Guide des successions et des donations: La théorie et la pratique (French Edition)

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Renunciations in Public Law Analysis Under construction. Medal commemorating the reciprocal renunciations of 19th c. On the reverse, France and Spain each holding a shield with their arms lay their hands on an altar to take an oath. The legend reads "Saluti Publicae" for public salvation. He was a duke-peer, well placed at the court, and also an intimate of the duc de Bourgogne, Louis XIV's grandson.

After Philip V's renunciations to the French crown, he was asked to write a memorandum on the formalities with which these renunciations should be received and registered in France to make them irrefutable. His memorandum begins with a brief recapitulation of the necessity and possibility of the renunciations; this is the text presented here.

The rest of the memo which is very long argues that, since the renunciations amount to a change in the laws of succession, they can be implemented only by those with "legislative and constitutive power. Saint-Simon's description of the choice of Philippe de Valois as successor demonstrates clearly his view that this represented an unexpected change in the succession law see below. Les deux Rois y consentent: Esprit des Lois translation by Th.

Charles-Louis de Secondat, baron de Montesquieu was one of the most important contributors to political theory. That we ought not to decide by the Rules of the civil Law when it is proper to decide by those of the political Law. Most difficulties on this subject may be easily solved by not confounding the rules derived from property with those which spring from liberty. Is the demesne of a state or government alienable, or is it not? This question ought to be decided by the political law, and not by the civil.

It ought not to be decided by the civil law, because it is as necessary that there should be demesnes for the subsistence of a state, as that the state should have civil laws to regulate the disposal of property. If then they alienate the demesne, the state will be forced to make a new fund for another.

But this expedient overturns the political government, because, by the nature of the thing, for every demesne that shall be established, the subject will always be obliged to pay more, and the sovereign to receive less; in a word, the demesne is necessary, and the alienation is not.

The order of succession is, in monarchies, founded on the welfare of the state; this makes it necessary that such an order should be fixed to avoid the misfortunes, which I have said must arise in a despotic kingdom, where all is uncertain, because all is arbitrary. The order of succession is not fixed for the sake of the reigning family; but because it is the interest of the state that it should have a reigning family.

The law which regulates the succession of individuals is a civil law, whose view is the interest of individuals; that which regulates the succession to monarchy is a political law, which has in view the welfare and preservation of the kingdom. It follows hence, that when the political law has established an order of succession in government, and this order is at an end, it is absurd to reclaim the succession in virtue of the civil law of any nation whatsoever. One particular society does not make laws for another society.

The civil laws of the Romans are no more applicable than any other civil laws. They themselves did not make use of them when they proceeded against kings; and the maxims by which they judged kings are so abominable that they ought never to be revived. It follows also hence, that when the political law has obliged a family to renounce the succession, it is absurd to insist upon the restitutions drawn from the civil law.

Restitutions are in the law, and may be good against those who live in the law: That when, by some Circumstance, the political Law becomes destructive to the State, we ought to decide by such a political Law as will preserve it, which sometimes becomes a Law of Nations.

I have said [ See v. We know that it is for the interest of the state to have the supreme magistrate within itself, that the public revenues be well administered, and that its specie be not sent abroad to enrich another country. It is of importance that he who is to govern has not imbibed foreign maxims; these are less agreeable than those already established. Besides, men have an extravagant fondness for their own laws and customs: It follows hence, that if a great state has for its heir the possessor of a great state, the former may reasonably exclude him, because a change in the order of succession must be of service to both countries.

Thus a law of Russia, made in the beginning of the reign of Elizabeth, most wisely excluded from the possession of the crown every heir who possessed another monarchy; thus the law of Portugal disqualifies every stranger who lays claim to the crown by right of blood. But if a nation may exclude, it may with greater reason be allowed a right to oblige a prince to renounce.

If the people fear that a certain marriage will be attended with such consequences as shall rob the nation of its independence, or dismember some of its provinces, it may very justly oblige the contractors and their descendants to renounce all right over them; while he who renounces, and those to whose prejudice he renounces, have the less reason to complain, as the state might originally have made a law to exclude them.

Jean Barbeyrac was professor of law and history at the Academy of Lausanne, and was the translator into French of Brotius and Pufendorf, the founders of modern international law.

Renunciations to Future Successions in pre-1789 French Law

This passage comes from the notes to his translation of Hugo Grotius: Le Droit de la Guerre et de la Paix , Amsterdam, Pierre de Coup ; cwto Book II, ch. He is commenting a passage where Grotius asserts that, in kingdoms where the succession is a matter of law and not inheritance, one cannot renounce for one's children born or unborn, although unborn children can be deprived of their eventual rights by the People. English translation by J. His Treatise is one of the most important works in early international law. A nation may change the order of the succession. It thus remains an undeniable truth, that in all cases the succession is established or received only with a view to the public welfare and the general safety.

If it happened then that the order established in this respect became destructive to the state, the nation would certainly have a right to change it by a new law. Salus populi supreme lex, the safety of the people is the supreme law; and this law is agreeable to the strictest justice, the people having united in society only with a view to their safety and greater advantage.

This pretended proprietary right attributed to princes is a chimera, produced by an abuse which its supporters would fain make of the laws respecting private inheritances. The state neither is nor can be a patrimony, since the end of patrimony is the advantage of the possessor, whereas the prince is established only for the advantage of the state.

The authors, whom we oppose, grant this right to a despotic prince, while they refuse it to nations.

This is because they consider such a prince as a real proprietor of the empire, and will not acknowledge that the care of their own safety, and the right to govern themselves, still essentially belong to the society, although they have intrusted them, even without any express reserve, to a monarch and his heirs. In their opinion, the kingdom is the inheritance of the prince, in the same manner as his field and his flocks — a maxim injurious to human nature, and which they would not have dared to advance in an enlightened age, if it had not the support of an authority which too often proves stronger than reason and justice.

A nation may, for the same reason, oblige one branch who removes to another country, to renounce all claim to the crown, as a daughter who marries a foreign prince These renunciations, required or approved by the state, are perfectly valid, since they are equivalent to a law that such persons and their posterity should be excluded from the throne.

Thus the laws of England have for ever rejected every Roman Catholic. Some celebrated authors, in other respects very learned and judicious, have then deviated from the true principles in treating of renunciations. But they ought to have considered the succession less as a property of the reigning family, than as a law of the state. From this clear and incontestable principle, we easily deduce the whole doctrine of renunciations. Those required or approved by the state are valid and sacred:.

They cannot injure his posterity, and he himself may recede from them in case the state stands in need of him and gives him an invitation: For the same reason, the prince cannot lawfully resign at an unseasonable juncture, to the detriment of the state, and abandon in imminent danger a nation that had put itself under his care. Nimirum, quod publicae salutis causa et communi consensu statatum est, eadem multitudinis voluntate, repus exigentibus, immutari quid obstat? Juan de Mariana, de Rege et Regis Institut. Spirit of Laws, book xxvi. The volume from which the following two entries are taken was published in Both entries were written by the Louis de Jaucourt , the most prolific contributor to the project 17, entries to his credit.

Renonciation , Droit politique. Renunciations in private law Analysis Relevance of private law One might doubt whether private law is of any relevance to constitutional law. Renunciations in existing European private laws It is true that the French Civil Code , promulgated in , does not allow renunciations to future successions currently in art.

Over and above, the text that defines a "fiscal settlor", other one than an initial settlor, to allow the application of law in the course of future transfers: The definition of the word settlor is therefore very wide because it can include the ascendants of a current beneficiary. The beneficiary can be a person with or without a hereditary tie with the settlor or a legal person entity, body, foundation, etc.

The legislator establishes a definition following the nature of the taxation. The beneficiary of the trust will be in practice an individual person, an heir or a dedicated benificiary, but the text also plans the situation in which the beneficiary will not be a descendant but another physical or legal person. The law applies however only if the beneficiary is an individual person.

Only the physical persons constituting or profiting by way of a trust are subject to this taxation and not any other private or public entity or moral persons. To allow the application of the new fiscal rules, a new article AB of the CGI imposes new filing and disclosure obligations relative to trusts. The following trusts necessitate to be declared: The legislation is applied where it is defined by the law and before any possible administrative amendments, this is extremely wide and therefore includes all trusts even charitable which have a tie with France at even though when they could be subjected to no taxation.

The statement concerns the following: The assets and rights that must be declared are the those relating to application the forfeit tax on trusts. Object of the new article J of the CGI.

Personnes concernées

A Government act will fix the application of the new legislation. This is a very high level, corresponding to ten years of the tax forfeit and on top of this based on the all the assets of the trust, whether or not they are taxable to the Wealth tax or subject to the new undertaking of the article J.

The article V New section of the CGI specifies that the fine will be due in joint and severally by the administrator that is the trustee and by the settlor and the beneficiaries of the trust. The new text limits the taxation only to the distributed income. This allows the ability to exempt revenue reinvested in the trust. Both for inheritance and gift taxes, and for the French tax on capital Wealth tax , the legislator looked for the weaknesses in the current system: How are the trustees going to react?

The subject is delicate enough and it is a question of individual ethics and business principals. The text states that the jurisdiction relating to the transmission of assets and rights constituting the trust, is interpreted under French tax law, as a gift or a transfer on demise.

The new article bis II defines the tax treatment of trusts for gifts and inheritance tax. In this case, the inheritance, including the assets initially placed in the trust, will be taxed on their market value at the date of the transmission, i. Several situations are considered: It is necessary to be clear that the direct transfer of properties assets or rights placed in a trust the follow rules applies: The legislator plans an approach as much as possible by way of the common law, by considering the death of the settlor automatically makes or initiates the transfer. The assets, the rights placed in a trust, are passed on to the beneficiaries at the death of the settlor without being integrated into their inheritance although possibly staying in the trust after the death of the settlor, which are subject to inheritance taxes in the following conditions: French list of the none cooperative states for Established in April 14th, , JO in April 29th, , p.

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The text does not aim at the law of the place of residence of the trustee but at the law to which the trust is subjected to. These rules are presented summarised below: Defined share of a beneficiary.

Not defining a gift or a inheritance. Assets remaining in the trust.

The text adapts to trusts the rules of territoriality applicable to the law of inheritance as defined by the article ter of the CGI. This measure outlines the application of the new rules of taxation of assets held in trusts or passed on according to modalities which cannot be likened to a gift or to a inheritance. The new law completes the article CGI, so as to widen the presumption of assets or rights placed in a trust. In French tax law, the beneficiary of a succession or a gift is liable legally to pay, if necessary with joint and several liability with the heirs.

Concerning the taxation of a transfer by way of a trust, the legislator has modified the traditional principle in the French tax system by engaging the administrative and financial responsibility of the trustee in a large number of situations planned by new article bis of the CGI. The legislator put in the front line the filing obligation and financial responsibility of the trustee being the visible administrator of the trust and with whom is established a joint fiscal liability with the beneficiary established in France, in two situations.

The administrator is established either in a non cooperative state or in a state not having concluded with France an agreement of mutual assistance in collection of taxes for example Switzerland as well as other numerous States. The ownership of assets through a trust was ambiguous in French law at the level of the French taxes on capital Wealth tax.

The legislator therefore proposes on one hand, to put a general principle of applicability into Wealth tax the assets and rights placed in a trust as well as create a forfeit taxation on trusts to be able to tax the assets which would not have been declared to the tax authorities in relationship to Wealth tax. In both situations, the taxation is due only if the constituent is an individual person.

The new article G ter CGI plans that the assets placed in a trust are included in the taxable asset for Wealth tax of the settlor if an individual person for their net market value on January 1st of each year of taxation. The text creates an obligation to declare the trust by the trustee and, even in the case or the settor is not liable for wealth tax on the assets considering the taxable net value of the estate, this includes assets as well as rights that were placed in the trust.

Plainly in all situations, the administration will be informed about assets held by a trust and in addition the deemed to be beneficiaries and settlors.

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An exception for charitable trusts or similar. These provisions do not apply: The fiscal qualification on assets is maintained. In view of the rules of territoriality applicable to Wealth tax, where the assets are placed in a trust the settlor which is a French fiscal resident would be taxed wherever the assets are situated, as well as those situated in France and placed in a trust where the settlor is not a fiscal French resident [1].

For the French legislator, it is not a question of creating a complex definition as to assets placed in a trust, but of defining a overall tax, joint and severally due by the trustee, the settlor and the beneficiaries of the trust. The new article J CGI outlines: The physical persons settlors or those benefiting by way of a trust defined in the article bis CGI are subjected to a liability at the highest threshold of Wealth tax. Only the physical persons settling or benefiting by way of a trust are liable to this obligation and not other private or public entities or moral persons.

In practice, real person liable will be the trustee because the text specifies: In the case of not filing and paying the tax, the settlor and the beneficiaries, are jointly responsible for the payment of the tax except when the trust was regularly declared to the Wealth tax by the settlor either regularly declared by the trustee within the framework of its general obligations.

The article J of the CGI creates a specific tax covering the assets placed in trusts which have not been declared in conformance with the Wealth tax. This tax is based on the market value on January 1st of every year: It is therefore on the same basis as for the Wealth tax in conformity with assets or rights held through trusts, to which, however, will not apply the exemptions resulting from the nature of the assets such as works of art and the professional assets.

Patrick Michaud ,ancien inspecteur des impôts, avocat fiscaliste à Paris

This taxing estates not having been declared for taxation to Wealth tax. All physical persons should declare assets or the rights placed in trusts to the tax authorities within the framework of a declaration of Wealth tax because: The new tax applies when these assets, undeclared, are "discovered" by the tax authorities. There would be considered as dissimulation of these assets. The tax is equal to the maximum rate of wealth tax being 0. The law provides several exceptions but as with a general condition:

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