Keywords
Testament, Creation of Real Rights, Transfer of Ownership, Registration, Kosovo, BGB, Code Civil
Abstract
The establishment of real rights over immovable property constitutes a central issue in contemporary civil law. This paper investigates whether a testament (testamentum) may function not merely as an instrument for the mortis causa transfer of existing real rights but also as a juridical title (titulus iuris) capable of constituting new real rights (constitutio iuris). The analysis emphasizes the doctrinal distinction between the transfer of ownership (translatio dominii) and the creation of rights (constitutio iuris) within the legal framework of Kosovo, further examined through a comparative lens with the German Bürgerliches Gesetzbuch (BGB) and the French Code Civil.
Drawing on authoritative sources, the paper contends that although testamentary dispositions are predominantly understood as mechanisms for transferring existing rights, they may, under defined conditions, serve as valid juridical titles for the creation of limited real rights, such as usufructs and servitudes, contingent upon formal registration. Kosovo’s legal regime, inspired by the German Eintragungsprinzip, treats registration as a constitutive act, thereby securing legal certainty, publicity, and the protection of third-party interests.
Repository Citation
Bedri Bahtiri and Kastriote Vlahna,
The Creation of Immovable Real Rights by Testament in Kosovo: A Comparative Approach,
18 J. Civ. L. Stud.
(2026)
Available at: https://digitalcommons.law.lsu.edu/jcls/vol18/iss1/8