Passive intransmissibility

(a) Canonist doctrine

Another domino was bound to fall sooner or later: the Roman rule that the Aquilian action was passively intransmissible.^[5312] Unless legal proceedings against the wrongdoer had already reached the stage of litis contestatio (in which case the wrongdoer's death no longer affected the enforceability of the claim^[5313]), the heir was liable only for any enrichment derived from the delict (id quod pervenit^[5314]).

"[S]ecundum canones tenetur haeres ex delicto defuncti, etiam si cum ipso lis non fuerit contcsrata... ct quamvis ex delicto nihil pervenerit ad Jcundem]."^[5316]"

The reason for this was rather interesting. Commission of a delict, of course, constituted a sin.^{[5317] [5318] Remission from this sin, according to canonist doctrine, required restitution ("peccatum non dimittitur, nisi restituatur ablatum").132 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:}

"Quia vero ecclesia Romana non tantum in hac vita, sed etiam post mortem peccata dimitti credit, ceu doctrina de purgatorio ct de offertorio pro defunctis praesupponit, inde etiam ex hoc principio constituerunt pontifices, heredes in genere ob damnum a defuncto per delictum datum obstringi in conscientia ad id restituendum, quod absque hoc medio in altera vita peccatum dimitti non possit."^{[5319] [5320]}

This result was even brought into line with Roman doctrine. The deceased would normally have received absolution before his death.

(b) Forum civile

For a long time such arguments did not really commend themselves to the civil lawyers; a certain reluctance seems to have prevailed to accept the canonist intruder, where the rule of Roman law was not obviously morally intolerable.¹⁵⁴ Once one had realized that the real reason for the intransmissibility of the actio legis Aquiliae (its penal character) had fallen away, however, it was only natural to turn to canon law for guidance. Vinnius rather cautiously asserted "quod cum jure Canonico primum cautum esset... propter aequitatem etiam in foro civili receptum videtur",^[5321] but Thomasius put it more bluntly when he asked:

"Quid ergo de moribus hodiernis hoc respectu dicendum? Respondendum, cum actio hodierna de damno dato sit actio fundata in aequitate Canonica etJure Gentium: ideo actio hodierna dabitur contra heredes."^[5322]"

This in fact remained the rule.^{[5323] [5324]}

6.