Le "Querelae" di inofficiosità. Contributo allo studio della tutela dei legittimari in diritto romano

The aim of the research is the analysis of the rise and the development of forced heirship in roman law through the study of "actions on inofficiosity", i.e. querela inofficiosi testamenti, querela inofficiosae donationis and querela inofficiosae dotis. The first one is a remedy against wills written in breach of officium pietatis: the deceased does not mention or disinherits unfairly the closest relatives, by bequeathing them nothing or less more. On the contrary, the other querelae are remedies against donations or dowries which de cuius made during his life and which violate the succession interests of the closest relatives. The work is designed in six chapters, where the main characters of the above remedies are described: querela inofficiosi testamenti is the main subject due to its ancient origin, the most frequent confirmation in the sources and its prominent role. The querela inofficiosi testamenti itself is also the matrix of the other two legal actions. The first chapter is intended to inquire the origin of the remedy against inofficiosum testamentum, which is related to the judging activity of centumviri. The second chapter is entirely dedicated to tracing the judicial discipline of querela inofficiosi testamenti, which could be proposed both to the centumviri through the agere sacramento rite or before the extra ordinem judge. The main features of inofficiosum testamentum are analysed in the third chapter: the active entitled, the statute of limitations, the subsidiarity, the retroactivity of rescinding effectiveness, the possible intervention and independent appeal by legatees and other beneficiaries of singular inheritance, the subordination to the failure to confer the legitime and its declaratory or constitutive nature. The postclassical developments of querela inofficiosi testamenti are examined in the fourth chapter by studying imperial constitutions from Diocletian age to Justinian age. The fifth chapter is focused on Justinian legislation about querela inofficiosi testamenti through the partition between the constitutions included in Codex repetitae praelectionis and the ones coming from Novellae. Ultimately, the sixth chapter describes querela inofficiosae donationis and querela inofficiosae dotis.