is the technical term
for the succession which the praetor gave to the inheritance of a deceased
person. He who received the bonorum possessio
did not thereby become heres
successor, for his title depended on the praetor's authority, and the
praetor could not make a heres.
Thus, when the
became established, there
were two titles under which an inheritance might be claimed,--the one
resting on civil law (hereditas
), the other on
the praetor's edict (bonorum possessio
praetor gave bonorum possessio
to those who had
a civil title to the inheritance, and also to those who had no civil title.
The reason why persons who could claim the inheritance at civil law
sometimes chose to ask for the bonorum
was that they thereby acquired the benefit of the
interdictum quorum bonorum,
limited to cases of bonorum possessio.
giving bonorum possessio
to persons who had no
civil title to the inheritance, the praetor instituted a new system of
succession which differed from that of the civil law. It is important to
understand the relation in which the civil and praetorian titles stood to
The grant of bonorum possessio
necessarily imply that the bonorum possessor
would be protected against one who had a valid civil title, for the bonorum possessio
was given either cum re
or sine re.
was given cum re
when the person to whom it was
given could not be deprived of the property by anyone claiming under a
superior title. It was given sine re
another person could assert his claim to the inheritance by the jus civile,
and so make the praetorian title
ineffectual. As a rule, when the civil and praetorian titles were opposed to
one another, the civil title was the stronger, i.e..
the bonorum possessio
but in some cases the bonorum possessor
was protected, i.e., cum re,
against one who had a good civil title.
The praetor expressed in his edict the general rules which he followed in
giving bonorum possessio
(bonorum possessio edictalis
), but bonorum
was sometimes granted to meet the circumstances of
particular cases after a special inquiry (causae
) had been held (bonorum possessio
The bonorum possessio
was promised by the edict,
1. Contra tabulas.
2. Secundum tabulas.
- 1. Bonorum possessio contra tabulas,
i.e. in opposition to the will of the deceased, was instituted for
the benefit of emancipated children. According to jus civile, an emancipated son had no claim to the
inheritance of his father ; but if he was omitted in his father's
will, or not expressly exheredated, the praetor's edict gave him the
bonorum possessio on condition that
he would bring into hotchpot (bonorum
collatio), with his brethren who continued in the parent's
power, whatever property he had at the time of the parent's death.
The effect of this bonorum possessio
was to give emancipati the succession
in the place of the heredes instituted
in the will, but the will was not in other respects invalidated. The
sui heredes who were instituted in
the will were also allowed the bonorum
possessio, and succeeded jointly with the emancipati who had been passed over. If a
freedman made a will without leaving his patron as much as one-half
of his property, the patron obtained the bonorum
possessio of one-half, unless the freedman appointed
his own children as his successors. It is to be noticed that this
bonorum possessio is cum re against a person who had a valid
- 2. Bonorum possessio secundum
tabulas. By this bonorum
possessio the praetor gave effect to wills which were
invalid at civil law. In order to obtain bonorum
possessio secundum tabulas, it was necessary that the
will should be sealed by seven witnesses, that the testator should
have had testamenti factio at the time
of his death, that the persons instituted in the will should be
capable of succeeding at civil law, and that no claim should have
been made against the will (contra
tabulas). By this bonorum
possessio the praetor gave effect to wills which had not
been executed in the form requisite for making a civil will: thus he
dispensed with the cumbrous form of mancipation. He also supported
wills which had become invalid on some technical grounds. The
bonorum possessor secundum tabulas
had not a good title against the heres
until the Emperor M. Aurelius protected him against the civil action
by which the inheritance was claimed. (Gaius, 2.119, 120.)
- 3. Bonorum possessio intestati. In
the case of intestacy there were seven classes of persons who might
claim the bonorum possessio, each in
his order, upon there being no claim of a higher class. The three
first classes or orders were: 1. Unde
liberi. 2. Undo legitimi. 3.
Unde proximi cognati.
The terms for the four remaining orders are: These orders, with the exception of that unde vir et uxor, are exclusively concerned with the
succession to the property of freedmen, or of persons manumitted
from the state of mancipium.
- 1. Bonorum possessio unde
liberi. The praetor admitted in this first order
sui heredes and those who
would have been sui heredes if
they had not been emancipated. The emancipati were required to make collatio bonorum. An emancipatus admitted in this order
was bonorum possessor cum re,
as against a person who had the civil title: e.g., A. dies intestate, leaving an
emancipated son and a brother his nearest agnati; the brother is civil heir, but the
emancipated son, as bonorum
possessor, excludes him.
- 2. Bonorum possessio unde
legitimi. All persons who had a civil title to the
inheritance were admitted in this order. Thus, the praetor
in granting the bonorum possessio
intestati preferred those who had a civil
title to those who had no civil title, except in the case of
- 3. Bonorum possessio unde proximi
cognati. Blood relations were admitted in this
order according to proximity of relationship. If the nearest
in degree did not claim, the next in proximity was entitled
to succeed (successio graduum).
Cognates further removed than the sixth degree of proximity
could not claim, except in the case of sobrino natus, who was in the seventh
The bonorum possessio unde vir et uxor
reciprocal rights of succession to the husband and wife.
acquired possession of
property belonging to the inheritance by means of the interdictum quorum bonorum
; Cod. 8.2). The praetor gave bonorum possessores
the same actions, and allowed
the same actions to be brought against them, as they would have been able to
maintain or would have been subject to, if they had been heredes.
Such actions were not actiones
because not founded on a civil title, but actiones utiles.
A fictitious clause was inserted in
the formulae of such actions by which the judex
was directed to decide the case on the assumption that the bonorum possessor
The bonorum possessor
said “ficto se herede agere” (Gaius, 4.34). In the later period
of Roman law the civil action by which the heres
asserted his right to the inheritance was also given to
). The bonorum possessor
only acquired a bonitary, not a
civil title to the property which belonged to the inheritance, until by
usucapion his property was converted into Quiritarian ownership.
In order to become bonorum possessor
necessary that an application should be made to the magistrate (
“agnitio, admissio, petitio bonorum possessionis” ).
Parents and children might make their claim within a year from the time of
their being able to do so; others were only allowed a hundred days. On the
failure of a party to make his claim, the right devolved on those next in
The history of the origin and development of the praetorian succession cannot
be clearly traced. It is probable that the praetor first gave bonorum possessio
for the benefit of the civil heir
( “juris civilis confirmandi gratia” ); that he then used it
for the purpose of supplementing the civil law ( “juris civilis
supplendi gratia” ), in case there was no civil heir ; and,
lastly, in some cases gave it in opposition to the civil law ( “juris
civilis corrigendi gratia” ). Justinian, by his 115th and 118th
Novellae, established a uniform system of inheritance, and by so doing
almost entirely abolished the bonorum
(Gaius, 3.25-38, 4.34; Ulp. Fragm.
28, 29; Dig. 37
; Fabricius, Ursprung und Entwicklung der bonorum
&c., 1837; Vangerow, Pandekten,
§ § 398-400; Puchta, Inst.