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10 ICJ 1 (2024)

handle is hein.journals/icjuris10 and id is 1 raw text is: International Comparative Jurisprudence 2024 Volume 10 Issue 1 ISSN 2351-6674 (online) DOI: hpj/doo/1OJ3165ici.224.OiO0l MykolasRomens International COmparative Jurisprudence University THE LEGAL POSITION OF THE TRUSTEE AND THE TERMS OF SUCCESSION TO FAMILIAL FIDEICOMMISSA IN LIGHT OF THE LITIGATION SURROUNDING THE RADZIWILL PRINCES' ENTAILED ESTATES DURING THE INTERWAR PERIOD Tomasz Kucharski2 Nicolaus Copernicus University in Torun, Poland Email: t kucharski@urmk.vl Received: 2 March 2024; accepted: 6 May 2024 DOI: httPs://dbi.org/10.13165/ci.2024.06.001 Abstract: This article is devoted to an institution of European civil law known as familial fideicommissa, through which the status of familial estates could be modified to protect a particular family's position and wealth. In this system, ownership of the estate was transferred to the whole family, and one male member was appointed as a 'trustee'. The assets of this property were not subjected to standard inheritance law provisions and were excluded from other general civil law rules, and the trustee was not allowed to sell the estate, burden it with debt, or include it in his will. The article focuses on practical aspects of the functioning of familial fideicommissa in the interwar period. The author analyses five court cases associated with three instances of fideicommissa from the Radziwll family, which are reconstructed from historical archival documents deponed in the Lithuanian State Archive in Vilnius. The author focuses on highlighting problems in the interpretation and implementation of the legal provisions of the Third Lithuanian Statute (1588) and the Digest of Laws of the Russian Empire (1832) on familial fideicommissa by Polish courts. Keywords: history of civil law, familial fideicommissa, Third Lithuanian Statute (1588), Digest of Laws of the Russian Empire (1832), court case files, case study, interwar Poland, Radziwill family. Introduction The subject matter of this article is the practical functioning of the familial fideicommissum (fee tail, entail or entailment, Polish: ordynacja rodowa), a specific institution of European civil law under the interwar Polish Republic. As a result of specific historical circumstances, different legal systems were in force in the various parts of the country: Prussian-German, Austrian, Russian, and French. Each of these systems regulated the institution in question in a somewhat different way. Notwithstanding the structural differences in the provisions of the various codes, fideicommissa constituted a homogeneous legal institution deeply rooted in the broad European civil law culture. Its typical characteristics included: 1) the purpose of preserving a family's holdings intact for future generations, guaranteeing that suitable social status is maintained; 2) a common procedure and form of creation - they were created by a legal act of the founder (founding charter), requiring the approval of the state authority; 3) a formula of ownership - the family as a whole was the owner. A fideicommissum always went to one particular male of the family in line with the founding charter. That person, however, was not the owner, but only a 'trustee' of the fideicommissum (holder, possessor, beneficial owner, the beneficiary of an in-rem right, etc.), with only the right to enjoy the use and the benefits (fructus) of the property; i This article was prepared for the 'Family fideicommissa in the Second Republic of Poland in the light of civil court judgments. History of the functioning of a feudal legal institution in the legal system of a modern state' research project, financed by the Polish National Science Centre (NCN), OPUS 14 Programme, No. 2017/27/B/HS5/02679. 2 PhD in Law, assistant professor at the Faculty of Law and Administration at Nicolaus Copernicus University, 3 Wladyslaw Bojarski Street, 87-100 Torun, Poland. Research interests: history of the parliamentary system of the Polish-Lithuanian Commonwealth (1569-1793) and the organisation and functioning of Polish courts in the interwar period. 1

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