Retrospective on the origin of the unilateral juridical act

Abstract

In this paper we tried to show that in civil law, if we admit the existence of the juridical unilateral act, its being is not due to the testament, which was seen over time as a simple state of affairs. To this end, we first examined the concept of legal act and tried to identify a criterion in order to delimit it from the legal fact. The conclusion was that the distinction between these two categories is based on the will required in order to have legal effects, but taking into consideration only those effects that are characteristic of the specific act, namely those related to its cause.

 After that, we made a brief foray into Roman law and, analyzing testamentary forms accepted by the Romans, we concluded that the will was not born as a legal act and has not been included in this category. The problem of the legal nature of the testament was not questioned at that time as long as it represented a figure that could not be legally treated in the same way as the mechanisms that were included in the category of the sources of obligations. Testament is remarkable in that it never produces effects in respect of its author, unlike juridical unilateral acts which always have bilateral effects. Another important aspect is that in matters of succession, the situation is different from the classical scheme of generating legal effects through one’s will.