Page 43

AD ALTA

JOURNAL OF INTERDISCIPLINARY RESEARCH

REMARKS ON THE OBJECT OF SPECIFIC BEQUEST UNDER POLISH LAW

ANETA MAKOWIEC

Jagiellonian University, Gołębia 24 St., Cracow, Poland
email: aneta.makowiec@uj.edu.pl

Supported by the Foundation for Polish Science (FNP)

Abstract: This article presents issues connected with the prescriptive regulation of the
object of the specific bequest. One of the most essential questions related to the
institution of specific bequest is the understanding of its object. The paper attempts to
define the meaning of notions that were used by the legislator in Article 981

Section 2

Items 1,2,3 and 4 of the Polish Civil Code. The scope of use of the institution of
specific bequest depends exactly on their interpretation. Without any verbal changes to
Article 981

Section 2 of the Polish Civil Code, you may differently shape its scope by

employing various definitions of designata of this provision. Against this background,
the paper endeavours to present, analyse and assess opinions demonstrated by
representatives of the doctrine with regard to such details. New suggestions as to
solutions of the most controversial questions are also starting to appear.

Keywords: disposition mortis causa, object of specific bequest, specified as to its
identity, transferable property rights, enterprise or agricultural farm, usufruct or
servitude established in favour of the legatee, legatum per vindicationem, succession

Specific bequest – general remarks

The institution of specific bequest (also called a registered or
specific legacy) has been known since the Roman times. The
Roman bequest was a unilateral disposition mortis causa whose
aim was to provide an indicated person with their inheritance

Such person was not an heir, but a beneficiary of the bequest
(also called a legatee). In the first century BC, in the times of
Quintus Mucius Scaevola, there were four types of legacies. The
person selecting the type of legacy was the testator who
employed proper words to achieve the planned effect. The most
similar to the specific legacy introduced into Polish law was the
Roman legacy called legatum per vindicationem – i.e. a legacy
established by words do and lego whereby the testator could
directly transfer a thing or servitude being the quiritary property
of the deceased

. Fungibles had to be the property of the testator

at the time of his death; however, things specified as to their
identity had to be his property both at the time of making his will
and at the time of his death

. The said bequest was drafted only

with designation of the beneficiary of the bequest and the object
bequeathed. It affected real rights, directly reducing the estate

Acquisition of such legacy provided the legatee with the right to
file a claim to release the object of the legacy within the archaic
procedure of legis actio sacramento in rem, later rei vindicatio
(or vindicatio servitutis).

The specific legacy was later introduced mainly in Latin
countries of Europe. Despite diversification of this regulation in
individual countries, the core of this legal structure remains the
same, namely the object bequeathed to the beneficiary of the
bequest by the testator under his will upon the death of the
testator passes to the indicated person. Such legacy affecting real
rights was adopted, among others, by Italy (Article 649 Section 2
of the Italian Civil Code), Belgium (Article 1014 of the Belgian
Civil Code), France (Article 1014 of the French Civil Code),
Spain (Article 882 of the Spanish Civil Code), Luxembourg
(Article 1014 of the Luxembourg Civil Code), Portugal (Article
2249 of the Portuguese Civil Code), Romania, Greece, Hungary,
Japan, some countries of South America and Quebec

. The

concept of specific legacy has not been introduced by Germanic
countries. There exists only a legacy with obligation effect
(legacy by damnation) similar in nature to the Roman legatum
per damnationem. Within this form of legacy, the testator orders

A. Makowiec, Korzenie zapisu windykacyjnego w prawie rzymskim,

Правове життя:

сучасний стан та перспективи розвитку, Ukraina 2015, pp. 202-205.

M. Zabłocka [in:] Prawo rzymskie. Instytucje, W. Wołodkiewicz, M. Zabłocka,

Warszawa 1996, p. 203.

Ibidem, p. 203; J. Lewicki, System prawa rzymskiego, Lwów 1937, p. 56; M. Kaser,

Das römische Privatrecht, München 1971, p. 742-743.

K. Kolańczyk, Prawo rzymskie, Warszawa 2001, p. 492.

L. Salomon, The Acquisition of Possession in Legacies per vindicationem in

Classical Roman Law and its Influence in the Modern Civil Codes, Roman Legal
Tradition 3, 2006, p. 65 and next; Ph. Malaurie, Les successions. Les libéralités, Paris
2008, p. 282.

the heir to deliver a specific proprietary performance in favour
of the legatee. It was introduced in Germany (Section 2174 in
conjunction with Section 1939 of BGB), Switzerland (Article
562 in conjunction with Article 484 of ZGB), Austria (Section
684 in conjunction with Section 535 of ABGB) and Holland

Before going into detail on the institution of specific bequest
adopted by Polish law, we need to remark on motives for its
adoption. In Poland, the year 1989 was connected with
significant changes in social and economic life of the country.
Free market economy was beginning to shape, and the society
was gradually getting richer. It resulted in a search for new legal
solutions that could allow for a more complete execution of the
testator’s will, and that could allow the testator for a direct
transfer of specific assets of his property to separate persons

When discussing the shape of Polish succession law, some also
pointed out the necessity of determining a proper scope of
dispositions administering the property in the event of death,
taking into consideration that any and all legislative solutions
should take into account not only real social needs but also
comply with principal rules of succession law. The doctrine
many times demonstrated the opinion that the principle of
testamentary freedom had not been properly enforced, and that
the principle of universal succession had not guaranteed a
suitable degree of execution of the testator’s will. The difficulty
in showing the real intent of the testator resulted from the lack of
proper legal instruments that would allow the testator to
handover specific assets of the estate to specific persons. Within
the course of polemics extending over many years not only in
law magazines but also in legislative circles, two solutions had
been crystalized, namely a donation mortis causa and a
specific/registered bequest (legacy)

. Finally, on 23 October

2011, the institution of specific bequest was introduced under
Act of 18 March 2011 amending the Polish Civil Code and
certain other laws.

Enriching succession law with the institution of specific bequest
has been considered by the doctrine to be a revolution reaching
much deeper than the previous change in succession law made in
2008

. The specific bequest operating in Polish succession law

offers the testator an option of administering his property in the
event of death with an effect on real rights

. It is a testamentary

disposition whereby the testator transfers a specific property
item to a specific person

. The opening of the succession is

crucial since it is the time when the ownership right passes ex
lege to the beneficiary of the specific bequest. At the time of the
testator’s death, the object of the specific bequest does not
become a part of the estate – it becomes the property of the
beneficiary of the specific bequest. The institution of specific
bequest has nature of singular succession, by which it constitutes
a departure from the principle of universal succession.

2

Object of specific bequest. Introductory remarks

One of the key issues related to the institution of specific bequest
is the understanding of its object.

W. Zankl, Erbrecht, Wien 2008, p.75.

T. Mróz, O potrzebie i kierunkach zmian przepisów prawa spadkowego

, Przegląd

Sądowy 2008, no. 1, p. 81 and next.

Persons objecting to the introduction of specific bequest into the Polish legal system

included: J. Gwiazdomorski,

Dziedziczenie czy następstwo szczególne? (przyczynek do

dyskusji nad art. 103 prawa spadkowego)

, Przegląd Notarialny 1950, no. 3-4, p. 224-

225; S. Wójcik, F. Zoll [in:] System Prawa Prywatnego, t.10, (ed.) B. Kordasiewicz,
Warszawa 2009, p. 376, among others: J. Górecki, Zapis windykacyjny – uwagi de
lege ferenda [in:] Rozprawy z prawa prywatnego, prawa o notariacie i prawa
europejskiego ofiarowane Panu Rejentowi Romualdowi Sztykowi, (ed.) E. Drozd, A.

Oleszko, M. Pazdan, Kluczbork 2007, p. 129 and next; W. Żukowski, Projektowane
wprowadzenie zapisu windykacyjnego do polskiego prawa spadkowego, KPP 2010,
no. 4, p. 1041.

Introduced amendments concerned statutory succession.

A. Makowiec, Zapis windykacyjny w prawie polskim,

Dokonania Młodych

Naukowców, no. 4, Kraków 2014, pp. 683 – 688.

A. Makowiec,

Rozważania na temat zapisu windykacyjnego i wprowadzenia do

polskiego systemu prawnego darowizny na wypadek śmierci, Przegląd Prawno-
Ekonomiczny, no. 26, p. 44 and next.

- page 43 -