The positive contract of inheritance and the problem of its binding effect
Author
Yakupoğlu, Sekine Derya
Advisor
Koçhisarlıoğlu, Cengiz
Date
2019-02Publisher
Bilkent University
Type
ThesisItem Usage Stats
132
views
views
3,101
downloads
downloads
Abstract
Besides the unilateral freely revocable testamentary will, the second form of
testamentary dispositions is the contract of inheritance. The contract of inheritance is
on the one hand a form of testamentary disposition, and on the other hand a contract.
Due to its nature, the inheritance contract is also referred to as a contract with dual
character. By means of its binding character, the contract of inheritance constitutes a
substantial alternative to the testamentary will. Taking into consideration the
testator’s private autonomy in terms of private law, it is worth examining the
significance of the binding effect of the contract of inheritance.
The Turkish Civil Code Art. 527/1 states that the testator, by means of a contract of
inheritance, commits to bequeath his estate or legacy to the other contracting party or IV
a third party. This is the legal definition of the positive inheritance contract. These
are the two main types of inheritance contracts, whereby the principle of numerus
clausus does not apply.
According to Art. 527/2 (ZGB Art. 494/2), the testator may freely dispose of his
assets despite the concluded inheritance contract. However, testamentary dispositions
or gifts that conflict with the obligations under the contract of inheritance are
challengable. The binding effect of the contract of inheritance described in Art. 527/
2 is highly controversial, and thus there are different opinions in literature and case
law.
The Turkish Civil Code Art. 527 is the translation of Art. 494 of the Swiss Civil
Code. Therefore, this dissertation focuses primarily on the opinions expressed in the
Turkish and Swiss legal systems and their case law with regard to the binding effect
of the contract of inheritance. The dissertation also refers to German law to the
extent where it is necessary.