ПОКЛОН ЗА СЛУЧАЈ СМРТИ У СРПСКОМ ПРАВУ
DONATIO MORTIS CAUSA IN SERBIAN LEGISLATION

Summary/Abstract: Donatio mortis causa is regulated in the Preliminary Draft of the Civil Code as a type of donation contract including the special agreement that it should be executed after the death of the donor. Donatio mortis causa thus understood is an inter vivos contract whose execution has been postponed until the death of the donor. It is an inter vivos contract, with a deferred term of indefinite duration. Such a contract creates an obligation relationship immediately upon conclusion, and can result in the forced fulfillment of the donor’s obligation. This understanding is contrary to the Roman understanding of donatio mortis causa. Donatio mortis causa produces legal effect only after the death of the donor; until the moment of his death, there is only a natural obligation (or moral obligation) of the donor not to cancel the contract. In addition, the Preliminary Draft Code must clearly state the condition that the donor must outlive the donor, since it is only from the moment of the donor’s death that the donor can request the gift to be handed over. Since this contract does not result in a classic obligation, which gives rise to rights and obligations for the contracting parties from the moment of conclusion, the donor is free to dispose of the object of the gift. Accordingly, the donor is free to revoke the gift, at any time, without giving any reason.

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