Observations on the Legal Sources The archives are not very helpful in terms of content Almost no arguments and motivation except for some of the earliest records Very little litigation over succession ID: 752454
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Slide1
By Ilya A. Kotlyar ©Slide2
I. Observations on the Legal Sources.Slide3
Observations on the Legal Sources.The archives are not very helpful in terms of content: Almost no arguments and motivation (except for some of the earliest records);
Very little litigation over succession.
However, the records are helpful in establishing the form of last wills. Slide4
Observations on the Legal Sources.The archives are not very helpful in terms of content: Almost no arguments and motivation (except for some of the earliest records);
Very little litigation over succession.
However, the records are helpful in establishing the form of last wills.
2. Reading several reports of the same case is VERY useful. Slide5
II. Observations on Legal Doctrine.Slide6
II. Observations on Legal Doctrine.1. Scots law of the 17th century, in terms of terminology and concepts, looked very similar to the Civilian systems, especially the Roman Dutch law.Common law,
decreet
, interlocutor,
adminicles
, interest,
annualrent
(
annuus
reditus
),
procurat
ory
,
registration, instrument,
compt
-book, clause
resolutive
,
codicil, executor-dative… Slide7
II. Observations on Legal Doctrine.Scots law of the 17th century, in terms of terminology and concepts, looked very similar to the Civilian systems, especially the Roman Dutch law.
The system of heritable succession in Scotland was much more Civilian than real estate succession in England (
e.g., ‘service of heir’ as ‘
aditio
hereditatis
’
). However, it was still very different from a pure Civilian system (
no transmission, no renunciation of estate
). Slide8
II. Observations on Legal Doctrine.Scots law of the 17th century, in terms of terminology and concepts, looked very similar to the Civilian systems, especially the Roman Dutch law.
The system of heritable succession in Scotland was much more Civilian than real estate succession in England (
e.g., ‘service of heir’ as ‘
aditio
hereditatis
’
). However, it was still very different from a pure Civilian system (
no transmission, no renunciation of estate
).
The system of
moveable
succession through an executor was strongly influenced by Canon law, both before and after the Reformation. For example, the rules on transmission of the office of executor. Even the terminology was the same
(
“res
integra
”)
. Slide9
II. Observations on Legal Doctrine.Scots law of the 17th century, in terms of terminology and concepts, looked very similar to the Civilian systems, especially the Roman Dutch law.
The system of heritable succession in Scotland was much more Civilian than real estate succession in England (
e.g., ‘service of heir’ as ‘
aditio
hereditatis
’
). However, it was still very different from a pure Civilian system (
no transmission, no renunciation of estate
).
The system
of
moveable
succession through an executor was strongly influenced by Canon law, both before and after the Reformation. For example, the rules on transmission of the office of executor. Even the terminology was the same
(
“res
integra
”)
.
Some rules of Civil law exerted influence on Scots
law in later times, the 18
th
century (
100 pounds rule, soldier’s will, ‘
suus
heres
’
). Slide10
III. Socio-Legal Observations.Slide11
III. Socio-Legal Observations.Everyone preferred to use will-substitutes, even in movable succession (dispositions, settlements, bonds of provision, gifts mortis causa). The judges either did not or could not resist this.Slide12
III. Socio-Legal Observations.Everyone preferred to use will-substitutes, even in movable succession (dispositions, settlements, bonds of provision, gifts mortis causa). The judges either did not or could not resist this.
Succession provisions in marriage contracts were especially wide spread; litigation between parents and children was routine.Slide13
III. Socio-Legal Observations.Everyone preferred to use will-substitutes, even in movable succession (dispositions, settlements, bonds of provision, gifts mortis causa). The judges either did not or could not resist this.
Succession provisions in marriage contracts were especially wide spread; litigation between parents and children was routine.
‘Kindly tenancies’ were routinely disponed and settled by last wills before the 1600s. Afterwards, however, they were recognized heritable property (like all leases) and ceased being “
bequestable
”.Slide14
III. Socio-Legal Observations.Everyone preferred to use will-substitutes, even in movable succession (dispositions, settlements, bonds of provision, gifts mortis causa). The judges either did not or could not resist this.
Succession provisions in marriage contracts were especially wide spread; litigation between parents and children was routine.
‘Kindly tenancies’ were routinely disponed and settled by last wills before the 1600s. Afterwards, however, they were recognized heritable property (like all leases) and ceased being “
bequestable
”.
Legislation on succession in the 17
th
century (1621, 1661, 1695) was largely aimed at avoiding fraud to creditors by the heirs. Slide15
III. Socio-Legal Observations.Everyone preferred to use will-substitutes, even in movable succession (dispositions, settlements, bonds of provision, gifts mortis causa). The judges either did not or could not resist this.
Succession provisions in marriage contracts were especially wide spread; litigation between parents and children was routine.
‘Kindly tenancies’ were routinely disponed and settled by last wills before the 1600s. Afterwards, however, they were recognized heritable property (like all leases) and ceased being “
bequestable
”.
Legislation on succession in the 17
th
century (1621, 1661, 1695) was largely aimed at avoiding fraud to creditors by the heirs.
By the 18
th
century, converting estate into heritable property to facilitate disposability was a routine practice. Classification of certain bonds as heritable made this easy.Slide16
III. Socio-Legal Observations.Everyone preferred to use will-substitutes, even in movable succession (dispositions, settlements, bonds of provision, gifts mortis causa). The judges either did not or could not resist this.
Succession provisions in marriage contracts were especially wide spread; litigation between parents and children was routine.
‘Kindly tenancies’ were routinely disponed and settled by last wills before the 1600s. Afterwards, however, they were recognized heritable property (like all leases) and ceased being “
bequestable
”.
Legislation on succession in the 17
th
century (1621, 1661, 1695) was largely aimed at avoiding fraud to creditors by the heirs.
By the 18
th
century, converting estate into heritable property to facilitate disposability was a routine practice. Classification of certain bonds as heritable made this easy.
Legislation of 1690, 1693, 1695, 1700 sharply restricted the powers of commissary courts. As a consequence, the standard executorial procedure diminished in importance in the 18
th
century (
incomplete inventories, no oath
). The 19
th
century legislation aimed at correcting this.