Transmissibility of Delictual Claims

Abstract

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’. 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’. 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