THE TESTAMENTI FACTIO ACTIVA ET PASSIVA IN ROMAN AND CONTEMPORARY LAW

Abstract

Having on mind the fact that  the will as a basis for reference to the inheritance, dates from the very beginnings of the written Roman law and that even then there were assumed some conditions that should have been fulfilled in its construction, the question of the validity of the will, which among the other envisages the ability of the testator to cmopose a will as one of the conditions, deserves a special attention.

Classical Roman law relates the term testamenti factio to what the post-classical period calls testamenti factio activa, that is, the ability of the subject to compose a testamentum. This distinction, which, as we mentioned, arises in the classical period, is the result of the use of the general term testamenti factio and for denoting the ability of the subject to be named as a successor. Hence, for the distinction to be clear, in the post-classical period, the term testamenti factio activa signified the ability of the subject to compose a testament, while testameti factio passiva the ability to be a testamentary successor.

In that sense, our legislator clearly sets out the conditions for the validity of the will, through several articles of the Law on Inheritance. In summary, it is the ability of the testator to assemble a testamenti factio activa, a conscious and free statement of will (animus testandi) and the form of the will

This paper deals with a detailed explication of the active and passive testamentary capability of the person and hence the ability of the subject to appear as a testator or testamentary successor in Roman and modern law.