The article analyses, in a comparative perspective, the phenomenon of the evolution of the protection of surviving spouse’s inheritance rights in France and Lithuania, the two legal systems historically having some points of interaction. The protection of the surviving spouse is one of the major preoccupations of married couples of today, the couple occupying a central role within the contemporary family. Comparative analysis reveals certain points of convergence between these two legal systems inasmuch the surviving spouse is considered by both (...) legislations as an heir ab intestat and whose protection over the years has been considerably strengthened. The surviving spouse is called to inherit alongside with the heirs of the first or second order and is entitled to the proportions in assets that have not ceased to increase. Lithuanian law seems to have been innovative at an earlier stage than French law, as it is only in the beginning of the 21st century that significant reforms were carried out in this area of law in France. Analysis has also revealed apparent differences in the scope of protection of the surviving spouse, both in regards to the protection provided by law (statutory protection), as well as protection organised by the will of the spouses (voluntary protection). In some respects the statutory protection is more extensive in France (for example, complementary statutory rights of the spouse in regards to the dwelling place or the quality of héritier réservataire) and the instruments of this protection seem to be more varied (for example, the possibility for the spouses to organise their matrimonial regime by inserting specific clauses into the nuptial contract, mechanisms outside the nuptial contracts, such as donations, wills or life insurance contracts). However, this protection might appear to be more extensive under Lithuanian law as far as the voluntary protection is concerned taking into account the introduction, by the new Lithuanian Civil Code of 2000, of the joint will of spouses under which the whole property of the deceased spouse shall be inherited by the surviving spouse (except the mandatory share of succession). The article raises some doubts as to the desirability or even feasibility of aligning the two models of protection given the fact that each of the two countries has its own history and traditions. Nevertheless, a proposition resurges from the analysis in regard to the possible improvement of the protection of the rights to the dwelling place of the surviving spouse under Lithuanian law. Some elements from the existing French model could be transposed given that the dwelling place is an essential family element providing some stability for the surviving spouse. (shrink)

The article deals with the issue of initial impossibility of performance of an obligation and the influence of such impossibility of performance on the validity of the legal transaction that establishes such an obligation. The legal doctrine convincingly demonstrates that for Roman lawyers the rule Impossitionbilium nulla obligatio est merely meant that nobody can be obliged to perform something that cannot be performed; however, it did not necessarily follow that a contract establishing such an obligation was void. Modern civil codifications (...) overlook another significant feature of the Roman law – the uncontested application of the principle Impossibilium nulla obligatio est only in case of stipulatio, whereas modern contract law has its origins in the Roman law of consensual contracts. (shrink)

The article outlines some aspects of the civil law in Lithuania, an Eastern European country, which underwent an essential transformation in the last decades. The author outlines the development of the Lithuanian civil law from the oldest written sources up to the adoption of the new Civil Code of the Republic of Lithuania in 2000. The author is critical about the denomination of Lithuania as a “new” state and draws attention to the history of Lithuanian law, which spans hundreds of (...) years. The article emphasizes the continuity of the legal tradition and the heterogeneity of law – the coexisting of several legal systems in the territory of one state. The article discusses the role of Roman Law in the legal system of Lithuania. Even though Roman Law has never been applied in Lithuania, the author argues that it nevertheless had an indirect influence on Lithuanian private law. Roman Law and Canonical Law were among the main sources while drafting the three codified acts, the Statutes of Lithuania, in 1529, 1566 and 1588. The knowledge of Roman Law acquired by lawyers at universities in other European countries was transmitted through drafting of the laws and the jurisdictional and administrative practices. (shrink)

The article deals with a specific type of contract that an heir is entitled to conclude—the transfer (or sale) of the rights of succession. As a starting point, the author of the article analyses the formation and further development of the transfer of succession as a whole (hereditas) in the Roman law. Two major proceedings used by Roman lawyers for the purposes of the alienation of hereditas are analysed, one being in iure cessio hereditatis and the second taking the form (...) of emptio venditi hereditatis. The interrelations between this kind of transfer and the recognition of the possibility of the assignment of rights (cessio) under the Roman law are pointed out. The author traces the impact of the principles developed by the Roman law on the legal regulation of the contract in question in modern codification by drawing attention to the French Civil Code and the Civil Code of Quebec. The author states that the legal rules on the sale of the rights of succession contained in the new Lithuanian Civil Code adopted in 2000 have been transposed, to a large extent, from the two abovementioned codes. After analysing the object of this contract, the author concludes that it is the sale of a certain incorporeal property (res incorporales) that is meant by the terms ‘succession’ (hereditas) or the ‘rights of succession’. This feature distinguishes the analysed contract from the ordinary contracts that an heir may conclude for the purposes of the alienation of specific objects making part of the succession. (shrink)

Contract theories may be a useful analytical tool for understanding and explaining contract, as well as for facilitating orientation in a complex and often fragmented legal regulation. The article presents main understandings of contract in various European jurisdictions: contract as free assumption of obligation, contract as a bargain based on the idea of consideration, contract as free assumption of obligation based on sufficient causa. The article inquires as to how universal those theories are, what are the recent trends in the (...) development of European contract law, what philosophy of contract underlies the soft law instruments, such as UNIDROIT Principles of International Commercial Contracts or Principles of European Contract Law (PECL), what is the stance of the Draft Common Frame of Reference (DCFR) in regard to the concept of contract. Under the law of Lithuania the definition of contract comprises elements found in several European countries, but it is argued that the new Lithuanian Civil Code has not received any model in its pure form. However it seems that the prevailing view understands contract as juridical act, as freely assumed obligation and meeting of parties’ intentions with the aim to create legal effects. Following the position of soft law instruments in regard to the elements of the contract, Lithuanian law (at least in its statutory form) does not have any explicit additional requirements, such as consideration or causa. (shrink)