. The object of this
interdict was to give a person who had a primâ--facie claim to an
inheritance interim possession of things belonging to it, until a suit
respecting the inheritance was determined. Thus it was an interdict for
acquiring possession (ad ipiscendae possessionis
The Interdictum quorum bonorum was originally the only means by which the
bonorum possessor or praetorian heir could obtain possession of the property
of the inheritance, since such successor, not being heres, could not claim
by hereditatis. petitio, nor by vindicatio, since he was not civil owner; in
course of time, however, when bonitarian ownership (in
) was established, this kind of equitable ownership was
attributed to the bonorum possessor, and so he might be able to maintain
vindicatio utilis. Moreover, if the bonorum possessor lost possession, he
could in many cases recover it by the possessory interdicts. If he continued
in possession for the period of usucapion, he became civil owner. Only
property of which a person could have possession or quasi-possession was the
object of the interdictum quorum bonorum, but in the matter of obligations
the praetor put the bonorum possessor in the same position as the heres by
allowing him to sue in respect of the claims that the deceased had, and
allowing any person to sue him in respect of claims [p. 2.537]
against the deceased, in an actio utilis (Ulp. Fr.
Gaius, 2.52-58). Ultimately the bonorum possessio was put on the same
footing in respect of actions as the hereditas, the possessoria hereditatis
petitio being given to the bonorum possessor, corresponding to the
hereditatis petitio of the heres.
The new form of procedure co-existed with the interdict, and a person might
avail himself of either mode of proceeding, as he thought best, the two
remedies differing not only in their extent but also in the fact that the
one was a provisional remedy pending an action, while the petitio was an
action definitively determining the right to the inheritance. Thus in the
legislation of Justinian we find both forms of procedure mentioned. Some
writers maintain that the p. p. her, was recognised in the Edictum Perpetuum
of Hadrian, while others think that it must have been of later origin (see
Leist, 1.295; Lenel, Das Edictum Perpetuum,
The name of the Interdictum quorum bonorum is derived from its introductory
words, and it runs as follows: “Ait Praetor: quorum bonorum ex edicto
meo illi possessio data est: quod de his bonis pro herede aut pro
possessore possides, possideresve si nihil usucaptum esset: quod quidem
dole malo fecisti, uti desineres possidere, id illi restituas.” (
“The Praetor declares: Whatever portion of the property granted in
pursuance of my edict to be possessed by such and such a one, thou
possessest as heir or as unentitled occupant, or wouldest so possess but
for usucapion, or hast fraudulently ceased to possess, such portion do
thou deliver up to such a one.” ) (Poste's Gaius,
iv., § § 138-170 comm.)
Accordingly he was entitled to this interdict when he had obtained a grant of
bonorum possessio from the praetor, if any one of the following conditions
applied to the defendant:--
- 1. That he was in possession claiming to be heir.
- 2. That he was in possession without any title.
- 3. That he had acquired ownership by usucapio pro herede.
- 4. That he would be in possession, if he had not fraudulently made
away with the property.
The third condition requires some explanation.
According to the old law, any malâ--fide possessor could acquire
the ownership of a thing belonging to the hereditas, in the interval between
the death of the deceased person and the entrance (aditio
) of his heres on the inheritance. But Hadrian (Gaius,
2.57) by the SC. Juventianum changed the law so far as to protect the heres
against the usucapion of an improbus possessor, and to restore the thing to
him. Hence the words relating to usucapion were introduced into the formula
of the interdict. In the legislation of Justinian these words have no
meaning, since usucapio lucrativa pro herede forms no part of it; yet the
words have been retained in the compilation of Justinian, like many others
belonging to an earlier age, though they had lost their practical
significance. According to another explanation, a title by lucrativa
usucapio pro herede was not a defence to the Interdictum quorum bonorum,
even before the enactment of the SC. Juventianum, the effect of this law
being only to allow the heres to recover by hereditatis petitio from a
person who had acquired property of the inheritance by such usucapion. [HERES; BONORUM POSSESSIO.] (Dig.
; Gaius, 4.144; Savigny, in
Zeitsch. für gesch. Rechtsw.
5.1, and 6.239;
Francke, Das Recht der Notherben,
Fabricius, Ursprung und Entw. der B. P.
Leist, Bonorum Possessio,
1.342; Huschke, in
iii. pp. 19, 20, 26, &c.)