> The hereditary reserve in

Romania,
Mircea Dan Bob
Senior lecturer at the Faculty of Law of the Babe -Bolai University in ClujNapoca

 The hereditary reserve is the right of intestate succession granted under the law to certain
categories of heirs despite the contrary wishes of the deceased (Matei Cantacuzino) [1]
The second anniversary of the new Romanian Civil Code on 1st October 2013 seems an appropriate
time to comment on one of the most important aspects of its approach to succession: the reserved
portion of the estate. A wave of individualism seems to be eroding what had become a classic
principle of continental civil law, and the new codes in force in Europe have reduced both the circle of
people entitled to their legal share and their respective rights.
Everything began in Roman law with the lex Falcidia (Falcidian Law, 40 BC), which gave official
recognition to a practice of the centumvirs court dating back to the third century BC: a testator may
not disregard his next of kin when disposing of his assets. But, as Henri Capitant showed in his
doctoral thesis, the aim of this law was not to limit testamentary freedom; on the contrary, its
intention was to retain a share of the assets for the testamentary heir (usually a close blood relative),
so that he had a vested interest in accepting the testamentary succession and that his waiver of it did
not cause the other legacies to lapse. [2] The Falcidian Law fell into disfavour with the passage of
time, but through a corruption of its initial purpose, it gave rise to a condensed limitation in the
reserved portion: the freedom to dispose of ones property gratuitously was accompanied by an
assumption of family affection, being limited to one disposable portion.
The old Romanian law was based on this law in certain respects. The modern Civil Code of 1864,
which came into force on 1st December 1865, adopted the French model of 1804; a law on the
inheritance rights of the surviving spouse was added in 1944. Both of these were included in the new
Romanian Civil Code in 2011. [3]
Our analysis aims to identify how the reserved portion of an estate has been understood in Romanian
law and how it may develop in the future. Our starting point will be the Code of 1864, as under the
transitional provisions (article 91 of Law no. 71 of 2011 implementing and modifying the Civil Code),
it has continued to apply to successions that were opened before 1st October 2011. Current
estimates suggest that it will continue to be applied for at least another two or three decades.
Legislative changes in the reserve in Romania

1. The Romanian Civil Code of 1864 (Civil Code) copied some of the wording of the Napoleonic code in
its chapter On the portion of disposable assets and reduction . Articles 841 and 843 set variable
limits on the deceaseds capacity to make liberalities, depending on the number and status of the
forced heirs:

Art. 841 Liberalities, made either by an inter vivos deed, or by will, may not exceed half of the party
disposings estate, if at his death he leaves only one legitimate child; a third, if he leaves two children;
a quarter, if he leaves three or more.
Art. 843 Liberalities, either by an inter vivos deed, or by will, may not exceed half the party
disposings estate, if, there being no children, the deceased leaves a father or [sic] a mother, or three
quarters, if he leaves only one of his parents.
Article 841was a faithful translation of Art. 913 of the Napoleonic Code (NC), in that Art. 843 reduced
the circle of ascendants entitled to their legal share. On the basis of these two texts, Romanian
lawyers used a simple process of deduction to establish the identity of the forced heirs (privileged
descendants or ascendants) and the extent of their respective rights.
This adoption of the Napoleonic provisions almost in their entirety led to the surviving spouse being

granted only very limited rights. The French code had given precedence to keeping property in the
family through blood ties a family in which the spouse was only an outsider relegated to last place
in the devolution of the estate. A partnership based on emotion and property, no matter how strong,
had no corollary other than a hypothetical right to inherit in the absence of any blood relative up to
the twelfth degree (Art. 755 para. 1 of the NC = Art. 676 of the Civil Code, Art. 767 of the NC =
Art. 679 of the Civil Code) [4], a right to receive payment for the year of mourning (Art. 1570 para. 2
of the NC = Art. 1279 of the Civil Code) and rights of usufruct for the impoverished widow (Art. 684 of
the Civil Code). In so doing the legislator departed from our customary practice and written law,
whereby traditionally the survivor was an heir in competition with the descendants. [5] But the
emotional support and financial contribution of the spouse [6] became more and more significant
realities from the end of the 19th century, when in sociological terms the nuclear family (the
father, mother and their children) replaced the stem family (based on blood relatives living together
and supporting each other) [7] and the exclusivist concept of cognate succession was gradually
replaced by that of household succession. [8]
The French Civil Code of 1804 disregarded the surviving spouse for several reasons. In the late 18th
century, French society was mainly agrarian and kinship by blood was the main criterion by which a
human community was identified. [9] In this context, the spouse was an intruder into a successive
order understood as enabling property to be preserved within families of blood relatives. In addition,
life expectancy being forty years, succession as a way of acquiring property (Art. 711 of the NC =
Art. 644 of the Civil Code) was more important for the descendants at that time (who might hope to
inherit around the age of 15) than it is today. [10] The industrialisation of European countries led to a
rural exodus, which generally contributed to the narrowing of the family unit around the couple and
the children; and this substantially increased the emotional and financial significance of the spouses
role. In 1920, 77% of the Romanian population lived in rural areas, [11] whereas today only 46%
[12] do so. So the end of 19th century and the first half of the 20th saw the gradual decline of the
stem family and the advent of the nuclear family. In a parallel development, life expectancy gradually
increased in the 20th century: it was 42 years inRomania between 1920 and 1932, [13] 63.2 in 1956
[14] and 77.5 for women against 70.1 for men according to figures from the National Institute of
Statistics for 2011. [15] Therefore succession a way of acquiring property (Art. 644 of the Civil Code
of 1864 = Art. 557 para. 1 of the New Civil Code (NCC)) is not of the same interest for the
descendants as for the spouse who has lived with the deceased for a long time.
All these sociological changes, as well as the critiques formulated by legal commentators to oppose
the hasty abandonment of the old Romanian law in this field, supported the case for improving the
surviving spouses succession rights. This was the purpose of the reform of the law of succession on
10 June 1944, [16] as a result of which the husband/wife became a forced heir:
Art. 1 The surviving spouse inherits in the succession of his or her deceased spouse:
a) in competition with the legitimate children who have been acknowledged, or with some of them
only, or with their descendants, he or she inherits one quarter;
b) in competition with the father and mother of the deceased, or with one of them, and in both cases
with the brothers and sisters of the deceased spouse and their descendants, or with some of them
only, he or she inherits one third;
c) in competition with the father and mother of the deceased, or with one of them only, or with his or
her brothers and sisters and their descendants only, or with some of them only, he or she inherits
half;
d) in competition with the other ascendants or collaterals up to the fourth degree, he or she inherits
three quarters;
e) in the absence of the above-mentioned relatives, the surviving spouse inherits all the assets.

Art. 2 Liberalities that the predeceased spouse agreed to make may not exceed half of the rights
provided for in Art. 1 to benefit the surviving spouse.
Modelled on the German Civil Code, the Brgerliches Gesetzbuch (BGB), (Art. 1931-1932), we will see
later how this reform was extended in 2009, when Law no. 319/1944 was incorporated into the new
code. Art. 1088 of the NCC established as a single standard the method introduced in 1944 to
calculate the spouses reserve and determine the rights of each forced heir.
The difficulties raised by the former Romanian Civil Code

Since the 19th century, the actual method used to calculate the reserve has raised questions, which
became common to both French and Romanian law, given that their legislation is almost identical. The
number of difficulties increased still further when the surviving spouse was promoted to forced heir in
1944.
2. The calculation of the reserve in the event that certain forced heirs renounce their rights in the
succession or are deemed unworthy has generated a controversy which still seems unresolved. [17]
According to certain French judgments dating from the first half of the 19th century, a party entitled
to his legal share of the estate who had renounced his right to succeed had the option of keeping a
gift from the deceased that was subject to collation, by imputing it to the reserve as well as the
disposable portion. The Court of Cassation broke with this practice in a notable decision [18] and its
solution was followed some years later by the Court of Cassation inBucharest: [19] by renouncing his
right, the donee retrospectively becomes an outsider to the succession and must be content with
imputing his gift (now considered to be a preciput) to the disposable portion. [20]
In other cases, questions have been asked about the method of calculating the reserve when one of
the forced heirs entitled to his legal share has renounced his rights in the succession. The answer
traditionally given by the French courts has been that all the forced heirs who are still living when the
succession is opened will be taken into account; the fact that one or more of them has renounced
their right is of little importance. [21] French [22] and Romanian authors, as well as Romanian case
law [23] have criticised this solution. They have argued that the term children left , as it is used in
Art. 913 of the NC / 841 of the Civil Code, only includes those who come to the succession, and not
those who have renounced their rights in it (Art. 785 of the NC / 696 of the Civil Code = Art. 1121
para. 1 of the NCC). [24] In other words, the existence of children left by the deceased is a legal
concept and not merely a physical fact. The direction of French practice has been supported by the
influential voice of Mihail Eliescu, [25] followed today by Professor Popa.
In our view, the debate on the law of succession in Romania has been artificial from the outset. It was
not the interpretation of the law that justified the French judges solution in the second scenario, but
the strong tradition of interpretation by the courts under the pre-revolutionary law, a tradition
favourable to the reserve. [26] Romanian judges and authors have therefore revived in their own
name a controversy which did not concern them at all [27]. Professor Matei Cantacuzinos analysis
makes this clear:
The right to the reserve is only held by relatives called to the succession in accordance with the
legal order and who, being entitled to inherit, do not renounce that right. This is what emerges from
the Romanian provisions (Art. 844, 848, 849, 889, 893, 895), which all use the word heirs. [28] This
conclusion becomes still more compelling if one considers that the legislator allows the reserved
estate assets to devolve according to the rules on intestate transmission to the relatives called to the
succession in accordance with the law, and solely to those who have accepted the succession. This
principle was definitively approved by a judgment of the French Court of Cassation on 27 November
1863 (Romanian Court of Cassation, 18 December 1876) which corrected a previous erroneous
interpretation, according to which a forced heir called to inherit who renounces his reserved portion

could have added the disposable portion to his share of the reserve, in order to keep the gift which
had been received without exemption from collation. As this solution runs counter to the wording of
Art. 752 of the Civil Code (845 of the NC) and the principle on which the French reserve was based, it
has since been definitively abandoned; it is generally accepted today that, either by bringing legal
proceedings or as an exception, a forced heir who is called to inherit may not claim his share of the
reserve unless he comes to the succession.
[] I also believe that we must reject the solution adopted in France, according to which
descendants who renounce their inheritance or are deemed unworthy must be taken into account
when the reserve is determined. The reserved hereditary estate will be calculated by taking into
account the number of people to whom it is transmitted; it cannot be calculated for three when it is
being transmitted to only two . [29]
The explanation by the professor from Ia i clarifies the problems, by setting aside a line of French
case law that was unknown in Romania, and by conforming strictly to the letter and the logic of the
Civil Code: a person who renounces his rights was never an heir, therefore he will not be eligible for a
share of the reserve. Giving their reasons in 1876, the Romanian judges made a fine analysis of the
comparative history of law as the basis of their solution, which their predecessors and some of their
successors have been unable to do. [30]
3. The calculation of the reserve of the surviving spouse has become a thorny issue in Romaniaover
the years. The extremely concise wording of the legal provisions has probably contributed to this
situation.
The solution upheld by the majority between 1944 and 1989 was to impute it to the disposable
portion in the predeceased spouses estate. [31] If we take as a working hypothesis a succession
accepted by son A, spouse E and a third party T appointed as universal legatee: child A receives his
reserve of 4/8 (1/2 of the whole estate) under Art. 841 of the Civil Code, spouse E, in accordance
with Art. 2, added to Art. 1 a) of Law no. 319/1944, receives his or her reserve of 1/8, returned to the
whole of the death estate, and the disposable portion goes to universal legatee T.
In 1989, Professor Francis Deak criticised this solution, [32] seeing it as an incorrect application of
Law no. 319. He pointed out that its first article gives the surviving spouse prior rights in the
succession of the other spouse ; which led him to the conclusion that his or her rights must be
imputed to the whole estate, with a corresponding reduction of the rights of the other competing
forced heirs. He then observed that the reserve is a share of the legal succession (pars hereditatis)
and that Art. 2 of the same law expressly refers to Art. 1. He therefore proposed calculating the
reserve of the surviving spouse in the same way: spouse E would receive 2/16 (1/8 of the whole),
son A would have to be content with 7/16 (1/2 of the remaining 14/16) and the legatee T would
receive the disposable portion of 7/16. The great majority of legal practitioners and theorists
immediately subscribed to this analysis according to which the granting of a reserve to the surviving
spouse would reduce proportionately the reserves of the descendants or the ascendants, as well as
the disposable portion. [33]
Nevertheless, dissenting voices were raised. Professor Safta-Romano of Ia i found no basis in law for
reducing the reserve of the other forced heirs by favouring that of the surviving spouse; the
proportionate shares of each should be respected without reducing any one of them. Safta-Romano
therefore returned to the calculation used by Eliescu: the reserve of the spouse will be imputed to the
disposable portion. [34]
Another author proposed a different solution in 2002, attempting to incorporate the reserve of the
surviving spouse in the total reserve as a collective whole. [35] He added together the spouses
reserve, determined in accordance with Art. 2 of Law no. 319 of 1944, and that established for the
children/ascendants by Articles 841/843 of the Civil Code. Then he divided the resulting total
between the forced heirs, in accordance with the rules on devolution by law instituted by Art. 1 of Law
no. 319 of 1944 and Art. 669-670 of the Civil Code (745-746 of the NC). The remainder represents the

disposable portion. In the previous example, the collective reserve would be 5/8 (1/8 for spouse E
plus 1/2 for son A). It is deemed to be part of the legal estate and would therefore be shared between
the forced heirs: E would receive 5/32 (1/4 of 5/8), whereas A would receive a reserve of 15/32 (3/4
of 5/8); the remaining 3/8 (1/1 less 5/8) going as the disposable portion to the universal legatee T.
This solution was unanimously rejected, because in 1944 the legislator created a specific type of
reserve for the surviving spouse, following a different logic from that of the Romanian Civil Code of
1864. [36] It has also been shown that a total reserve shared between the spouse and the other
traditional forced heirs is unnatural, as there is no legal correlation between the law of 1944 and the
Civil Code of 1864. The collective nature of the reserve, as conceived in the Civil Code, was based on
the need to set up the reserve according to the number of forced heirs actually called to the
succession. But these forced heirs are still part of the same order and will receive the reserve in equal
shares. The Civil Code had a unitary vision. On the other hand, the provisions of 1944 cannot be
integrated into, but only superimposed on those of the Civil Code. [37]
One last solution [38] was proposed by Eliescu. On a simple and pragmatic reading of the provisions
of 1944, we see how the legislator makes a place for the spouse at the succession table , but in no
way does it follow from Art. 2 that he intended to reduce the reserves of the blood relatives. The
spouse was admitted into the circle of forced heirs in 1944, but the legislator simply wanted to limit
the testamentary freedom of the deceased, not to reduce the reserves of the descendants and
ascendants.
4. In our view the right solution should start from a simple question: what was the intention of the
Romanian legislator in 1944? The concisely worded Art. 2 does not assist us greatly on this point.
[39] It is therefore better to go straight to the source and examine the statement of reasons in the
Report submitted by the Minister of Justice Ion Marinescu on the law in question. [40] This reads as
follows:
In order to guarantee the rights of the surviving spouse, we have allocated a reserve, to the value
of half the estate, to this individual, leaving the other spouse the right to dispose of the remainder by
liberalities and thus to put right any possible injustices.
The provisions of articles 841 et seq. of the Civil Code remain in force with respect to the rights of
forced heirs, but the disposable portion of the estate, which the spouse can dispose of, has been
changed, being reduced by the share of the estate recognised as belonging to the surviving spouse .
[41]
The last assertion vindicates Eliescu and shows the extent to which Safta-Romano in 1995
andMatre Popa in 2008 had correctly identified the solution. In 1944, the Romanian legislator wanted
to strengthen the surviving spouses position by including him or her in the circle of forced heirs. With
the rise of the nuclear family, the blood family has retreated, but this retreat has not been great
enough to affect the traditional reserve of descendants and ascendants.
Why has this report remained unknown until recently? We have examined the literature and case-law
for the period 1944-1989. The Report is mentioned by some authors [42] and its method of
calculation is consistently adhered to in legal theory [43] and in case law: [44] it was therefore
known to its contemporaries. Its instructions were followed, but there are few direct references to it
after 1945. Censorship for political reasons seems to us a plausible explanation for this. In 1989,
Professor Deak was probably not aware of the Report. Faced with the lack of clarity of the text
(Art. 2), he tried to interpret it as coherently as possible. His authority contributed to the widespread
acceptance of his solution, but it diverges from the legislators intention. Finally, in 2002 Professor
Chiric took Deaks erroneous interpretation as his starting point, staying on the deceptive surface
of the problems.
In conclusion , the ways proposed by the last two authors to calculate the reserve of the surviving
spouse are incorrect ab initio. The letter of the law of 1944 was not sufficiently clear, but the

intentions of the legislator emerged from the statement of reasons: the reserve of the surviving
spouse only reduces what remains of the disposable portion after the share of the forced heirs, with
whom he or she is in competition, has been determined.

Eliescu was therefore right; which does not mean that all the deficiencies have already been
remedied.
5. The resolution of the difficulties is probably the most appropriate heading for this section. The
solutions proposed after 1989 for the problem in question raise aspects whose importance cannot be
ignored.
5.1. Deak wanted to reform the method of calculation because he believed that unacceptable
consequences stemmed from Eliescus solution. His starting point was the practical hypothesis where
the spouse is in competition with the father and mother and with the deceaseds sister who was
appointed the universal legatee. According to his estimates, the system used after 1944 would give
the surviving spouse a reserve of 1/6, the parents would receive their reserve of (Art. 843 of the
Civil Code, 915 of the NC) and the sister would be forced to accept a disposable portion of 1/3 (1/1
less the two reserves added together). Thus he highlighted a case where the reserve of the parents
would be greater than their lawful share (1/2 as opposed to 1/3) and the sister would receive what
would come to her even in the absence of any gratuity. [45]
However, the calculation made by Deak was rejected by another author, who considered that if the
sister had opted to be a testamentary successor, the reserve of the spouse would be (Art. 2 quoted
in Art. 1 c) of Law no. 319 of 1944). [46]
We consider that both solutions are acceptable, as everything depends on the way in which the
testators wishes have been expressed in practical terms.
a) when the party disposing writes that he has appointed his sister universal legatee, the implicit
consequence of this appointment is that she will be deprived of her right to inherit. Her status as
universal legatee removes her own legal entitlement which is not protected by any sort of reserve.
[47] The spouses reserve would therefore be , and not 1/6, as Art. 2 would be combined here with
subparagraph c) of Art. 1 of Law no. 319. By implementing the Eliescu system, Deak should therefore
have given the surviving spouse a reserve of , the privileged ascendants , and the legatee sister a
disposable portion of . By using the calculation system proposed by Deak, the wifes reserve would
now be one quarter, the parents 3/8 (1/2 of the remaining after having deducted the spouses
share), the sister receiving the remainder, that is 3/8. Two deficiencies result from both systems: the
parents receive more (1/2, and 9/24 respectively) than they would receive under their statutory
entitlement (1/3, and 8/24 respectively) and the beneficiary sister has to be content with less.
b) on the other hand, when the party disposing writes that he is leaving his sister the whole of the
disposable portion apart from her share as statutory heir, [48] this comprehensive entitlement would
have led to Deaks solution: the sister would not be removed from the statutory succession. His
solution was criticised as unconvincing because it lacked specific examples. In reality, what he meant
was that the party disposings intention to make a liberality would not in every case destroy the legal
entitlement to inherit of a sister who had been appointed as an heir.
To return to the thread of our argument, it is interesting to note that all Romanian authors are
preoccupied with finding a reserve that is smaller than the statutory entitlement, because the
reserve remains part of the estate [49] and because there cannot be a reserved portion of an
estate without a law of succession. [50] The legal classification of pars hereditatis is something
acquired from the classic treatise of Alexandresco [51] and remains valid today. In our view, an indepth analysis of the problem will give a nuanced response.

A French author [52] has shown to what extent historically the legal nature of the reserve is the
consequence of a legislative option. When devolution by law is the rule, the reserve will naturally be a
guarantee of family cohesion and a pars hereditatis that cannot be taken away from the legal heirs.
Whereas when the legislator chooses testamentary devolution as the rule, the heirs will be
designated by the party disposing and the reserve will be a right to receive a payment in kind (pars
bonorum) granted to blood relatives who are not obliged to accept the succession. Which of the two
concepts was adopted in the Napoleonic Code [53] and, implicitly, by the Romanian Civil Code of
1864? The Napoleonic Code adopts an individualistic conception of property, but the provision is
subject to by an assumption of family affection. [54] It is therefore not surprising that the reserve is
a mixture of the pars hereditatis and pars bonorum systems. This conclusion is obvious when one
examines Articles 913-916 of the NC (Art. 841-843 of the Civil Code). The code regulated the
disposable portion in these articles (which characterise the pars bonorum reserve), and not the
reserve (as is the case for the pars hereditatis reserve). [55]
But in 1944, Romania adopted Law 319. Its first article places the surviving spouse at the forefront of
devolution by law: he or she will have a share in the succession of his or her deceased spouse , in
competition with every other order of successors, even if he or she is not a member of any of them. It
then sets out a method of calculation that is specific to the pars hereditatis system: Art. 2 determines
the reserve of the surviving spouse and grants it without affecting the rights of the other forced heirs.
In other words, the Romanian legislators intention was to recognise the value of the spouses
emotional and financial contribution; but he did not pursue this to its logical conclusion, being unable
to set aside 80 years of living with a civil code that did not wish to see assets wasted on those who
were not blood relations. [56]
In conclusion , in view of the inconsistency of the Civil Code of 1864, the arguments referring to
the pars hereditatis reserve are not decisive. [57] The legal entitlements and reserves established in
Law no. 319 could not be reconciled with those established by the Civil Code under the need for unity
that characterised the pure theory of the pars hereditatis reserve. Full of noble intentions, the
Romanian commission of 1944 has unfortunately proved to be the source of provisions that are
laconic, ambiguous and insufficiently correlated with the Civil Code: the rights of traditional statutory
heirs were limited in order to make room for the spouse, but their reserves were left intact, which
created a fundamental imbalance. [58]
We will show how these observed facts work in practice by returning to the example given above. In
Art. 915 (843 of the Civil Code), the French Code of 1804 had set a reserve equal to their legal
entitlements (1/2, and respectively). It wanted to prevent them from ever being deprived of their
right to inherit, leaving responsibility for the liberalities to the privileged collaterals. [59] It is an
obvious exception, as under pars hereditatis logic a reserve will always be less than the legal
entitlement of a forced heir. The first article of the Romanian law of 1944 reduced to 1/3 the legal
entitlement of fathers and mothers coming to the succession together; it is therefore lower than the
reserve of , still in place under its Article 2.
It is for these reasons that, as long as the former Romanian Civil Code remains in force, the solution
supported by Eliescu seems to us the only correct one. It cannot be modified by using theoretical
arguments which did not form part of the legislators intention in 1864 or 1944.
5.2. Deak and Chiric do at least deserve credit for having tried to reconcile the Civil Code, based on
blood relations, and the legislative experiment, which was innovative but incomplete, undertaken in
1944. Did they succeed? We think not.
Professor Deaks solution is acceptable only insofar as it is acceptable to implement the law in a way
that departs from its authors intentions, when it has not fulfilled its purpose or when that purpose
has been overtaken by everyday life. This is how several Napoleonic provisions have continued to be
implemented while remaining officially unchanged for more than two centuries. But the problem lies
elsewhere: the technical arguments advanced by Deak cannot be upheld as they stand. Their author
did not try to re-interpret the law of 1944 in order to adapt it to the sociology of the present time, but

his interpretation of the parameters of the law had little to recommend it. In other words, his
intention was good, but it was poorly executed. He probably took this question into account, because,
in the final analysis, he proposed that, in a new civil code, the criterion used to determine the reserve
of the surviving spouse should be extended to all the other forced heirs. [60]
Meanwhile Professor Chiric attempted to resolve the matter by applying 21st century reasoning: the
surviving spouse would be a forced heir like the others; he or she would therefore naturally be
included in a collective reserve. [61] This way of proceeding remains inappropriate ab initio, as it
treats the intention of the legislator with disdain. The reserves in the Civil Code are global and that of
the spouse is individual because there is no conceptual crossover between the two: the surviving
spouse was still regarded in 1944 as an exotic figure in the legal successive order, an intruder to
whom an equitable reward is owed in a form of devolution which was still based, in principle, on
blood relations. Art. 2 of Law no. 319 de 1944 therefore wanted to establish in a straightforward way
a final reserve for the surviving spouse, which could be imputed only to the available portion; if it is
added to the global reserve determined for the blood relatives and the result obtained is then
partitioned in accordance with the rules of devolution by law, this would go well beyond what was
intended under the 1944 law. The spouse would receive a different reserve from the one expressly
determined by Art. 2 of the law. [62]
6. Conclusion. This was how the matter stood before 1st October 2011. The problems encountered are
understandable. On 10 June 1944 the Romanian jurist had to determine how to accommodate the
surviving spouse, giving this person a prominent position in a process of devolution based on blood
relationships. The rules of the game (the composition of the orders, the extent of the rights, the
amount of the disposable portion and how to determine it in real terms, the calculation of the reserve
and how to partition it) were agreed with a view to retaining the assets in the hands of the blood
relatives. The abrupt appearance of a civil relative, to whom the law suddenly granted significant
rights, turned the logic of the system upside down and created controversies like the one discussed
above.
This may lead to a more nuanced stance towards the views of authors writing in the late 20thand
early 21st centuries. They lived through sociological changes which, at a certain point, overtook the
noble reform of the 1944 legislation, and sought new solutions appropriate to the new daily reality.
The experience of Roman law shows that it is sometimes necessary to undergo a period of trial and
error that is barely satisfactory from a legal point of view in order to replace outmoded legislation,
such as the decemviral laws in the case of the Romans. A similar phenomenon occurred
in Romania when, in 2009, the new Civil Code came into being, enshrining in law the changes that had
taken place.
The reserve in the new Romanian Civil Code

The issue requires an analysis of the regulatory practice adopted. This will show the conception of the
legislator. We will then outline the method of calculating the reserve proposed by the new code and
will conclude with the way in which the code deals with the difficulties of the past and how the
reserve has evolved in Romanian succession law.
Art. 1086 The concept of the reserved portion of an estate . The reserved portion of an estate is the
share of the assets to which forced heirs are entitled by operation of law, even despite the wishes of
the deceased as shown by liberalities or by disinheritance.
Art. 1087 Forced heirs. Forced heirs are the surviving spouse, and the descendants and the
privileged ascendants of the deceased.
Art. 1088 The amount of the reserve . The reserved portion of the estate of each forced heir is half
of the share of the estate to which he would have been entitled, in the absence of liberalities and

disinheritance.
Art. 1089 The concept of the disposable portion . The disposable portion is the share of the assets
that make up the estate that the law does not set aside and which the deceased may dispose of
without restriction, by liberalities.
7. The circle of forced heirs therefore remains unchanged for successions opened after 1 October
2011. It must be added that the bill brought before Parliament in 2008 also granted a reserve to
privileged collaterals. The Law Commission of the Chamber of Deputies rejected this proposal,
because such a reserve does not exist anywhere in Europe. [63] In another respect, it is clear how the
method of calculation of the surviving spouses reserve introduced in 1944 now applies for all the
forced heirs.
Articles 1086 and 1089 of the NCC re-use the doctrinal definitions given by Professor Francisc Deak.
[64] As a result there is a definition of the reserve and the disposable portion in the Romanian Civil
Code for the first time. We have already shown the extent to which the code of 1864 merely
reproduced the Napoleonic solution: it laid down the size of the disposable portion, without defining
the concepts. The fact that the reserve is defined in Art. 1086 of the NCC reflects the Romanian
legislators choice of a pars hereditatis reserve, [65] a solution endorsed by the development of
French and Romanian doctrine and case law.
8. Article 1088 of the NCC reaffirms this choice, standardising and simplifying the calculation of the
reserve. The common criterion to be used to determine this is as stated the legislative recognition
of a de lege ferenda (on the basis of new law) proposal made by Francisc Deak; it put an end to the
controversy described above. As a result, the new Romanian Civil Codes approach is that, whatever
the status and number of the forced heirs, the emphasis will be on calculating the shares that these
heirs would have received in a devolution by law before dividing them by two in order to obtain the
reserve.

So what then would be the solution in the working hypothesis looked at above? Spouse E would
receive her reserve of 1/8 (1/2 of ), child A would get a reserve of 3/8 (1/2 of ) and the
disposable portion of 4/8 (1/2) would be attributed to the universal legatee T. In other words, in the
new Civil Code, when liberalities have been made, the shares of the forced heirs should be calculated
in the order and following the amount of the devolution by law, and then divided by two.
Notice how each time the figure for the disposable portion is put at half the estate. If Professor
Deaks intention, which is endorsed in the extract we have analysed, were complied with, it would be
2/3 in the other example given: the surviving spouse, in competition with the parents of the deceased
and with his sister, the universal legatee, would have a reserve of 1/6 (1/2 of the third he would
have received in a succession by law into which he would have entered in competition with the
ascendants and the privileged collaterals), the proportion reserved for the ascendants would be 1/6
(1/2 of 1/3) and the disposable portion of 2/3 would go to the sister, who is a beneficiary. If the
universal legatee were a third party, the sister would be excluded from the statutory heirs, in
accordance with the adage instituer, cest exclure (to appoint is to exclude): the estate would be
partitioned between spouse E (1/4) and the father and mother (1/8 each), the disposable portion of
going to the third party legatee.
9. This simplification process will also have the effect of eliminating the collective reserves, by making
them individual. [66] Those who persist in asserting the existence of collective reserves, [67] or that
all reserves are collective, [68] do not seem credible to us. While it is true that the new code
regulates the reserve of all the forced heirs in the same way, [69] this means only one thing: that
Art. 1087 of the NCC has joined the movement to include Law no. 319 of 1944 in the code which we
mentioned in the first part of our analysis. The surviving spouse is thereby included in the legal listing
effected by the code. And yet, Art. 1088 of the NCC is crystal clear: The reserved portion of the

estate of each forced heir [] .

The method of regulation proves to be no less eloquent than that used in the former code. The reserve
was described as collective because, in articles 841-843 of the Civil Code, the legislator does not
establish the reserve by attributing it individually, but does no more than show the extent to which,
and the way in which, the disposable portion will be determined, in entrusting the reserved estate
assets to the rules governing the ab intestat devolution of an estate to the relatives appointed by law
[] . [70] The difference in terms of legislative technique is obvious, because the share of each
forced heir has to be determined.
The trend towards attributing the reserve individually has also been noted by French authors, even if
Art. 913 (= 841 of the Civil Code) has remained unchanged (it still regulates the disposable portion,
from which the collective reserve is deducted). Legislative changes triggered by sociological changes
have influenced evolving conceptions of social institutions: the preservation of assets within the
family is no longer an imperative. The reserve no longer represents a recognition of a duty to protect
the whole family group, but of a duty the deceased is assumed to have had towards each forced heir
in particular. The introduction in 1971 of Art. 919-1 para. 1 has seen the use of the expression
individual share of the reserve , in opposition to total reserve , which is collective. The reform
of successions in 2006 changed the mechanism used in principle to effect the reduction, which is now
done by an equivalent (Art. 924), etc. [71]
The Romanian legislators decision to favour the individual character of the reserve may be observed
in the effects of disinheritance, which are regulated in Art. 1075 para. 2 of the NCC: when, following
a disinheritance, the disinherited person and the person benefitting from the disinheritance are called
to the succession, alongside the surviving spouse, the beneficiary of the disinheritance collects the
shares of the estate of the surviving spouse and of the disinherited person after their respective
shares have been attributed . The wording envisages the hypothesis in which the disinherited
person is a forced heir. For example, if the succession is accepted by spouse E and by children A and
B, but a will has disinherited A, spouse E will receive his or her legal share of 4/16 (1/4), child A will
have only his reserve of 3/16 (1/2 of his legal entitlement of 3/8), while the other child, B, will
receive what remains: his legal entitlement of 6/6 (3/8) plus the 3/16 from the disinheritance of his
brother. The solution is consistent with the position adopted by Professor Deak, as stated in the
second paragraph of Art. 964: If the relatives of the closest order [of succession] are not able to
take the whole estate following the disinheritance, the remaining part devolves to the relatives of the
subsequent order who fulfil the conditions required to inherit . This explains why, in the foregoing
example, spouse E and child B will not receive their reserves of 1/8 and of 3/16, but their legal
shares of and 3/8. The second paragraph of Art. 1075 of the NCC is applicable even if the
beneficiary of the disinheritance is a forced heir of a subsequent order (such as the father of the
deceased) or one of the heirs not entitled to their legal share.
10. The controversy over the calculation of the reserve should a forced heir renounce his right or be
unworthy to inherit is definitively resolved by the new Romanian Civil Code.
Art. 1091 The determination of the reserved portion of an estate and the disposable portion .
[] (5) The reserved portion of an estate and the disposable portion are calculated according to the
value set in accordance with the first paragraph. In determining the reserve, account will not be taken
of those who have renounced their inheritance, with the exception of those bound to collation under
the terms of the second paragraph of Art. 1147 .
11. Trends in the development of the reserved portion of an estate . One of the most brilliant French
lawyers of the 17th century wrote:
It is an immutable law that fathers must leave their estates to their children after their death and it
is also another law generally ranked among the natural laws, that one can dispose of ones property
by will . [72]

In making the comparison between the old and new Romanian Civil Codes, it is noticeable that the
disposable portion has increased. Reducing the size of the reserve is a widespread trend in
continental Europe, a consequence of a growing individualism, which places a high value on the free
disposal of property. [73]
Since the reform of succession law in France in 2006, ascendants are no longer forced heirs. They
received a not very significant statutory right of return as compensation. [74] Traditional
impediments to the wishes of the testator, such as the prohibition on agreements on future
successions, and fidicommis-based substitutions have also been relaxed. [75]
And the narrowing of the circle of forced heirs is not the only change that has taken place. The
reserve has also tended to become more similar to a pars bonorum, which gives its holder merely a
right to make a claim against the estate. [76] This is the situation
in Germany, Austria, Sweden,Finland, the Netherlands and Poland. [77] France has been moving in
the same direction since the reform of 2006, [78] while in Switzerland, Spain and Italy the forced heir
can ask to be the heir only when the deceased has not given him the total value of the reserve
through liberalities: [79] the solution of Roman law!
In France the forced heir can even renounce his inheritance tacitly and express renunciations are
endorsed by what notaries call consent to performance . [80] Romanian notaries employ the same
device, advising the party disposing to send a request to one or more of the forced heirs, to respect
his wishes regarding the disposal of the estate. We have observed how, in such a situation, there are
parties called to inherit who renounce the succession; others accept it without requesting that
liberalities be reduced, even if respecting the wishes of the deceased does not benefit them in any
way. In the latter scenario, those called to inherit are motivated by moral considerations, intending,
for example, to protect the memory or the work of the departed.
After the 1971 reform, in accordance with Art. 930 para. 2 (which became Art. 929 after the 2006
reform), a forced heir may renounce the right to have a gift made to a third party reduced in kind.
This is an agreement on a succession that has not yet been opened, under whose terms the forced
heir chooses alone to have the gift reduced by an equivalent amount. [81] The 2006 reform changed
the rule on the way in which reductions operate. They are now reduced in terms of value, leading to
greater respect for the wishes of the deceased. [82]
The French Court of Cassation decided in 1975 that only the forced heir could invoke the reserve, [83]
after having long held, more restrictively, that anyone could do it: public policy on the reserve has
been replaced by a public policy of protection. [84]

[1]Elementele dreptului civil [Elements of Civil Law], Ed. Ramuri, Craiova, 1921, p. 280.
[2] Henri Capitant, Droit romain La loi Falcidie. Droit franais Des clauses demploi et de remploi
insres dans le contrat de mariage, Dijon-Paris, Imprimerie rgionale, 1889.
[3]See our report Successions et famille presented at the Romanian Congressof the Henri
Capitant Association, in Les successions Travaux de lAssociation Henri Capitant, Journes
roumaines, volume LX/2010, Bruylant, 2012, pp. 203-206 and online in Studia Universitatis Babe
-Bolyai, series Iurisprudentia (SUBB) no. 4/2010 http://studia.law.ubbcluj.ro/articol.php?
articolId=352.
[4] According to the Civil Code the devolution of an estate is based on kinship and secondarily on
marriage (Marie-Claude Catala de Roton, Les successions entre poux, Economica, Paris, 1990,
p. XI).
[5]Alexandru Oteteli anu, Dreptul de succesiune al so ului supravie uitor [The surviving spouses
right to inherit] , Bucharest, 1912, pp. 44-58 and 91-93; Dimitrie Alexandresco, Explica iunea
teoretic i practic a dreptului civil romn [Theory and practice of Romanian civil law] , vol. III/2,
Succesiunile ab intestat [Intestate successions], Socec, Bucharest, 1912, pp. 188, 198-200 i 213;
Dem. D. Stoenescu, Observation at Ap. Craiova I, Dec. 151/1923, in Pandectes roumaines,
1924.II.33; Mihai G. Rarincescu, in Curs de drept civil pentru anul IV licen . Succesiunile (ab
intestate i testamentare) i dona iunile [Civil law course for the 4th year of a first degree course.
(Intestate and testamentary) successions and gifts] , Bucharest, 1945, pp. 117-118; Ion Rosetti-B l
nescu, Alexandru B icoianu, Drept civil romn, vol. III:Regimuri matrimoniale. Succesiuni. Dona
iuni. Testamente [Romanian civil law, vol. III:Matrimonial property regimes. Successions. Gifts.
Wills], Socec, Bucharest, 1948, p. 252, no. 601.
[6]For details see Alexandresco III/2, pp. 188-189; Rarincescu, op. cit., p. 116-117 i 119-127;
Rosetti-B l nescu, p. 253, no. 603 and p. 694, no. 1688. See also the details given in our study:
Propter veteris iuris imitationem: nou i vechi n materie succesoral n noul cod civil (I) [Propter
veteris iuris imitationem: new and old in succession matters in the New Civil Code], in SUBB
no. 4/2010,
http://studia.law.ubbcluj.ro/articol.php?articolId=354 no. 3.7.
[7]For details, see Alexandru Oteteli anu, Curs de drept civil comparat. Materia special . Dreptul de
succesiune al so ului supravie uitor n dreptul comparat [Comparative civil law course. The right of
succession of the surviving spouse in comparative law] , litho., Bucharest, 1947, pp. 19-26; Jacques
Flour, Cours de droit civil. Licence 4e anne, litho., Paris, 1966/67, pp. 12-13; Franois Terr, Yves
Lequette, Droit civil. Les successions. Les libralits, Dalloz, Paris, 1997, pp. 15-16, 18 and 27-28;
Germain Brire, Trait de droit civil. Les successions , (ed. Paul-Andr Crpeau), publ. Yvon Blais,
Montreal, 1994, p. 47; Ulrich Spellenberg, Chuma N. Himonga, C. Adjmagbo-Johnson, Recent
developments in succession law, in Roger Blanpain (ed.), Law in motion, Kluwer, 1997, pp. 720 and
734. The situation at the European level has been summarised by Diana Bere, Fundamentele rezervei
succesorale [The basis of the reserved portion of an estate], in SUBB 3/2009, no. VIII, Tendances
actuelles, and online at http://studia.law.ubbcluj.ro/articol.php?articolId=310#_ednref47. See also
the thoughts of Jacques Auger, Les principes de dsignation des hritiers lgaux. Unit proximit
galit , in Mlanges Roger Comtois, Thmis, Montreal, 2007, p. 82.
[8] Pierre Voirin, La famille et lhritage, in vol. Le maintien et la dfense de la famille par le droit,
Sirey, Paris, 1930, p. 154; Terr, Lequette, op. cit., pp. 15-16.
[9]Art. 731 of the NC = Art. 659 of the Civil Code: Succesiunile sunt deferite copiilor i descenden
ilor defunctului, ascenden ilor i rudelor colaterale, n ordinea i dup regulile mai jos
determinate .
[10] Terr, Lequette, op. cit., p. 25; Spelleberg, Himonga, Adjamagbo-Johnson, op. cit., pp. 711-749.
[11] http://moldova.go.ro/pagini/populatie.htm#1930.
[12] http://www.recensamantromania.ro/wp-content/uploads/2013/07/REZULTATE-DEFINITIVERPL_2011.pdf, p. 2.
[13]Vasile Ghe u, Speran a de via a popula iei din Romnia [The life expectancy of the
Romanian population], in Viitorul social [The social future] (year VII), no. 1/1978.143, online:

http://adatbank.transindex.ro/html/cim_pdf608.pdf.
[14]Id., p. 145.
[15]http://www.insse.ro/cms/files/publicatii/Romania%20in%20cifre_%202012.pdf, p. 14.
[16]E.g., Rosetti-B l nescu, p. 233, no. 603. For a summary of relevant legislation, see Mircea Dan
Bob, Succession et famillei, cit. supra, no. 5 and in Les successions Travaux, cit. supra, pp. 199208.
[17]See Ioan Popa, Rezerva succesoral [The reserved portion of an estate], in Revue roumaine de
droit priv, no. 5/2008, pp. 110-116.
[18]Court of Cassation, combined chambers, 27.11.1863, in Grands arrts, pp. 617-619.
[19]Romanian Court of Cassation, Civil Division, 388/18.12.1876, Bull. 1876.501.
[20]For the full story of the controversy, see N. St nescu, Despre partagiu i rezerv [On partition
and the reserve] , Institutul grafic Samitca, Craiova, 1910, pp. 542-554.
[21]Court of Cassation, Civil Division, 13.08.1866, 23.06.1926 and 9.5.1938, in Grands arrts,
pp. 610-616. Italian case law is moving in the same direction when it holds that the reserve should be
determined according to the situation when the succession is opened, even if, subsequently, a forced
heir who is called to inherit renounces his entitlement or his option lapses by limitation (Cesare
Massimo Bianca, Invariabilit delle quote di legittima: i nuovo corso della Cassazione e i suoi riflessi
in tema din donazioni e legati in conto di legittima, obs in Italian Court of Cassation, S-U.,
13429/9.06.2006 and 13524/12.06.2006, in Rivista di diritto civile 2008.II.211-221).
[22] Terr, Lequette, op. cit., pp. 505-507, no. 626; Michel Grimaldi, Droit civil. Les successions ,
Litec, Paris, 2001, pp. 292-293, no. 299.
[23]See case law and the authors cited by Popa, op. cit., p. 110, note 16.
[24]Francisc Deak, Tratat de drept succesoral [Treatise on inheritance law], Universul
juridic,Bucharest, 2002, p. 310, no. 204.2; Dan Chiric , Drept civil. Succesiuni i testamente [Civil
law. Successions and wills] , Rosetti, Bucharest, 2003, pp. 310-311, no. 403; Romeo Popescu, Dreptul
de mo tenire. Limitele dreptului de a dispune prin acte juridice de bunurile mo tenirii [The right to
inherit. The limits on the right to dispose of the assets that make up the estate by legal transactions] ,
thesis, Universul juridic, Bucharest, 2004, pp. 123-127.
[25]Mihail Eliescu, Mo tenirea i devolu iunea ei n dreptul RSR [Succession and its devolution in
the law of the Socialist Republic of Romania]) , publ. by the Romanian Academy, Bucharest, 1966,
pp. 329-332.
[26] St nescu, op. cit., p. 554, no. 886; Terr, Lequette, op. cit, p. 506; Grimaldi, Successions, p. 293.
[27]Another Romanian author wrote in the same vein: What authors and case law fail to recognise
is one of the special features of our code: in the Romanian succession regime there are a lot of echoes
from ancient laws The former Romanian law, pre-revolutionary French law or Roman law (George
Plastara, Curs de drept civil romn, vol. III, Succesiuni i liberalit i [Romanian civil law course,
Vol. III, Successions and gifts], Cartea Romneasc , Bucharest, f.a. [1925?], pp. 618-619).
[28]Another author used the term in the same way (the code uses the term heirs only for those
called to inherit who effectively come to the succession) (St nescu, op. cit., pp. 535-542).
[29]Cantacuzino, op. cit., p. 282.
[30]See Court of Cassation, Civil Division, 388/18.10.1876, cit. supra, pp. 500-501.
[31]Rosetti-B l nescu, p. 694, no. 1687 and pp. 697-698, no. 1695; Mihail Eliescu, Curs de
succesiuni [Succession law course], Humanitas, Bucharest, 1997, pp. 154-155; id., Mo tenirea cit.
supra , pp. 338-339; the authors cited by Francisc Deak, Stabilirea drepturilor succesorale ale
ascenden ilor privilegia i i colateralilor privilegia i n concurs cu so ul supravie uitor (II) [The
determination of the rights of succession of the privileged ascendants and privileged collaterals in
competition with the surviving spouse], in Revue roumaine de droit 4/1989.33, note 35; I.C. Vurdea,

Stabilirea... (I), p. 29, notes 15 and 16; Ap. Craiova civ., 1543/1999, in Victoria Daha, Constantin
Furtun , Probleme de drept... [Problems in law], Craiova, 2000, p. 90.
[32]Deak, Stabilirea..., cit. supra, pp. 30-35 (see id., Tratat, pp. 316-320).
[33]Deak, Stabilirea , cit. supra., p. 33-34; Elena Boroi, Gabriel Boroi, Corela ia dintre prevederile
Art. 939 din Codul civil i Decretul-lege no. 319/1944 [The correlation between Art. 939 of the Civil
Code and Law no. 319/1944], in Revue roumaine de droit, 9-12/1989.30; Veronica Stoica, Dreptul la
mo tenire [The right to inherit] , Universul juridic, Bucharest, 2007, p. 239; Elena Stanciu, Drepturile
succesorale ale so ului supravie uitor [The inheritance rights of the surviving spouse] , Hamangiu,
Bucharest, 2008, pp. 28-33; Popescu, op. cit., p. 155; Bucharest V Court, civil division,
1730/12.12.2008, in Cristina Nica, Dona ia i mo tenirea. Doctrin i practic judiciar adnotat
[The gift and the succession. Legal theory and annotated case law] , 2 vols., Hamangiu, Bucharest,
2011, p. 254.
[34] Eugenio Safta-Romano, Dreptul de mo tenire n Romnia. Doctrin i jurispruden [The law
of succession in Romania. Legal theory and case law] , Graphix, Ia i, 1995, vol. I, p. 314.
[35]Dan Chiric , Caracterul colectiv al rezervei i consecin ele practice ale acestuia [The collective
character of the reserve and its practical consequences], in SUBB 1/2003.33-37 (see also
id.,Succesiuni, pp. 306-308 and 314).
[36]Popescu, Limitele, p. 160.
[37]Emilia Claudia Albulescu, Discu ii referitoare la cota succesoral a so ului supravie uitor n
unele situa ii speciale [Discussions on the surviving spouses share of the estate in certain special
situations], in Le droit, 3/2007.42.
[38]Popa, Rezerva, p. 117.
[39] When Art. 2 designates the surviving spouse as a forced heir, the legislator, in choosing to use
periphrasis to establish this right, fails to make his meaning clear (Vasile S. Pan urescu, Dreptul de
mo tenire al so ului supravie uitor (Observa iuni sumare la legea nr. 319 din 10 iunie 1944) [The
surviving spouses right to inherit (Summary observations on Law no. 319 of 10 June 1944)] , Tiparul
Oltului, Slatina, 1944, p. 11). Other authors noted: as far as the reserve is concerned, the new law
is extremely ambiguous (Rosetti-B l nescu, op. cit., p. 694).
[40]M. Of., no. 133 of 10 June 1944, pp. 4491-4492. It is also reproduced in the review Notariatul
public [The public notarial profession], no. 5-6/1944, pp. 74-76, where it was discovered by Loredana
Iacob, Rezerva succesoral partea I [The reserved portion of an estate part one], in Buletinul
notarilor publici [Bulletin of notaries public], 4/2010.50. See also Ioan Popa, Rezerva succesoral i
mo tenitorii rezervatari n reglementarea noului Cod civil [The reserved portion of an estate and the
forced heirs under the provisions of the new Civil Code], in Le droit, 6/2011.38.
[41]Raportul dlui ministru al justi iei, in Notariatul public, cit. supra, p. 76.
[42]Pan urescu, loc. cit. supra; Rosetti-B l nescu, op. cit., p. 258, no. 616.
[43]Pan urescu, loc. cit. supra; Rosetti-B l nescu, op. cit., p. 697, no. 1694; Eliescu, op. cit., p. 339,
as well as notes 104-106.
[44]E.g., Civil Supreme Court, 472/26.03.1964, in Culegere de decizii (Collection of judgments)
1964.129 and 662/15.03.1972, in Repertoriu 1969-1975, p. 207, no. 529.
[45]Deak, Stabilirea, p. 34.Contra, but without putting forward an argument: Popescu, Limitele,
p. 160.
[46]Chiric , Succesiuni, pp. 313-314.
[47]See even Deak, Tratat, p. 272, no. 175.2. See also Ap. Bucharest IX civ., 549/510.2006, in Revue
roumaine de jurisprudence, 1/2009.109.
[48]See Art. 846 of the Civil Code, 919 of the NC and Philippe Malaurie, Laurent Ayns, Les
successions. Les libralits, Defrnois, Paris, 2010, p. 432.

[49] Vurdea, Stabilirea cit. supra, p. 27; Popescu, op. cit., p. 157.
[50] Vurdea, loc. cit., p. 28. Aceea i preocupare i la Deak, loc. cit.
[51] Dimitrie Alexandresco, Explica iunea teoretic i practic a dreptului civil romn, vol. IV/1
Dona iunile ntre vii (Inter vivos gifts) , Socec, Bucharest, 1913, p. 508.
[52]Grimaldi, op. cit., pp. 275-278. For the historical development of the problem, see Rosetti-B l
nescu, op. cit., pp. 685-686, no. 1671; our thesis Testamentul, Evolu ia succesiunii testamentare n
dreptul roman [The will. Development of testamentary succession in Romanian law] , Lumina lex,
Bucharest, 2000, pp. 89-94; Jean-Philippe Lvy, Andr Castaldo, Histoire du droit civil, Dalloz, Paris,
2002, pp. 1286-1289, nos. 955-958, with further sections on pre-revolutionary French law: p. 1295,
no. 965, p. 1297, no. 968 and pp. 1298-1299, no. 969.
[53]For the French Code, see Grimaldi, op. cit., pp. 278-279; Lvy, Castaldo, op. cit., pp. 1300-1301,
no. 972; Malaurie, Ayns, op. cit., p. 309, no. 606.
[54]Flour, op. cit., p. 13.
[55] Art. 841 of the Civil Code indirectly determines the reserved portion of the estate in relation to
the disposable portion (Popa, Rezerva..., p. 109).
[56]See also St nescu, op. cit., p. 533.
[57]Under the authority of the 1864 code, the reserve came to be seen solely as a pars hereditatis, in
the light of the provisions that resulted from the case law and legal theory, which reinterpreted the
existing law. It has been proved that originally the letter of the code adopted a mixture of concepts
(see Grimaldi, op. cit., pp. 278-279).
[58]For a critique of Law no. 31 of 1944, see Rarincescu, op. cit., pp. 131-133; Rosetti-B l nescu,
op. cit., pp. 694-695, no. 1689.
[59]Grimaldi, op. cit., p. 296, no. 301. Cf. "[...] this distinction drawn in favour of the reserve
stemmed from the legislators concern for any brothers and sisters who had been excluded from the
succession in the will, in order to ensure that part of the assets of the disinherited brother or sister
should remain in the surviving parents patrimony (Romanian Court of Cassation I, 403/25.11.1883,
in Bull. 1883.1068).
[60]Deak, Stabilirea, p. 34, note 37. In the same vein, Popescu, Limitele, p. 157.
[61][...] when the spouse comes to the succession in competition with other forced heirs, the
reserve can only be global (Chiric , op. cit., p. 308).
[62]In the same vein, Popa, Rezerva, p. 121. Another author concludes: "[...] The legislator used two
completely different systems to calculate the reserved portion of the estate, one sanctioned by the
Civil Code, and the other by Law no. 391 of 1944. Thus, in the Civil Code system, the descendants
reserve is determined without any correlation being made with the legal share that they receive.
Similarly, the amount of the ascendants reserve is identical to that of the legal portion attributed to
them (Popescu, op. cit., p. 156).
[63]The proposal to grant a reserve to the privileged collaterals was also made during the drafting of
the Napoleonic Code, citing the need to be fair and to keep assets within the family. For the rejection
of this proposal, see St nescu, op. cit., pp. 590-591, no. 894.
[64]Deak, Tratat..., p. 302, no. 194.
[65]Our conclusion is not altered by the fact that Art. 1089 of the NCC also defines the disposable
portion. Its definition is intended mainly to instruct, since Art. 1088 of the NCC had established the
reference points in figures pertaining to the reserve.
[66]Albulescu, op. cit., p. 46; Macovei, Dobril , in Flavius Baias, Eugen Chelaru, Rodica
Constantinovici, Ioan Macovei (eds.), Noul Cod civil. Comentariu pe articole [The new Civil Code.
Comments per articles], C.H. Beck, Bucharest, 2012, p. 1116. This is an accidental return to the
concept that exists in France, and in countries with written law, where Roman law is the dominant
influence (St nescu, op. cit., pp. 534-535).

[67] Liviu St nciulescu, Curs de drept civil. Succesiuni [Civil law course. Successions] ,
Hamangiu,Bucharest, 2012, p. 152.
[68]Popa, Rezerva, p. 33-34; Ilioara Genoiu, Dreptul la mo tenire n Noul Cod civil [The law of
succession in the new Civil Code] , Beck, Bucharest, 2012, p. 267.
[69] Genoiu, loc. cit. supra.
[70] Cantacuzino, op. cit., p. 281.
[71] Malaurie, Ayns, op. cit., p. 314, no. 617.
[72] Domat, Les lois civiles Trait des lois, chap. 11 and 7, cited by Marcel Beaubrun, Lordre public
successoral, thesis, Paris, 1979, p. 5.
[73]See Katarina Boele-Woelki, Jo Miles, Jens M. Scherpe (eds.), The future of family property in
Europe, Intersentia Publishing, 2011, pp. 229-278; Renate Barbaix, Bart Verdickt, Libralits
assorties dune clause dexclusion de la jouissance lgale concurrence de la rserve : jusquo va la
libert contractuelle ou testamentaire? , in Liber Amicorum Walter Pintens Confronting the frontier
of family and succession law, Intersentia Publishing, 2012, vol. I, pp. 111-134; Franck Gotzen,
Charlotte Declerck, La libert de contracter et de tester dans le domaine du droit moral , in id.,
pp. 663-670. For an example in an actual situation, see Jean Alaugnier, La rserve hrditaire peutelle survivre lassurance-vie ? , in Gaz. Pal. 29/2011.23. For development in the opposite direction
in Quebec, where, as a result of the English occupation, the reserve was eliminated in the
18th century, see Christine Morin, La libert de tester : volution et rvolution dans les
reprsentations de la doctrine qubcoise , in Revue de droit de lUniversit de Sherbrooke (38),
no. 2/2008.339-384.
[74] Malaurie, Ayns, op. cit., pp. 316-317, no. 623.
[75] Pierre-Marie Reverdy, La contractualisation du droit des successions , in LPA, 33/2004.4 sqq.
[76]Alain Verbeke, Yves-Henri Leleu, Harmonization of law of succession in Europe, in Towards a
European Civil Code, Kluwer, 2004, pp. 342-343.
[77] Paul-Henri Steinauer, Le droit des successions, Stmpfli Editions SA, Bern, 2006, p. 200, no. 356.
[78] Malaurie, Ayns, op. cit., p. 309-315.
[79]Steinauer, op. cit., p. 201, no. 356 i 359.
[80]Id., p. 311-312.
[81] Michel Dagot, Lesprit des rformes rcentes du droit successoral (Libert-galitFraternit) , in Mlanges Marty, Toulouse, 1978, p. 313.
[82]Reverdy, loc. cit. supra.
[83]Court of Cassation, Civil Division, dec. din 10.06.1975, in Bull. civ. 1975.I, no. 193, p. 164.
[84]Grimaldi, op. cit., p. 336, no. 338.