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BONO´RUM EMP´TIO ET EMPTOR

BONO´RUM EMP´TIO ET EMPTOR The early form of execution for debt, termed manus injectio, was personal, not real; i. e. it was directed against a debtor's person, not against his property: if the creditors acquired the property of their debtor under this execution, they only acquired it as accessory to his person. [MANUS INJECTIO; NEXUM.] Subsequently a complete process of real execution was established through the instrumentality of the praetor, which is known as bonorum emptio or bonorum venditio, the institution of which may have been a consequence of the Lex Poetelia Papiria (B.C. 326). It is not to be supposed that the Lex Poetelia exempted the person of the debtor from arrest, and only made his property liable, as has been inferred by some writers from the words of Livy (8.28), “pecuniae creditae bona debitoris non corpus obnoxium esset,” since we find the liability to personal arrest continuing as the ordinary form of execution. There was now, however, a direct execution against the property, and the debtor was no longer liable to be sold trans Tiberim, or to be put to death.

There is not sufficient evidence to show whether creditors were obliged to make an election between the personal execution of the civil law and the real execution of the praetorian, or whether both remedies could be used concurrently. It is thought that the praetor derived his conception of bonorum emptio from the procedure used by the treasury in seizing the property of proscribed persons, criminals, and public debtors, by which the property confiscated was sold and assigned by the state as an entirety, being commonly purchased by speculators called sectores. [SECTIO] Similarly the bonorum emptor succeeded, under the order of the praetor, to the debtor's estate per universitatem, and this although the debtor suffered no capitis deminutio. Gaius, who gives an account of the Bonorum Emptio process (3.78-80, 4.35), states that it is said to have been introduced by the Praetor P. Rutilius. It is uncertain who is the praetor referred to, but it is generally supposed that P. Rutilius Rufus, consul B.C. 105, is the person meant. Perhaps the praetor, in the first instance, put creditors into possession of their debtor's property, for the purpose of sale, when the debtor absconded or was absent, and so not amenable to the civil law execution, and that subsequently he made the remedy general. Gaius tells us (3.78) that, in the case of a living person, his property was liable to be sold if he concealed himself for the purpose of defrauding his creditors, and was not defended in his absence; or if he made a bonorum cessio according to the Julian law; or if he failed to satisfy a judgment debt within the prescribed period. In the case of a dead person, his property was sold when it was ascertained that there was neither heres nor bonorum possessor, nor any other legal successor.

There were different stages in the proceedings for conducting the execution.

First the praetor, on the application of the creditors, authorised them to take possession of the debtor's property, and to give notice (proscriptio) of its sale. This explains the expression in Livy (2.24), “ne quis militis, donec in castris esset, bona possideret aut venderet.” The creditors were said “in possessionem rerum debitoris mitti:” sometimes a single debtor obtained possession. If the circumstances made it advisable, the praetor appointed a curator bonorum to administer the property. It was necessary that thirty days should elapse from the issuing of the first order in the case of a living person, and fifteen days in the case of a deceased person, before further proceedings could be taken. This period gave the debtor or other persons acting on his behalf the opportunity of putting a stop to the sale by satisfying the debt, or proving that the claim was not well founded. It also gave other creditors time for putting in their claims.

At the end of this period the second stage in the proceedings commenced. The creditors now, under a second order of the praetor, met in order to elect a magister bonorum, whose duty it was to carry out the sale in the interest of the creditors. (Cic. Att. 1.9, 6.1; pro Quint. 15.50.) The debtor, upon this stage in the proceedings being reached, became infamis. The sale itself was the final stage in the proceedings. It took place after an interval of ten days from [p. 1.307]the meeting of creditors in the case of a living person, and of five days if the debtor was dead, the conditions of sale having been duly advertised. The property was sold by auction under the praetor's order to the highest bidder (bonorum emptor). The property was sold in one lot as an entirety (universitas). The purchaser obtained by the sale only a praetorian title: the property was his in bonis, until he acquired the Quiritarian ownership by usucapion. Consequently the actions which the purchaser could bring and which could be brought against him were praetorian actions (actiones utiles), not actions at law (actiones directae). In the last period of Roman law the property of a debtor was not sold as an entirety in the way we have described, but in separate lots. This latter form of execution was called distractio bonorum. Roman law provided means by which an impecunious debtor could avoid personal arrest. [BONAM COPIAM JURARE; BONORUM CESSIO.] (Gaius, 3.77; iv., 35, 65, 111; Dig. 42, 4, 5; Huschke, Nexum, § § 160, 181, 234; Keller, Civil-Prozess, § § 83-85; Bethmann-Hollweg, Civil-Prozess, 2.667-685; Dernburg, Emptio bonorum; Puchta, Inst. § 179.)

[E.A.W]

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