SUCCE´SSIO
SUCCE´SSIO is a term employed by the Roman jurists
when speaking of the modes in which legal rights are acquired and lost. The
relation of person and right, or of right and its subject, varies with the
nature of the right itself. In respect of many rights, what is essential and
permanent is the person in whom they reside: the rights themselves are
merely transitory attributes. But in respect of property (using that term in
its widest sense) this relation is reversed. Rights of property can as a
rule pass from subject to subject: so far as they are concerned it is
immaterial in whom they are vested for the time being, or, as Dr. Bruns has
remarked, “as the coat changes its wearer, but itself remains the
same, so can the right to the coat change its subject without being
changed itself.” Successio is the acquisition by one person of a
right or rights hitherto vested in another, but not every such acquisition:
it is in fact a species of what jurists call “derivative
acquisition,” of which there are two kinds. In the one a person
tranfers to another a portion of his own rights, as where an owner
constitutes a
jus in re aliena [
SERVITUTES], such as a
usufruct or a right of way, over property of his own in favour of another:
here the right of the latter is acquired derivatively, but there is no
successio, the owner carving as it were a right differing in orbit from his
own out of his own dominium. In the other, which is successio, the right of
the one party passes in its integrity to the other, of whom it is said,
“Succedit in locum ejus.” Here a legal relation is
presupposed between the two persons, the one of whom ceases to be invested
with the right
eo instanti that it becomes
vested in the other; and to the latter it cannot be (in the eye of the law)
a higher, larger, or more valuable right than it was to the former:
“non debeo melioris condicionis esse quam auctor meus, a quo jus
in me transit,”
Dig. 50,
17,
175; “nemo plus juris ad alium transferre
potest, quam ipse haberet,” Dig. ib. 54. Thus in the case of the
transfer of ownership by traditio, the new ownership begins when the old
ownership ceases, and it only arises in case the former possessor of the
thing was also owner; that is, prior ownership is a necessary condition of
subsequent ownership. Without a legal
[p. 2.722]relation
between the two parties, the one of whom intends to transfer his right to
the other, there can be no successio. For instance, if A acquires ownership
in property hitherto belonging to B by usucapio, B ceases to be its owner,
but there is no legal relation between A and B, and therefore no succession:
the acquisition by A is original, not derivative. So, too, if B abandons
property (
derelictio) of which A takes
possession with the intention of appropriating it, it becomes A´s
without more ado (Inst. 2.1, 47): but here again the acquisition is
original, and and there is no succession. The requirement that the right
should vest in the successor contemporaneously with its divestment from the
other party is sometimes satisfied by a fiction, as in the succession of a
heres: for though there might be a considerable interval between the death
and the aditio of the inheritance, yet the latter, when once made, had by a
legal fiction relation back to the moment of decease: “heres quandoque
adeundo hereditatem jam tunc a morte successisse defuncto intelligitur,”
Dig. 29,
2,
54; “omnis hereditas, quamvis postea adeatur,
tamen cum tempore mortis continuatur,”
Dig. 50,
17,
138.
Of successio there are two kinds. A man either succeeds to a single right or
a number of single rights by themselves, which is called “singular
succession:” or he succeeds to the whole property or proprietary
relations of another, whereby the individual rights pass also, which is
called “universal succession.” The Roman phrases are somewhat
different. It is said in
Dig. 43,
3,
1,
13 (cf.
Gaius, 2.97), “in locum successisse accipimus sive in universitatem
sive in rem sit successum:” so too we have “in eam duntaxat
rem succedere” (
Dig. 21,
3,
3), “in singularum
rerum dominium succedere” (
Dig. 29,
2,
37), “in rei
tantum dominium succedere” (
Dig. 39,
3,
24); “in
universum jus, in universa bona” (
Dig.
23,
3,
3,
1;
39,
2,
1).
In singular succession the person from whom the right passes is called the
other's
auctor (
Dig.
50,
17,
175, cited
above: “auctorum successio,”
Dig. 1,
2,
2,
13). As to the rights of which a
singular succession is possible, something is said below; but the succession
requires an act between the parties capable of transferring the right,
whether it be mancipatio, traditio, or mere grant. The object of universal
succession is a man's whole property, so far as it exceeds mere life
interests, comprising
res in corporales (e. g.
what we term “choses in action” ) no less than
res corporales, and in most cases his liabilities as
well as his rights: the notion upon which it is based being usually a
fictitious identity of person between the party hitherto entitled and the
successor, so that the former, in relation to the object of succession, is
not (as in singular succession) opposed to the latter as a disconnected
person, and consequently is not here as a rule termed his
auctor, though an instance of this (in inheritance) occurs in
constitution of Diocletian in the Codex Hermogenianus. The universal
successor may very properly be regarded as and termed successor to a part of
the whole, but only because it is such a part: he succeeds to the part
because he succeeds to the whole. Of universal succession there is a variety
of forms, of which the most important is succession upon death On a man's
decease, his heir or heirs, whether they took by civil (
heredes) or by praetorian law (
bonorum
possessores), took his property as an ideal whole: “bona
autem hic, at plerumque solemus dicere, ita accipienda sunt:
universitatis cujusque successionem, qua succeditur in jus demortui,
suscipiturque ejus rei commodum et incommodum. Nam sive solvendo sunt
bona sive non sunt, sive damnum habent sive lucrum, sive in corporibus
sunt sive in actionibus, in hoc loco proprie bona appellabuntur”
(
Dig. 37,
1,
3, pr.). After the Senatusconsulta Trebellianum
Pegasianum, the same occurred where an heir transferred the whole
inheritance to another under a trust [
FIDEICOMMISSUM]. In the other cases of universal
succession the so-called
passiva of the person
succeeded (i. e. his liabilities) did not by the civil law pass to the
successor: but by the Edict this was generally so far modified that the
latter became answerable for the
passiva so far
as the
activa (assets) went. They comprise the
following:--(1) The passing of a woman
in manum mariti:
“Cum mulier viro in manum convenit, omnia quae mulieris fuerunt viri
fiunt dotis nomine,”
Cic. Top. 4, 23: “cum
mulier in manum convenit, omnes ejus res incorporales et corporales
quaeque ei debitae sunt coemptionatori adquiruntur, exceptis his quae
per capitis deminutionem pereunt . . . ex diverso quod ea debuit quae in
manum convenit non transit ad coemptionatorem . . . nisi si hereditarium
aes alienum fuerit: tune enim, quia ipse coemptionator heres fit,
directo tenetur jure” (Gaius, 3.83-4); and Gaius goes on to
explain that though by the civil law no liability attaches after the
coemptio for debts contracted by the woman before it either to herself or
the husband, yet the praetor granted
utiles
actiones against her to the creditors, who, unless she were
defended, would be put in possession for purposes of liquidation of all
property which they might have proceeded against at civil law, but for the
coemptio. (2) The giving of an independent person by himself in adrogation:
“Si paterfamilias adoptatus sit, omnia quae ejus fuerunt et
adquiri possunt, tacito jure ad eum transeunt qui adoptavit”
(
Dig. 1,
11,
15, pr.).
Mutatis
mutandis, Gaius says precisely the same of this, in respect of
debts owed by the adrogatus, as he does of
conventio in
manum. (3)
Bonorum emptio or
bankruptcy, for which see Gaius, 3.77-81; Inst. 3.12, pr. (4) The reduction
of a free woman to servitude under the Senatusconsultum, Claudianum, in
which case her whole property passed with her to her new master [
SERVUS 662
b]. In many other, cases, though the object is to transfer the
whole property, it is in fact effected by the transfer of the several
things--e. g. in gift, in the constitution of a
dos, in the formation of a
societas,
or the sale of an inheritance by the
heres.
There are many rights which cannot be acquired by succession at all, and
others which can be acquired by universal but not by singular succession.
Speaking, generally, none can thus pass but proprietary rights: for
instance, the rights of
patronatus over a
libertus civis could not be bequeathed away
to an
extraneus heres, because, properly
speaking, they were personal and based on a fictitious kinship: they
devolved on the issue who were in the testator's power at his death, and who
were potentially possessed of them even during the ancestor's lifetime
[p. 2.723](Gaius, 3.58). But the
jus
patronatus over a Latinus Junianus could be so bequeathed
(Gaius, ib.), because it was a mere property right, the freedman becoming a
slave again at the moment of his decease (Inst. 3.7, 4). Yet in some rights
there may be a successio which cannot be regarded as of a proprietary
nature: e. g. the pater can transfer his patria potestas by
datio in adoptionem, and in some cases the guardian
could assign his rights of tutela (Gaius, 1.168
sq.).
Real rights, such as ownership, possession, and
jura in re
aliena (with the exception of servitudes), admit of succession
of both kinds: they can be transferred by the appropriate mode of conveyance
inter vivos, and devolve at death on the
heir. No servitudes can be succeeded to “singularly,” and
personal servitudes, being as a rule mere life interests, were generally
excluded from univeisal succession upon death: up to the time of Justinian
usus and ususfructus were destroyed: by capitis deminutio of every kind, so
that they could not, before his change in the law, pass upon a
conventio in manum or
adrogatio. Nor can there be any singular succession to
obligations or rights
in personam: if the
subject of the right were really changed (by Novatio), the right itself was
changed also; and if the right were assigned, there was no real change of
subject, but the assignee merely exercised a right of action which remained
vested in his assigner: upon this subject see OBLIGATIO.
The terms
successio, successor, succedere by
themselves have a general meaning and comprise both kinds of succession.
Sometimes they denote universal succession without any addition, though
where this is so the meaning is usually clear from the context (e. g. Gaius,
3.82), but generally when universal succession is intended the word
universum or some cognate term is added.
Successio signifies the inheritance in many passages
(e. g. “ex testamento successionem obtinere,” Cod. 6, 20, 1:
cf. Cod. 2,53, 5, 3; 7, 34, 4; 3, 36, 10), and in some even the heirs (e. g.
“Nullam ex priore matrimonio habere successionem,” Cod. 5,
9, 3, pr.; ib. 2): “alienas successiones proprias anteponere”
(Cod. 6, 42, 30). In
Dig. 28,
2,
23,
1; ib. 29,
4, it denotes the substitution of a remoter for a nearer heir (cf.
Dig. 38,
9,
1;
50,
17,
194): and in
Dig. 20,
3,
3;
20,
4,
3, pr.;
ib. 12, 9; ib. 16, the substitution of a subsequent for a prior mortgagee.
(Savigny,
System, 3.8
sq.; Puchta,
Institutionen, § 198; Hasse,
Ueber
Universal und Singular-Successio,
“Archiv für civ. Praxis,” 5.1; Kuntze,
Die
Obligationen und die Singular-Succession im röm.
Rechte, Leipzig, 1856.)
[
J.B.M]
