literally signifies “that which
falls ;” thus glans caduca,
Gaius (Dig. 50
, tit. 16, s. 30), is the mast which
falls from a tree.
in its general sense, might be anything
without an owner, or what the person entitled to neglected to take (Cic. de Or. 3.3. 1
10.5); but the strict legal sense of caducum
and bona caduca
is that stated by Ulpian (Fragm.
tit. xvii. de caducis
), which is as follows:--
If a thing is left by will to a person, so that he might take it by the
but from some cause does not
take it, that thing is called caducum,
as if it
had fallen from him; for instance, if a legacy was left to an unmarried
person, or a Latinus Junianus,
unmarried person did not within a hundred days obey the law (i. e. by
marrying), or if within the same time the Latinus
did net obtain the Jus
or if a heres ex parte
a legatee died or became a peregrinus
the opening of the will, the thing was caducum.
or lapse of a devise, implies that a
valid devise has been made, which the devisee is unable or unwilling to
take: thus caduca
are opposed to devises which
are void, ea quae pro non scriptis habentur.
further implies that the will of which
the lapsed devise is a part has come into operation. Strictly speaking, a
devise which failed in the testator's lifetime was not caducum;
it was, however, treated like a caducum,
and so said to be in causa
(Cod. 6.51, 2; cf. Code Civil,
Either a share of an inheritance or a particular legatum
might become caducum.
law alluded to in the passage of Ulpian cited above is the Lex Julia et
Papia Poppaea. This law, which was passed in the time of Augustus (A.D. 9),
had the double object of encouraging marriages and enriching the
(Tac. Ann. 3.25
), and contained with reference
to these two objects a great number of provisions. Martial (5.75
) alludes to a person who married in order to
comply with the law.
The Lex Papia altered the law relating to the devolution of caduca.
Under the previous law (jus antiquum
) a portion of an inheritance which lapsed
accrued to the entire inheritance, and so belonged to the coheredes;
lapsed accrued to collegatarii
in certain cases,
otherwise the heres
was freed from the
obligation of paying it.
By the Lex Papia, only parents or descendants of the testator to whom he had
left his inheritance were allowed to retain their rights to caduca
under the old law. If no claim was made by a
parent or descendant of the testator, the right to caduca
was given by the Lex Papia in the first place to such
mentioned in the will as had children (jus patrum
being preferred to legatarii,
except that collegatarii
with children had certain rights of
priority over other devisees. In default of any such claimants, the right of
was given to the aerarium.
By a constitution of the Emperor Antoninus
were appropriated in all
cases to the fiscus.
(Ulpian, 17.2.) The
Constitution of Caracalla probably abolished the jus
but it did not take away the rights of parents and
descendants of the testator under the old law.
He who took a caducum
took it subject to the
charges with which it was burthened (Ulpian, 17.3, “caduca cum suo
onere fiunt” ): thus an hereditas
was subject to the bequests of freedom of legacies, and of
with which it was charged.
The law of caducity
was no doubt unpopular; and we
are told that many legal devices were employed by lawyers for the purpose of
preventing its application. Testators were in the habit of making
substitutions in order to provide against lapses (ne
Cod. 6.51, 1). In the time of Constantine, both
or unmarried and the orbus
or childless person (who was under a limited
incapacity) obtained the full legal capacity of taking the inheritance (Cod.
8.58). The effect of these and other changes in the law was greatly to
diminish the importance of caduca
as a source
of imperial revenue. Justinian (Cod. 6.51, de caducis
) entirely abolished the leges
and re-established the jus
though with some modifications. (Juv. Sat.
9.88; Gaius, 1.150, 2.207, 3.144, 286; Ulp.
tit. xvii., Cod. 6.51; Rudorff, Zeitsch.
für Gesch. Rechtswissenschaft,
2.71, 81; Puchta, Inst.
As to the Dos caduca,