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  • Transmissibility of Delictual Claims
  • Harry Dondorp

Introduction: Three questions

In his magisterial survey of the law of obligations Reinhard Zimmermann writes that 'the canonists have always recognized the passive transmissibility of delictual claims'.1 In elucidation he quotes Henry of Susa's (Hostiensis) lecture on the Liber extra, completed about 1270: 'According to canon law the heir is liable as a consequence of the deceased's wrong, even if proceedings against him had not reached the stage of joinder of issue … and the crime does not benefit the heir'.2

The text, he recites, raises the first question. Have the canonists always recognized the passive transmissibility of delictual claims? For the text seems unsupportive. Note the different perspective. Zimmermann argues that a wronged person could bring a delictual claim against the wrongdoer's heirs. Hostiensis wrote that the heirs are liable as a consequence of a wrong, even though the culprit died before the joinder of issue, and despite the fact that they are not enriched by the wrong. Hostiensis thus contrasted canon law with the Roman rule as stated in Codex 4.17.1. This constitution of emperors Diocletian and Maximian, promulgated [End Page 145] in 294 AD, declared: The law is very absolute, that if a person, who was guilty of violence, extortion, or other offene, dies after joinder of issue, his successors are held liable for the whole sum due (in solidum), otherwise only for their gain (id quod ad eos pervenit), so that they may not be enriched by the crime of another person.3

Zimmermann and Hostiensis seem to describe two sides of the same coin: if heirs are liable 'in solidum', a delictual claim is brought against them. But in the eyes of the medieval jurists the heirs' liability and claimant's action were not that closely linked. Their exceptions to the rule in Cod. 4.17.1 indicate a different reading of Diocletian's constitution. If, for instance, a tenant had set fire to his dwelling, his heirs are liable against the landlord for the whole sum due. If someone had stolen a thing, his heirs are liable for the whole sum due that the owner claims under the 'condictio ex causa furtiva'.4 Cod. 4.17.1 was read as a general rule, limiting the extent of the heirs' liability to their enrichment by their testator's wrong, unless explicitly stated otherwise.

The fact that the canonists referred to a different rule in canon law, does not imply, that they recognized the passive transmissibility of delictual claims, as Zimmermann asserts. In 1903, the Austrian canonist Johann Haring (1867-1945)5 already [End Page 146] noted that Hostiensis' teacher, Sinibaldo Fieschi (Innocent IV), had reported several other interpretations of the papal decretals.6 Consequently, the first aim of this paper is to verify Zimmermann's assertion. What was the majority view among the medieval canonists?

The second question concerns his explanation, as to why the canonists recognized the passive transmissibility of delictual claims. Adopting the view of Johan Scott, Zimmermann expounds:7

The reason for this is quite interesting. Commission of a delict, of course, constituted a sin. Remission from this sin, according to canon-ist doctrine, required restitution ('peccatum non dimittitur nisi restituatur ablatum' VI De regulis iuris 4). The deceased wrongdoer was, unfortunately, no longer able to effect such restitution, and thus it was incumbent (at least 'in conscientia') on his heirs to save his soul from a prolonged sojourn in purgatory.

In substantiation he quotes from Justus Böhmer's Ius Ecclesiasticum Protestantium, published in 1715:8

Because the Roman church accepts as true that sins are not only purged in this life but also after death, as the doctrine of purgatory and offerings for the dead presupposes, the popes have also ruled, that [End Page 147] heirs, because of the damage caused by the deceased's wrong, are in conscience bound to restitution, without which his sin cannot be purged in the next life.

Again, it is the text he quotes, which raises a second question. Have the medieval canonists argued as Böhmer and Zimmermann assert? For certain, the maxim taken from Augustine, was well known. Gratian had...


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