State’s Right to Escheat: Roman Law Perspective

Abstract

The issue of unclaimed property is of vital importance for the legislation of every state. Even in cases where the circle of heirs includes an unlimited number of relatives, the issue might not be resolved properly. With this regard, it is crucial to study and analyze the ways various jurisdictions govern the issue of an escheated property. 

In terms of state succession of unclaimed property, there are recently reformed jurisdictions upholding the Roman legal tradition (e.g., Brazil), however following a publicist approach which originated in the Middle Ages and developed in France and has so far been reinstated in the 2012 EU Regulation on cross-border succession, albeit from the private international law standpoint. The publicist approach does not consider the state’s rights and obligations to be equal to those of the heirs.

The opposite, privatist approach, dominating in Germany, Spain and Italy (to mention just few among many civil law states which have adopted it) recognizes the state as another legal heir. According to the author, this approach should be favored more. This statement is well-grounded if analyzed from a comparative historical perspective, thus paying due attention to the teachings of Roman law and adapting them to the modern reality.