ro en
universul juridic magazin
Revista Română de Drept Privat

Le fondement juridique de la capacité des personnes non conçues d’être gratifiées par des substitutions fidéicommissaires fondées grâce au don

This article aims at finding the justification of the opportunity of rewarding unconceived persons by a fideicommissary (indirect) substitution founded upon donation in the light of the provisions of art. 999 of the new Civil Code. After a brief history of the institution of fideicommissary (indirect) substitution, a parallel is drawn with the regulation of the French Civil Code (especially art. 1055), which was the source of inspiration of art. 999 NCC. The main support of this idea is found in three institutions having similarities with the institution provided for under art. 999 NCC. The first institution consists of gratuitous transfers with encumbrances. Moreover, art. 208 of the NCC, respectively art. 19 paragraph 3 of the Government Ordinance no. 26/2000 regarding the associations and the foundations accept the idea of foundations established by gifts. Finally, the closest institution consists of the stipulation provision. The similarity between the stipulation provision and that laid down by art. 999 of the NCC is consolidated as well, by the provisions of the German law and French law, described in a comparative manner.