INTRODUCTION

All modern legal systems in Europe attempt to balance the moral precept of family solidarity with the principle of freedom of testation. But they do so in different ways. In German law, for example, the closest relatives are given the right to claim a “compulsory portion” (Pflichtteil) of the estate. The idea of a certain part of the estate having to go to the deceased's closest relatives even against his wishes dates back to Roman law. Down to the end of the nineteenth century, the Roman rules were still applicable in those parts of Germany that were governed by the ius commune. They were modified and rationalised by the draftsmen of the German Civil Code of 1900 (BGB), but the general idea on which they were based remained unaffected. The formulation provided by the BGB was not uncontroversial, either then or later. Predominantly, however, it has been and remains accepted. Today, the indefeasible claim of the closest relatives to a share of the estate is, like the principle of freedom of testation, widely taken to be guaranteed by art 1411 of the German Constitution (“Property and the right of inheritance are guaranteed”).

The present chapter provides an overview of the development of the idea of a right to obtain part of the estate even contrary to the will of the testator. It deserves our attention not only because it is the historical root of the compulsory portion of modern law, but also as a relatively well-documented example of the struggle to find reasonable solutions within the area of tension created by the two principles mentioned above.

By comparison with other areas of private law, the law of succession has fallen into neglect. Academic literature is surprisingly sparse even in relation to national systems of law, while such comparative treatments as exist are often little more than country-by-country summaries. Yet succession law is on the move. Some causes are discussed in the first chapter of this volume. The relationship between family law and the law of succession has become more apparent and better understood, and the impact on the latter of changes in the former can be seen, for example, in the shift of focus from the “nuclear” family to a more inclusive concept which extends to partners outside of formal marriage. In another important development, human rights instruments have led to restrictions on freedom of testation, to the removal of succession rules which discriminate against, for instance, the extra-marital child, and to a reconsideration of aspects of customary succession systems. Above all, social and economic change has had, and will continue to have, a marked influence on the law's development. As these trends are not confined to any one country, they present a challenge to the view, hitherto widely held, that succession law is a matter of local concern and local practice, and that little is to be gained from comparative research. One result has been a new interest in the possibility of harmonisation of succession law, especially in the European context. Another has been to open out the vista for more focused comparative research.