We understand that one of the sources of the law of Louisiana is French civil law.
40 Dictionary.com gives the source of the two definitions above as the 1996 edition of Merriam-Webster's Dictionary of Law. The site also gives cross-references to the expression "universal successor" in the well-known volume by Oliver Wendell Holmes entitled The Common Law. In the 1963 DeWolfe Howe edition of Holmes' book, there are references to "universal succession" at pp 269 and 281. The first reference is in the section entitled "Successions after Death" and notes that executors and administrators "afford the chief, if not the only, example of universal succession in English law". It is explained however that such successors do not succeed to all kinds of property because, although the personal estate goes to them, land takes another course. At p 281 there is reference to "universal successor" in the section entitled "Successions Inter Vivos" in the context of Roman Law. It is noted there that, in general, universal successors stand in the place of heirs, and the Roman heir, with one or two exceptions, was always a universal successor.
41 Reference should be made to the judgment referred to by Haylen J: that is, the judgment of Fry J in Corporation of Hyde v Bank of England (1882) 29 Ch D 176. It will be recalled that his Honour dealt (at [36]) with that case in the following way:
I accept the force of the prosecutor's submission that the term "universal successor" in the Regulation is something more than a "successor" simpliciter. As far back as 1882, Fry J found that when a district of a local Board was incorporated as a Borough, all the property of the Board vests at once in the Corporation without the necessity of any conveyance or transfer. In reaching this view, Fry J was able to say that it was obvious that the general scope and intention of the clauses was to make the Corporation "the universal successor to the local Board - to place it as regards all its powers, and as regards all its property also, entirely in the same position as the local Board". I do not see anything in the various provisions and definitions that were provided to the Court which would detract from that proposition in this case: Country Energy stepped into the shoes of Advance Energy for the purposes of continuing the business of that entity and to act in its name. Interestingly, Country Energy could take proceedings in the name of Advance Energy under Clause 7(3) of the Regulation.
42 It is however important to note precisely what Fry J said in relation to the notion of "universal successor". It appears from the report that his Lordship's use of the expression was as a shorthand description of the very detailed transitional provisions contained in s 310 of the Public Health Act 1875 (UK). The expression "universal successor" was not used in the section. Specifically, what his Lordship referred to was that the intention of the clauses in making the successor corporation the successor to the local Board was "to place it as regards all its powers, and as regards all its property also, entirely in the same position as the local Board". As to construction of other parts of the provisions vesting property and powers in the corporation his Lordship considered that the provisions should not receive a narrow construction "but in its true meaning it appears to me to extend to everything in the nature of property which, if the Act had not passed, would have come to the hands of the Board". It will be seen that his Lordship in referring to the corporation as the "universal successor", was merely referring to it as being the donee or recipient of plenary powers and property rights. Again, there is nothing in his Lordship's judgment in Corporation of Hyde v Bank of England which would indicate that anything that his Lordship said was to be construed as extending to the transfer or assumption of criminal liability. Certainly, the judgment has no more then indirect relevance to the present issue.
43 It is clear that the concept of "universal successor" is one derived from the Roman Law and utilised in Civil Law systems. The concept was discussed in some detail by Viscount Simonds in National Bank of Greece and Athens v Metliss [1958] AC 509 at 524 - 525:
The question is rather one of principle and analogy, though analogies are dangerous and principles difficult to state with precision. The analogy, which has found some favour with the courts below and is not without its use, is in the conception of universal succession. That is a conception of the Roman law which found its way into many systems of law including, as my noble and learned friend, Lord Keith of Avonholm, has pointed out, the law of Scotland. It may be assumed that the Greek legislature, using the words "universal successor" in the relevant Act, was looking to the familiar principle under which the heir was the universal successor of his testator and regarded as eadem persona cum defuncto, and was asserting the identity of the new company with the old. But I do not care to rest my opinion on a conception which is, at the least, artificial. The fact is that the new company is a new juristic entity which was not a party to any contract with the respondent, and I do not think that, when a competent legislature has created a corporation and vested in it all the powers, assets and liabilities of an old corporation, which is then dissolved, anything is added by a further reference to universal succession, unless, indeed, it can be said that such a reference makes the path seem more familiar and, therefore, easier.
In the same way it is easier to recognise the validity and efficacy of such a transfer if one recalls the many examples of statutory amalgamation of undertakings in this country and, no doubt, in other countries. It might be said that it has become a commonplace feature of commerce and industry in the modern state that such amalgamations should take place, and that it has become a matter of comity to recognise them except in so far as they are in conflict with the positive law of the country where it is sought to give effect to them.
44 The reference by Viscount Simonds to the speech of Lord Keith is to the following part of his Lordship's judgment, at 530:
I find it easier, however, to approach the matter from the point of view of succession. The appellants were expressly declared by the relevant Greek statute and subsequent royal decree to be the "universal successor" of the banks which were absorbed and extinguished by the amalgamation decree. This conception, as expounded in the evidence in this case, is common to other legal systems which have borrowed from the Roman law. Used generally with reference to an heir who takes up a succession on death, it carries with it a liability on the heir to the deceased's creditors for the deceased's debts. From this aspect he represents the deceased. The persona of the deceased is regarded as continued in the heir, or, as it is otherwise expressed, he is eadem persona cum defuncto. He is no more to be regarded as a new party introduced into a contract than is an executor or administrator of a dead man's estate in English law. The term "universal successor" may be foreign to English law but it cannot be regarded as strange in this House for the doctrine is part of the common law of Scotland, though now affected by statute, and, till within the last hundred years, had important consequences to the heir in a succession. As such the doctrine would not appear to have differed in its fundamental principles from the common law of Greece. I would quote only one short passage from Stair, III.4.23: "Heirs in law are called universal successors, quia succedunt in universum jus quod defunctus habuit, they do wholly represent the defunct, and are as one person with him, and so they do both succeed to him active, in all the rights belonging to him, and passive, in all the obligations and debts due by him."
45 Both of the judgments use the Latin phrase eadem persona cum defuncto (the same person as the deceased) as equivalent to, or synonymous with, the expression "universal successor". This might, at first glance, seem to support the contentions of the respondent. Two considerations must however be noted. First, the contexts in which both expressions are used are commercial contexts dealing with succession to property or to rights and liabilities under contract. Second, the analogy which led to the use of the Latin phrase was that of "an heir who takes up a succession on death". An heir, or executor or administrator in Anglo-Australian law, does not, on the death of the testator, succeed to the testator's liability for criminal acts or to criminal proceedings commenced against the testator before his demise.
46 Lastly, reference may be made to the judgment of Colman J sitting in the Queen's Bench Division (Admiralty Court) in Centro Latino Americano de Commercio Exterior S.A. v Owners of the Ship "Kommunar" (the "Kommunar") (No. 2) [1997] 1 Lloyd's Law Reports 8. The facts of that case need not be considered in detail. It concerned Admiralty proceedings where the defendants, whose vessel had been arrested, applied to have the arrest set aside on the basis that the defendants were not, at the time the relevant cause of action arose, the owner or charterer of or in possession of any ship or the defendants were not the party liable in personam on the claim. This issue required consideration of legal succession issues as to the ownership of the vessel arising from the privatisation of a Russian state enterprise. Colman J considered a number of decisions of the House of Lords in which the expression "universal successor" was referred to, being Adams v National Bank of Greece [1961] AC 255 and the judgment earlier referred to, National Bank of Greece and Athens S.A. v Metliss. In that context, his Lordship made this observation:
It is clear from Adams v. National Bank of Greece , [1961] A.C. 255 that Metliss is to be treated as a case where the English Courts recognized the effect of the universal succession prescribed by the Greek legislation as being to make the successor bank the party which in the eyes of English law was to be treated as liable for the debt following upon the coming into effect of the legislation. That is not to say that the successor company was the same legal entity as the original debtor but rather that it became the transferee under Greek law of the assets and liabilities of the latter corporation. (emphasis added)
47 The extract from the judgment of Colman J usefully synthesises the various references to the expression "universal successor" earlier in these reasons. It also shows that notwithstanding the width of the expression, it does not mean that the successor body is the same legal entity as its predecessor but merely that it has certain legal attributes of the predecessor.
48 In summary on this issue, we consider that there is nothing in any of the references to "universal successor" either in clause 7 of the relevant Regulation or in any of the definitions or cases referred to which would indicate that, notwithstanding the width of the expression "universal successor", the use of that expression was intended by the legislature or the maker of the Regulation to result in Country Energy being the same legal entity as Advance Energy, to result in the "transfer" of criminal liability from Advance Energy to Country Energy or (to put the last proposition in a slightly different way) to result in the assumption by Country Energy of any criminal liability on the part of Advance Energy.
Successor provisions in other statutes and in the Occupational Health and Safety Act 2000