- What is heritage theory?
- The classical or heritage-personality theory
- The modern or heritage-affectation theory
We explain what the theory of heritage in law is, how the classical theory differs from the modern one and its founders.
What is heritage theory?
The theory of heritage is, in the field of legal sciences and the law, the discipline that studies what the heritage, their types and what are the patrimonial relationships. She is the one in charge of finding a concept functional, a useful typology and a set of tools that serve to think about the rules that govern heritage.
Fundamentally, there are two different theories about heritage: the classical or heritage-personality theory, and the modern or heritage-affectation theory. Both are distinguished, above all, by their conceptual approach to heritage, that is, their way of conceiving and defining it.
The classical or heritage-personality theory
Although the concept of heritage comes from the Antiquity Roman, associated with paternal assets and rights that were transmitted to offspring, the first theory in this regard dates back to the nineteenth century, specifically to the work of the French jurists Charles Aubry (1803-1883) and Charles Rau (1803-1877) from 1873.
For them, members of the school of French exegesis, heritage should be understood as an abstract set of assets, rights, obligations and burdens, both present and future, belonging to the same person and endowed with "legal universality".
These elements are held together with the person by her own will, so each person has her own heritage, which is "an emanation of her personality" (hence the second name of this theory).For the same reason, the patrimony is indivisible, unique and inalienable during the life of the person, since alienating the patrimony would be like alienating his or her personality.
Only the death of the person can legitimize the transfer of the estate to third parties (their descendants), since in reality it is the extinction of the estate of the deceased and the creation, once again, of a single, indivisible and inalienable estate for the heir. .
This classic theory (also called subjective) has been criticized for its difficult application to real life, especially with regard to the distinction between wealth and the ability to acquire future goods. The latter would imply that all people necessarily have a heritage, since they have the future possibility of acquiring said goods or resources, understood as an "tacit pledge" by Aubry and Rau.
On the other hand, this idea of heritage is particularly problematic when thinking about business or organizational heritage, since only personalities have heritage. The authors, for the rest of the cases, speak of a "Measure of goods", without explaining exactly what they mean by it.
The modern or heritage-affectation theory
Also known as the objectivist theory, finalist theory or German theory, it was proposed by the German jurists Alois von Brinz (1820-1887) and Ernst Immanuel Bekker (1785-1871), who opposed the considerations of the French lawyer Marcel Planiol ( 1853-1931) regarding the collective heritage. This theory was later picked up by the German Civil Code in 1900 and that of Switzerland in 1907.
The objectivist theory aspires to a departure from the classical theory of heritage, since it proposes the idea that heritage does not necessarily require a person to exist.
On the contrary, it affirms that heritage can perfectly exist without an owner, since the very idea of heritage is sustained based on the affectation it makes of the assets that make up the heritage, that is, that what is central in heritage is not the person but the objects that compose it. Hence the name of this theory.
According to Brinz and Bekker, the affectation of heritage is what allows the elements that make it up to be held together, without there being an explicit owner. They called this “assignment heritage” (Zwechvermogen) or “objective assets”.
For the authors, in this way, heritage should be understood as the set of legal relationships that affect goods, actions and rights individualized and determined in time and place, and that are objectively intended for an economic and legal purpose. In the latter, the objectivist theory also moves away from legal universality as understood by the classical model.
Finally, according to the objectivist view, it is impossible for heritage to exist without assets, and the future option of owning them at all is not taken into account. Thus, it is possible that an estate does not belong to someone, but to something, which makes things easier when talking about business assets.