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BONA CADU´CA

BONA CADU´CA Caducum literally signifies “that which falls ;” thus glans caduca, according to Gaius (Dig. 50, tit. 16, s. 30), is the mast which falls from a tree.

Caducum, 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; Phil. 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 jus civile, 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, and the 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 Quiritium, or if a heres ex parte or a legatee died or became a peregrinus before the opening of the will, the thing was caducum.

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.

Caducum 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 caduci. (Cod. 6.51, 2; cf. Code Civil, art. 1039.)

Either a share of an inheritance or a particular legatum might become caducum. The 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 treasury--aerarium (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; a legatum which 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 heredes or legatarii mentioned in the will as had children (jus patrum), heredes 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 claiming caduca was given to the aerarium. By a constitution of the Emperor Antoninus Caracalla, caduca were appropriated in all cases to the fiscus. (Ulpian, 17.2.) The Constitution of Caracalla probably abolished the jus patrum, 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 caduca was subject to the bequests of freedom of legacies, and of fideicommissa 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 fiant caduca, Cod. 6.51, 1). In the time of Constantine, both the caelebs 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 tollendis) entirely abolished the leges caducariae and re-established the jus antiquum, though with some modifications. (Juv. Sat. 9.88; Gaius, 1.150, 2.207, 3.144, 286; Ulp. Frag. tit. xvii., Cod. 6.51; Rudorff, Zeitsch. für Gesch. Rechtswissenschaft, 6.6; Francke, Beiträge; Baumeister, Das Anwachsungsrecht; Mayer, Anwachsungsrecht; Danz, Lehrbuch, 2.71, 81; Puchta, Inst. 3.326.) As to the Dos caduca, see Dos.

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

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