Dopuszczalność umowy zrzeczenia się zachowku. Glosa do uchwały Sądu Najwyższego z dnia 17 marca 2017 r. (III CZP 110/16)

Abstract

The Supreme Court in its resolution adopted on 17th March 2017 r. (III CZP 110/16) indicated that “It is admissible to conclude a contract on a waiver of legitime (Article 1048 of the Civil Code)”. So far this matter has been presented diversely in the law doctrine, with the majority of voices in favour of the admissibility of such contract. A legal basis of this institution has been deduced from the provision enabling to conclude a contract on a waiver of succession, using a maiori ad maius inference – if it is permitted to waive of succession, it may also be permitted to waive of legitime, which is a right that derivates from the right of succession. The argument for the admissibility of the contract on a waiver of legitime is enlarging the freedom of a person to dispose of their assets aft er death. Concluding such a contract is particularly essential when a sole proprietor makes a succession plan for his enterprise. The Supreme Court’s standpoint should be assessed positively, it emphasizes the signifcance of freedom of succession in all institutions of inheritance law.