SOBRE LA NOCIÓN DE HERENCIA: PROPUESTA Y REVISIÓN DE SU CONCEPTO A LA LUZ DE LA DOCTRINA Y DE LA JURISPRUDENCIA.

Abstract

It is no easy task to define inheritance, and there are several reasons why. First, the word is used to mean many things. In the objective sense, it refers to the different relationships that form part of inheriting and are transferred to an heir. However, to describe this notion would fail to provide a general notion of inheritance. In the subjective sense, inheritance alludes to the position occupied by the heir. In addition to the vain objective notion and the subjective notion, Castán gives us the organic or institutional notion, which regards inheritance in its dynamic aspect as the passage from the decedent to the heir, i.e., succession. Nor must the dual influence of Romanic and Germanic law on Spanish succession law be overlooked. Although on this point the Spanish Civil Code seems to have followed the Roman system of successio in iusdefuncti, there are authors and an estimable number of Supreme Court rulings that see in Spanish law a true reflection of the Germanic system of adquisitio per universitatem, in which case the person who inherits acquires the assets of the decedent, with the burden of the decedent's debts, yet without stepping into the legal position of the deceased principal. At all events, these are but limited views of the same phenomenon and can be woven together into a single picture: a picture of the legal relationships that form part of inheritance, its contents and consequently the legal position of the heir. Altogether, the contents of inheritance and the heir's legal position will both depend on the Roman or Germanic system applicable in the actual case at hand. So, the question to address is this: Do the decedent's debts and obligations form part of the inheritance, and therefore are they assumed by the heir (the Roman system); or are they instead only to be deducted from the as sets, leaving the heir to receive whatever assets are left after the decedent's debts have been paid (the Germanic system)? These issues are looked at from the standpoint of established legal thought and case law. The different viewpoints are considered, and a definition of inheritance is proposed.