Testamentary Freedom, Despotism And Fundamental Rights: A Critical Case Study On Drittwirkung

The theory of the horizontal effect of fundamental rights or Drittwirkung, according to which fundamental rights apply in relationships between private parties, is proclaimed as an innovative and enriching recalibration of private law. Illustrated by means of the issue of conditional bequests, it is argued that this claim is highly exaggerated. The innovation is merely of a terminological nature: fundamental interests have been taken into account since days of old, only to become rephrased more recently in terms of fundamental rights. As a rule, private law does not have to refer to fundamental rights to protect these interests. Moreover, within the horizontal dimension, fundamental rights are inadequate instruments, the application of which is unlikely to offer any additional value.