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BONA FIDES

BONA FIDES This term frequently occurs in the Latin writers, and particularly in the Roman jurists. It implies such conduct as may be expected from men of fair dealing, and so is constantly opposed to male fides, fraus, and dolus malus. It is necessary to explain some of the technical phrases in which the term bona fides occurs.

Actions containing a clause in their formula by which the judex was authorised to decide the case according to bona fides were called bonae fidei judicia or actiones. The addition to the formula of such words as “quantum aequius melius” or “ex fide bona” (Cic. Top. 17; de Off. 3.15, 17) showed that the action belonged to this class. The effect of the addition was to give the judex the freest latitude in dealing with [p. 1.305]the case, and so to take equitable considerations into account (Gaius, 4.62).

In actions arising from strictly unilateral obligations, in which the point at issue was narrowly defined, the powers of the judex were strictly limited. Such actions are called actiones stricti juris, and are contrasted with actiones bonae fidei. (Savigny, System, 5. § § 218-220, and Beilage, xiii.; Bethmann-Hollweg, 2.275-286.)

Bonae fidei possessio is the possession of a person who has acquired a thing from another under a title which he believes to be a good one, or which he has no reason for supposing to be defective.

It was a necessary condition for acquiring a title to property by usucapion that the possession should have begun in good faith. (Gaius, 2.43; Inst. 2.6, pr.) In certain exceptional cases, however, mentioned by Gaius, title by usucapion was allowed, although this condition was absent (Gaius, 2. § § 52, 60, 61); but these exceptions subsequently disappeared.

A thing which was furtiva or vi possessa, or the res mancipi of a female who was in the tutela of her agnati, unless it was conveyed under the auctoritas of her tutor, was not subject to usucapion, and therefore in these cases the presence or absence of bona fides was immaterial. (Gaius, 2.45-50; Cic. Att. 1.5, pro Flacc. 100.34.)

The praetor allowed the bonae fidei possessor the benefit of the actio Publiciana in rem.

A bonae fidei possessor was not liable to the owner for fructus which were no longer in existence, or which had been alienated by him; whereas the malae fidei possessor was liable under all circumstances for fructus, which he had derived from the thing in his possession.

[G.L] [E.A.W]

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