Presumptions of Survivorship or Simultaneous Death in Cases of 'Common Calamity': Scots Law Against the Background of European Legal Developments

Abstract

The property of a deceased person can pass only to someone who has survived him or her. It can, however, turn out to be impossible to establish the order of death, particularly if both persons have died in a common peril or "calamity". In the sources of Roman law we find two survivorship-presumptions relating to the simultaneous death of parent and child as well as a number of decisions concerning other, individual case scenarios. On that basis, the French Code civil of 1804 established a complex set of presumptions based on age and sex. The rules in the codifications of the German-speaking countries were much more straightforward, for they established a presumption of simultaneous death. The present article traces the interpretation and reform of the various presumptions. And it traces the development of Scots and English law against the background of continental European law of which the Scots and English courts had a somewhat skewed perspective. Since the position at common law was regarded as unsatisfactory, in both legal systems the legislator has intervened.

Note: This contribution is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, Avizandum.

Keywords: commorientes, dying in quick succession, reception, Scots law, survivorship presumption