A.6. Pseudo-contractual law with a touch of contractual succession law

It appeared from no. 3.3.5 of chapter IV that the new succession law offers enough possibilities to leave the surviving partner well provided for. With pseudo-succession law, for instance a survivorship clause ‘by gratuitous title’ in the event of death, the surviving partner has certainty about the acquisition of certain goods. This, however, does not suffice, if there are forced heirs lurking about. Indeed, the pseudo-specific beneficiary/partner does not know whether a forced heir, shortly after the death has occurred, can claim a recovery result that might be chargeable to the pseudo-specific beneficiary. It is paramount for the survivor to have certainty regarding the non exigibility clause.The mere fact that the agreement is not revocable does not suffice. I refer to no. 1.7.1 of chapter III. For criticism on the transitional law in this respect I refer to no. 1.15 of chapter III. This requires contractual succession law, which requires an amendment. It must be possible to use article 4:82 DCC in a contractual manner. The legislator already provided, with article 129 Transitional law for the New DCC, for old contracts, that the non exigibility clause is read into the contract so that it does not seem to be an insurmountable operation and/or a wish that is impossible to fulfil.

Should the legislator doubt whether the notarial profession will be able to prevent the non-exigibility clause to be used in an over-simplified and ill-considered manner in agreements mortis causa, then it is up to the legislator to provide that, for example, the clause, or at any rate the binding aspect thereof, is cancelled in a mandatory way, if certain circumstances arise. Starting divorce proceedings is one of the possible examples thereof.

Although this is not my primary preference, the legislator could also provide that, if the legislator deems this binding to be too far-reaching, that the non-exigibility clause in the contract can always be ‘retracted’ by a notarial deed to be signified (a copy) to the other. At any rate, this prevents the suvivor’s trust being damaged.

Incidentally, this breach of trust does not appear to happen all that often. I refer to table 17 in this regard. It is an issue nonetheless. Furthermore, in order to avoid an embarrassing situation, the person revoking the testament will turn to another civil-law notary, unaware of the previous testament.

Besides the contractual possibilities with article 4:82 DCC, an amendment of article 4:74 DCC is necessary. I refer to no. 3.3.3 of chapter IV. In the first place it should be allowed to establish in the last will and testament that payment of a sum as in article 4:122 DCC in the event of recovery of a pseudo-specific legacy (article 4:122 DCC) occurs in instalments if and to the extent that without this payment in instalments the continuation of the profession or company would be seriously hampered. This should be tested by the judge, if need be, as also applies to article 4:74 DCC. At present, reasonability and fairness have to be relied upon.

Moreover, the entrepreneur who is being succeeded, must have the possibility of committing himself in a contractual manner towards his successor as regards the payment of forced heirs of the sum meant in article 4:122 DCC in instalments. It goes without saying that this clause must have effect towards forced heirs.

To give pseudo-succession law a chance, it would be an improvement if pseudo-succession law acquisitions, also those that are not a gift, and certainly the pseudo-specific legacies of article 4:126 DCC, could be administered or if a clause could be added as meant in article 1:94 DCC. Indeed, a specific legacy against contribution can also be subject of a clause or administration.