right was taken to be identical with that of the person represented, and that it therefore displayed the same characteristics as the latter: if the person represented had failed to become heir not because he had predeceased, but because he had renounced the inheritance, had been disinherited, or was unworthy to inherit, the same had to hold true for the person who was to step in as representative.66 This was sometimes summarized in the maxim ‘vivi nulla repraesentatio’, or, in the words of the Code civil of 1804, ‘On ne représente pas les personnes vivantes, mais seulement celles qui sont mortes.’67 In due course the concept of representation was desubstantialized, even though it has continued until today. Predominantly, it is no longer believed that the legal consequences of renunciation, disinheritance, or unworthiness follow logically from the ‘essence’ of representation: rather, they can be determined by the legislator one way or the other. Thus, there has been a general move away from the principle of ‘vivi nulla repraesentatio’.68 But then, one might as well abandon the concept of representation, as was indeed done by the German pandectists, who regarded it as ‘entirely unfounded and untenable’.69 The idea of succession per stirpes, prevailing in all Western legal systems, and endorsed by Justinian in Novel 118, 1, can and should be explained in a different way. The deceased’s children inherit per capita; the law of succession treats them on an equal footing.70 Each child usually starts its own family for which it is responsible and to which in the normal course of things its property will pass after its death. It would be distinctly odd, if the predecease of one of the deceased’s children were to have the consequence that the predeceased child’s children would lose 66 Corpus Iuris Civilis cum commentariis Accursii, vi: Index Iuris Civilis copiosus (Lyons, 1627) s.v. ‘Repraesentatio’: ‘Repraesentans eandem personam, et eadem privilegia habet.’ 67 For example, Joannis à Someren, Tractatus de Repraesentatione (Cologne, 1713) capIII, 1; Kohler 1876, 120–1; Code civil Art. 739 (1804). 68 See Kenneth G. C. Reid, Marius J. de Waal & Reinhard Zimmermann, ‘Intestate Succession in Historical and Comparative Perspective’, in Reid et al. 2007, 442–512 at 462–5. 69 Karl Adolph von Vangerow, Lehrbuch der Pandekten, ii (7th edn, Marburg: N. G. Elwert, 1867) § 414. 70 See, for example, Code civil Art. 744 (2); Codice civile Art. 566 (1); Código civil Art. 931 f (Spain); Art. 4:11 (1) BW; § 732 ABGB; § 1924 (4) BGB; Administration of Estates Act 1925 s 47 (1) (i). understanding the law in a historical and comparative perspective 249
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