Izvorni znanstveni članak
https://doi.org/10.31141/zrpfs.2019.56.133.537
Collatio bonorum
Blanka Kačer
; Pravni fakultet Sveučilišta u Splitu, Split, Hrvatska
Sažetak
Collatio bonorum is a legal institute of inheritance law, the purpose of which is to balance the legal position of legal heirs of the same hereditary order. The balance is achieved by calculating all gifts received during the life of the testator, which means that the first thing to do is attempt to balance the position of those heirs who either have not received gifts or who have not received them to a certain extent with the position of other gift recipients – legitimate heirs of the testator, by distributing from what the testator left behind. The matter at hand is the substitution of the testator’s will sui generis. The legislator specifically stipulates which gifts are not included as well as the method of the calculation. Quite specific conditions for the possible reduction of gifts are also prescribed, but under the condition that it is the only way to preserve the legitimate portion of the heir who requested it. Although it is a relatively old legal institute, research has shown, however, that it would be necessary de lege ferenda to correct certain deficiencies.
The task of this paper is a detailed analysis of the collatio bonorum institute. The aim is to establish possible deficiencies de lege lata and to set a proposal de lege ferenda. The author discovered short comings of the Croatian positive law regulations namely in the rule on determining the value of gifts in the calculation, because it would be very useful to prescribe the possibility of deviating from the prescribed rule, if its application would obviously be contrary to the principles of fairness and equality before the law, consequently to the rule of law and legal certainty. In addition, the author found a similar situation it in other places, especially with regard to passive legitimation, including the status of fruits and benefits, the gifts which are not calculated, when it comes to the use of the word CAN (it can be concluded if it was the will of the testator), the right to return gifts, status of the expenses of supporting the heir and debt to testator, and finally active legitimation. What should be particularly praised is that there are solutions of the Croatian positive law that are far better than some comparable, even German and Austrian ones. Numerous methods have been used in this paper, including historical, comparative, methods of analysis and synthesis, inductive and deductive methods, classification method, generalization and specialization methods and a number of other methods.
Ključne riječi
collatio bonorum; legitimate portion; legitimate heirs; gift; accounting value of inheritance
Hrčak ID:
225692
URI
Datum izdavanja:
27.9.2019.
Posjeta: 4.660 *