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,
It is necessary to explain some of the technical
phrases in which the term bona fides
Actions containing a clause in their formula by which the judex
was authorised to decide the case according to bona fides
were called bonae
addition to the formula of such words as “quantum aequius
melius” or “ex fide bona” (Cic.
; de Off.
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.
5. § § 218-220, and
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;
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
unless it was conveyed under the
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.
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.