods separate from the estate (beneficium separationis).” Thus, although the slaves appointed as heirs bore the qualification of inheritors, the peculium (or the assets) acquired by the legator were protected from the intervention of creditors after their death. Everyone except domestic heirs had to accept the inheritance as an external heir (heredes extranei) after being called to the inheritance. Since these people also had the opportunity to not accept the inheritance, they were also counted as the discretionary heir (voluntarii heredes). First granted to these persons, during the reign of Iustinianus, the privilege of “bookkeeping or inventory” (beneficium inventarii) enabled liability against creditors within the scope of all the goods that made up the estate. Acceptance of inheritance was carried out by a legal process (cretio) depending on the form, which usually consisted of 100 days in the Classical Legal Period or behavior showing the desire to be heir, that is, by acting as if he were the heir (pro herede gestio). However, in the reign of Iustinianus, there remained only the concept of aditio for accepting the inheritance with an ordinary statement and without any formal procedures after the abolishment of cretio. Those who could not become an inheritor according to ius civile, could demand praetor inheritance (bonorum possessio) within a period of 100 days or one year that was granted to them. This person could apply for the property protection granted by praetor for lawsuits against estate creditors, and they could obtain ius civile possession of estate assets at the end of acquisitive prescription period. According to Roman law, the last condition necessary to obtain the qualification of an heir was a license to inherit. For domestic heirs, it was enough to have inheritance licenses at the time of the death of the legator. However, at the time of the bequest in the acquisition of the inheritance through the will, if there were external heirs, there had to be an inheritance license at the time of the acquisition of the inheritance. There were no restrictions on the inheritance license of a sui iuris Roman citizen. In contrast, the inheritance licenses of women, family sons, and slaves were restricted. In addition to this, if it was desired to appoint a family child under the dominance of another father or slave belonging to a third person as an heir, the acquisition of the inheritance would have occurred for the benefit of the people who control this family child or slave. For this reason, the father of the family child appointed as the heir or the master of the slave also had to have an inheritance license. The ability to obtain inheritance (caducitas) and the inheritance license are different concepts. A person might not have had the ability to obtain an inheritance even if they had an inheritance license. Likewise, the ability to obtain inheritance was only true in the case of being called to the inheritance through a will. At the same time, the scope of inheritance was determined by the laws enacted by Emperor Augustus. By these laws, men between the ages of 25 and 60 and women between 20 and 50 were required to marry and have children. Anyone who was unmarried in this age range (caelibes) or who had not made a marriage suitable for their class would not receive their share of the inheritance bequeathed to them by will. If they did not fulfill their obligation to have children despite being married within this age range (orbi), they obtained half of the share of the inheritance left to them. However, those who did not have children in this age range could bequeath to their spouses only one-tenth of their assets through a will. Finally, a person who lacked an inheritance (indignus), would acquire the inheritance and bear the qualification of an heir. However, since it was not considered appropriate in some cases for this person to earn an inheritance, the assets they obtained were taken from them by aerarium or fiscus.