15. 11. 2016

Repeal of Article 184 of the Code of Obligations

Article 184 of the Code of Obligations (OZ), which provided the conditions for the transfer of the decedent's assets to the heirs, was repealed by the Constitutional Court’s ruling no. U-I-213/15-13.

The repealed article stated that “a claim for the reimbursement of immaterial damage shall pass to heirs only if it was recognised by a final legal ruling or a written agreement”, and that under equal conditions such claims may be the subject of assignment, offset and execution. This article was declared unconstitutional by the Constitutional Court on 15 October 2016.

The Constitutional Court took the position that inheriting claims for non-pecuniary damage, which is reflected in the suffering of the victim (mental or physical pain due to an interference in certain legally protected goods, fear or other disadvantages), and for which the court will award fair monetary compensation, should not be subjected to the finality of the judgment. The reason is that the injured party (the deceased) cannot affect the duration of court proceedings, as the duration depends on circumstances outside the control of the deceased’s actions. Therefore, it makes sense that heirs inherit such claims (and continue the procedures for their exercise thereof).

For example, successors can now inherit a claim that the deceased had against an insurer which arose from mental or physical pain (for example, following an accident), or claims against a third party for defamation or slander if the deceased had already filed a lawsuit prior to his/her death. The Constitutional Court did not rule on whether a claim can be inherited even when the deceased expressed his/her will for the enforcement of monetary claims out of court (by addressing a request for reimbursement to the offender, an insurance company or otherwise), because this question is considered a matter of appropriateness of the statutory regulation. The Constitutional Court therefore left the powers to address this last issue to the legislator.

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