The lex Falcidia is a plebiscitum (41–40 bce) that restricts the testator’s capacity to charge his testament with legacies, namely sums of money or objects the heir must transfer to a third person (legatum).1 According to the lex Falcidia, legacies decreed by the deceased cannot exceed by more than three quarters the worth of the whole estate.2 In consequence, the heir must receive at least one fourth of the estate free from legacies, he must obtain so called “Falcidian quarter.”
The Law of the Twelve Tables declared that the testator had total freedom to charge the testament with as many legacies as he wished.3 To the extent that testators availed themselves of this freedom, the heirs designated in the testaments declined from accepting the inheritance, having only obligations arising from it without any compensation. Since a testament without an heir could not exist in the Roman conception, such a testament was therefore void. As a further consequence, this entailed intestate succession and the nullity of all dispositions in the initial testament. To avoid these consequences, which were detrimental to all parties involved, the Romans started to legislate against this tendency to charge the heir with too many legacies. They considered legacies a luxury because the institution of an heir was necessary for social and religious reasons, whereas the bestowal of legacies was not. The first attempts at limiting legacies, the lex Furia (181–169 bce), which prohibits the acceptance of legacies of more than 1000 asses, and the lex Voconia (bce), which stated that legacies of deceased from the highest census class could not exceed the sum bestowed upon the heirs, were awkward insofar as they made use of absolute limits to the testator’s freedom. This legal technique was prone to bypassing.
The solution to this problem was the lex Falicida, which ordains “that he [the testator] is not allowed to bequest more than three quarters [of his estate], therefore the heir must have one fourth of the estate.”4 The law was a compromise between the testator’s freedom and the heir’s interest to have some compensation for his duties. The initial rationale of the lex Falcidia—to rein in on the luxury of legacies and make the testament acceptable to the heir—was later superseded by the more general purpose of conserving the functionality of the testament as an institution.5
The ensuing Falcidian calculus is carried out in four steps: first, it is necessary to estimate the deceased’s estate; second, the amount of the legacies are estimated; third, estate and legacies are to be compared, to determine whether the legates exceed the legitimate three quarters of the worth of the estate. If this is the case, the fourth step requires the legates to be reduced. Every single one of these steps entails innumerable problems, only some of which can be discussed here.6 In the case where the testator exceeds this limit, the legates are reduced proportionally.7 This reduction of the legates takes place ipso iure.8 The basis for calculating the “Falcidian quarter” is the estate’s worth in the moment of the deceased’s death, after having subtracted his debts.9 In the event that the deceased’s claims against third persons, or their claims against him, are under a condition, or that the legacy is a under condition, the victorious opinion among Roman lawyers estimates the outcome according to probability; the possibility also exists to request guarantees from the beneficiaries.10 A special problem arises if the deceased has more than one heir and the legacies burden one of them over the limit decreed by the lex Falcidia but not the other. This question entails even more complicated problems, the general principle being that every (partial) heir must have his free quarter.11
In the case of substitutio pupillaris, the substitute heir may be charged two times with legacies, from the first testament by which the deceased instituted the pupillus, and from the second testament by which the deceased substituted the heir in the event that the pupillus should die before reaching puberty. The jurists consider, with the help of a legal fiction, the substitute heir to the deceased—in reality he is heir to the pupillus—and help him to the “Falcidian quarter” as if there had been only one testament.12
Given its nature as ius publicum,13 it is not possible under any condition for the testator to exclude the application of the lex Falcidia.14 The heir, however, being the lex Falcidia’s beneficiary, can renounce its application.15 The lex Falcidia does not apply in the case of military personnel (testamentum militare).16
A special problem concerning the lex Falcidia arises in the case of a fideicommissum (see fideicommissa).17 The senatus consultum Trebellianum (56–57 ce) assures that the beneficiary (fideicommissarius) is actively and passively responsible for any action of or against the estate. An senatus consultum Pegasianum (from the reign of Vespasianus) applies the lex Falcidia to fideicommissa.18 It ascertains that, in the case of a fideicommissum, the heir under ius civile who has to restore the estate to a beneficiary (the fideicommissarius) can keep the quarter, just as in case of legacies.19 If the heir is forced to accept the inheritance, he can avail himself of the senatus consultum Trebellanianum relegating all claimants to the beneficiary; if he accepts deliberately, he can avail himself of the senatus consultum Pegasianum, reserving the Falcidian quarter for himself.
Astolfi, Riccardo. La lex Iulia et Papia. 4th ed. Milan: CEDAM, 1996.Find this resource:
Babusiaux, Ulrike. Wege zur Rechtsgeschichte: Römisches Erbrecht. Cologne: Böhlau, 2015.Find this resource:
Kaser, Max. Das römische Privatrecht, 2nd ed. Munich: Beck, 1971.Find this resource:
Mannino, Vincenzo. Il calcolo della “quarta hereditatis” e la volontà del testatore. Naples, Italy: Jovene, 1989.Find this resource:
Manthe, Ulrich. Das senatus consultum Pegasianum. Berlin: Duncker & Humblot, 1989.Find this resource:
Schanbacher, Dietmar. Ratio legis Falcidiae: die falzidische Rechnung bei Zusammentreffen mehrerer Erbschaften in einer Hand. Berlin: Duncker & Humblot, 1995.Find this resource:
Schanbacher, Dietmar. “§ 70 Lex Falcidia und SC Pegasianum.” In Handbuch des Römischen Privatrechts. Edited by Ulrike Babusiaux, Christian Baldus, Wolfgang Ernst, Franz Stefan Meissel, Johannes Platschek, and Thomas Rüfner, forthcoming. Berlin: Walter de Gruyter, 2019.Find this resource:
Stagl, Jakob Fortunat. “Das ‘Testamentum militare’ in seiner Eigenschaft als ‘ius singular.’” Revista de Estudios Histórico-Jurídicos 36 (2014): 129–157.Find this resource:
Voci, Pasquale. Diritto ereditario romano: Vol. II, Parte speciale: successione ab intestato, successione testamentaria. Seconda edizione rifatta. Milan: A. Giuffrè, 1963.Find this resource:
Voci, Pasquale. Diritto ereditario romano: Vol. I, Introduzione: Parte generale. Seconda edizione riveduta. Milan: A. Giuffrè, 1967.Find this resource:
Wacke, Andreas. Die Rechtswirkungen der lex Falcidia. In Studien im römischen Recht, gewidmet Max Kaser zum 65. Geburtstag gewidmet von seinen Hamburger Schülern. Edited by Dieter Medicus and Hans Hermann Seiler, 209–251. Berlin: 1973.Find this resource:
(1.) Max Kaser, Das römische Privatrecht, 2nd ed. (Munich: Beck, 1971), 756.
(2.) Text in Paul. D. 35.2.1 pr.
(4.) Gai. I. 2,27.
(5.) Cf. Gai. I. 2,224–227; I. 2,22 pr. Kaser, Das römische Privatrecht, 757.
(6.) The most recent works on this topic are Mannino and Schanbacher.
(8.) Gai. Dig. 35,2,73,5. The lex is accordingly to be considered a lex perfecta; and Dietmar Schanbacher, Ratio legis Falcidiae: die falzidische Rechnung bei Zusammentreffen mehrerer Erbschaften in einer Hand (Berlin: Duncker & Humblot, 1995), 34.
(9.) Gai. D. 35,2, 73 pr. Pap. D. 35,2,8.
(10.) Gai. 35,2,73, 1–2.
(11.) Inst. 2,22,1.
(12.) Gai. D. 35. 2.79.
(13.) Pap. Dig. 35.2.15,1.
(14.) Pap. Dig. 126.96.36.199.
(15.) Paul. Dig. 35.2.71: ex heredis causa lata est.
(16.) Tryph D. 29,1, 18 pr; on the testamentum militare, see Jakob Fortunat Stagl, “Das ‘Testamentum militare’ in seiner Eigenschaft als ‘ius singular,’” Revista de Estudios Histórico-Jurídicos 36 (2014), 129–157.
(17.) Ulrike Babusiaux, Wege zur Rechtsgeschichte: Römisches Erbrecht (Cologne: Böhlau, 2015), 279–289.
(18.) Gai. 2, 254.
(19.) Ulrich Manthe, Das senatus consultum Pegasianum (Berlin: Duncker & Humblot, 1989).