Isolating the Pactum Successorium
![handle is hein.journals/soaf100 and id is 223 raw text is: ISOLATING THE PACTUM
SUCCESSORIUM
As is well known, South African law does not generally permit a
person to regulate the succession to his estate after his death by means
of a contract-succession agreements (pacta successoria or pacta de
succedendo) are invalid and unenforceable.1 This rule flows from the
general principle that on death, and after payment of outstanding
debts, an estate must devolve either according to the wishes of the
deceased as expressed in a valid will or, failing which, in terms of the
law governing intestate succession.' By way of exception to this
principle, however, a succession agreement embodied in an antenup-
tial contract is valid, as is a donatio mortis causa executed in com-
pliance with the formalities required for a valid will.'
The prohibition of pacta successoria comes to us from the Romans,
who viewed such contracts with extreme distaste, considering them to
be (a) gravely immoral and dangerous, in that they might evoke a desire
for the death of a contracting party, and (b) contrary to public policy, in
that they interfered with the principle of freedom of testation.' Al-
though there remains some doubt about the morality of succession
agreements-it is still an open question whether they are contra bonos
mores or merely invalid-the idea that they might be dangerous has
long since been rejected as fanciful.6 To the modern comparative
lawyer, aware of developments in other systems, the fact that an
agreement curtails a party's testamentary freedom might likewise not
appear to be a sufficient reason per se for striking the contract down; but
that is not the approach taken by our law. As appears very clearly from
the leading case of Borman en De Vos NNO v Potgietersrusse Tabakkor-
porasie Bpk,7 our courts still cling dearly to the principle of freedom of
testation, and will not uphold agreements which infringe that principle.
See Borman en De Vos NNO v Potgietersrusse Tabakkorporasie Bpk 1976 (3) SA 488 (A) and
authorities cited therein. The case is noted by Professor P van Warmelo in (1977) 40 THRHR
184. Academic writing on the subject is sparse, but see C PJoubert 'Pactum Successorium' (1961)
24 THRHR 18, 106, 177, 250, (1962) 25 THRHR 46, 93; R C Williams 'Pacta Successoria' (1969)
2 Responsa Meridiana 45 (cited hereafter as Williams); N J van der Merwe en C J Rowland Die
Suid-Afrikaanse Erfreg 3 ed (1977) ch IX; M M Corbett et al The Law of Succession in South Africa
(1980) 31-3 (cited hereafter as Corbett); J W Wessels The Law of Contract in South Africa 2 ed
(1951) edited by A A Roberts § 403-5 (cited hereafter as Wessels).
2 Borman's case (supra note 1) at 501.
a Corbett 31; Van der Merwe en Rowland op cit note 1 at 554.
Borman's case loc cit. ' See the cases cited by Corbett at 33n33.
See D G van der Keessel Praelectiones ad Gr 3.1.41 [Th 479] (Pretoria ed IV 30-3); Wessels
§ 405; Borman's case (supra note 1) at 501H.
7 1976 (3) SA 488 (A), especially at 501H, 502H, 504F and 508pr-A. See too Grobbelaar v
Grobbelaar 1959 (4) SA 719 (A) at 723D; VanJaarsveld v VanJaarsveld's Estate 1938 TPD 343 at 346;](ViewImageLocal?handle=hein.journals/soaf100&div=33&collection=&method=preview&ext=.png&size=3)
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Isolating the Pactum Successorium
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