The Foreign legatum per vindicationem and its Effects in German Territory – A Test for Fundamental Questions of Both Substantive and Private International Law ollisionsrechtliche Behandlung dinglich wirkender Vermächtnisse Ein Prüfstein für G

Regardless of its long tradition in Roman Law and the ius commune, the legatum per vindicationem, i.e. the legacy that transfers the ownership of an object directly from the testator to the legatee, was abolished in German law at the end of the 19th century with the creation of the German Civil Code (BGB). Ever since then a legatee acquires only a personal right against the heir for the transfer of title. In the context of German private international law, there is a long-standing debate on whether a legatum per vindicationem created under foreign law (e.g. that of France or Italy) has to be recognised in case the object is located in Germany. The courts and most authors in legal literature have denied recognition, arguing that it would violate fundamental principles of the German law of property. As a result, the legatum per vindicationem is adapted to a legacy with obligatory effects. The problem sketched out appears to be of limited importance at first sight, but in fact touches on a number of fundamental issues of private law. One is the conflict between the lex hereditatis and the lex rei sitae, which comes to the fore also in a number of other constellations; another relevant aspect is the relationship between universal and singular succession upon death, and yet another is the principle of Numerus clausus in property law. The article shows that transfer of ownership upon death is a core issue of succession law and therefore has to be governed by the lex hereditatis. The lex rei sitae must only be taken into account in a second step, in order to see whether the prescribed solution can be reconciled with its fundamental principles of general property law. These however need to be interpreted strictly and must not be confused with lex rei sitae's own principles of succession law. This method of delimiting the law applicable to the succession from the law where the estate is located is also to be followed under the EU Regulation on Succession Law in order to ensure that the policy decisions of the lex hereditatis will be respected as far as possible, instead of being overturned under the guise of alleged fundamental principles of property law. For German law this means that a foreign legatum per vindicationem will have to be recognised under the Regulation in the same way as it should already be accepted at present under autonomous law.