Il divieto di patti successorii e gli acquisti a causa di morte nel diritto romano

Abstract

Abstract 
It is common to find in civil law treatises the assertion that the prohibition of agreements as to succession stands in continuity with Roman law, as has been argued by a large part of scholars in this discipline, in which, however, there is no lack of different views. On the basis of a careful analysis of the sources, indeed, several studies restore the problem to its historical dimension and considerably circumscribe its range. In this perspective, this essay just considers the range of the expression ‘mortis causa capere’, used by classical jurists to indicate a particular category of asset purchases, determined by transactions arranged with a view to one’s death. Such transactions do not qualify as wills, and are evidently constructed in a contractual dimension. Emblematic, in this sense, is the example of the donatio mortis causa, the development of whose doctrine in relation to the mortis causa capere seems to have to be traced back to the authority of Julian, which emerges repeatedly – still in the Severan period – in jurisprudential fragments not free from contradictions and obscurities, for the most part collected in title XXXIX.6 of the Justinian’s Digest. The examination of the texts allows to retrace the history of the mentioned Julian influence on the jurists of the following ages and pushes to a further deepening of the research on the relationship between the reflection of the prudentes and the authoritative production of the considered field of law.

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