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6 Roman Legal Trad. 1 (2010)

handle is hein.journals/rltrad6 and id is 1 raw text is: Benignior interpretatio: Origin and Transformation of a Rule of Construction in the Law of Succession Martin Avenarius* Abstract - This article discusses the origins and development of the benevolent interpretation of wills. Modern law tends to construe a will, as far as possible, in a way that gives effect to the testator's intention and consequently avoids intestacy. This principle derives from a historical development which traces back to a Roman concept of benignior interpretatio, established by Ulpius Marcellus in the second century AD in a case where the testator's intention was unclear and the results of possible interpretations were even contradictory. Marcellus suggested interpreting the testator's behavior with regard to his intention, in so far as it can be ascertained, at least partially, as a hypothetical intention. On the basis of an evaluative judgment Marcellus found a solution which is, as far as possible, in the testator's interest (benignior). 1. Introduction The principle of benevolent interpretation of legally significant statements is probably known to all developed legal systems. In the continental European legal tradition it is commonly traced back to Roman law. Numerous legal rules established in the history of its reception mark the consolidation of this principle in different variations. On closer examination the tradition leading Dr. iur., Professor of Civil Law, Roman Law and History of Modern Private Law, and Director of the Institute of Roman Law, University of Cologne. I am grateful to Mr. Neil Burtoft (London/Cologne) for the English version of the text, Thanks to the kind permission of my colleagues Prof. John W. Cairns and Dr. Paul du Plessis, I was able to present it to the Roman Law Group at the University of Edinburgh on May 14, 2010. The present version was improved by helpful remarks of Prof. Ernest Metzger. Roman Legal Tradition, 6 (2010), 1-21. ISSN 1943-6483. Published by the Ames Foundation and the University of Glasgow School of Law. This work may be reproduced and distributed for all non-commercial purposes. Copyright 0 2010 by Martin Avenarius, All rights reserved apart from those granted above. ROMANLEGALTRADITION.ORG

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