Die Lex Rei Sitae in der Europäischen Erbrechtsverordnung – Inhalt, Schranken und Funktion

by Björn Laukemann

MPILux Working Paper 2 (2014)

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ABSTRACT: The EU legislator aims to reduce objections in the context of cross border successions. Given this objective, should regulatory differences arising from diverging concepts of transfer by succession still be taken into account? This becomes particularly prominent when national succession regimes abstain from protecting publicity under property law when determining the transfer by universal succession (ipso iure-acquisition of all assets), while do so with regard to individual assets when executing the will of the deceased through dispositions inter vivos. This article addresses the delineation between property and succession law with regard to the transfer of ownership – one of the most controversially debated topics of the new Succession Regulation both from a dogmatic and practical perspective. On the basis of a functional analysis, the paper attempts to display that the classification problem can only be satisfactorily resolved through a differentiation between specific concerns of property law such as publicity, speciality or the integrity of registry systems, on the one hand, and liability considerations emblematic of succession law, on the other. The author illustrates that only a narrow interpretation of the numerus clausus of property rights, sharply to be distinguished from the numerus clausus deriving from succession law (concerning types of disposal by reason of death), coincides with the overarching objective of the Succession Regulation: to put an end to the competition for the better law of succession.

KEYWORDS: European Succession Regulation – numerus clausus of property rights – publicity – principles of property law – adaptation of property rights – lex rei sitae and lex successionis – legatum per vindicationem – legatum per damnationem – reservation of registry law – transfer by succession – settlement of the inheritance.