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BONA

BONA The word bona is sometimes used to express the whole of a man's property (Paulus, Recept. Sentent. 5.6, 16; Dig. 37, tit. 1, s. 3; 50, tit. 16, s. 49); and in the phrases bonorum emptio, cessio, possessio, the word bona has this meaning. It expresses all that concerns a man's proprietary position, whether as owner, possessor, creditor or debtor. Thus the word bona is simply the property as an object ; it does not express the nature of the relation between it and the person who has the ownership or enjoyment of it, any more than the words “all that I have,” “all that I am worth,” “all my property” in English show the legal relation of a man to that which he thus describes.

In some places the word bona is used to signify a man's assets, i. e. his property after the deduction of that which he owes. It is also used for separate portions of a man's property, as in the phrase actio vi bonorum raptorum.

The legal expression in bonis, as opposed to dominium or Quiritary ownership, means that property is held under a praetorian or equitable, and not under a civil or legal title. The distinction is explained in the following passage of Gaius (2.40):--“Among foreigners (peregrini) there is only one kind of ownership (dominium), so that a man is either the owner of a thing or he is not. And this was formerly the case among the Roman people; for a man was either owner ex jure Quiritium, or not owner at all. But afterwards the ownership was divided, so that now one man may be the owner of a thing according to strict law (dominus ex jure Quiritium), and at the same time another may be entitled to the beneficial ownership of it (in bonis habere). For instance, if I do not convey to you a res mancipi, either by the form of mancipatio or of in jure cessio, but simply deliver it to you, you acquire the praetorian title to the thing, but it will remain mine ex jure Quiritium, until possession gives you a civil title by usucapion. For when the usucapion is once complete, from that time it begins to be yours absolutely (pleno jure); that is, it is yours both in bonis and also yours ex jure Quiritium, just as if it had been mancipated to you, or transferred to you by in jure cessio.

From this passage it appears that the ownership of certain kinds of things, called res mancipi [MANCIPIUM], could only be transferred from one person to another with certain formalities. But if it was clearly the intention of the owner to transfer the ownership, and the necessary forms only were wanting, the purchaser was protected in the beneficial enjoyment of the thing by the praetor, though the transferor remained legally the owner until the usucapion was completed, notwithstanding he had parted with the thing. Only those who were capable of acquiring the legal ownership could thus become beneficial owners; any personal incapacity which prevented Quiritary ownership being acquired also stood in the way of bonitary ownership.

Quiritary ownership originally and properly signified that ownership of a thing which was recognised by the law; it did not express a compound but a simple notion, which was that of absolute ownership. But when it was once established that one man might have the Quiritary ownership, and another the sole right to the enjoyment of the same thing, the complete notion of Quiritary ownership became a notion compounded of the strict legal notion of ownership and that of the right to enjoy, as united in the same person. And as a man might have both the Quiritary ownership and the right to the enjoyment of a thing, so one might have the Quiritary ownership only, and another might have the enjoyment of it only. This bare ownership was sometimes expressed by the same terms (ex jure Quiritium) as that ownership which was complete, but sometimes it was appropriately called nudum jus Quiritium. (Gaius, 3.100.)

The praetor protected the owner in bonis by allowing the plea that the thing in question had been sold and delivered (exceptio rei venditae et traditae), or the plea of fraud (exceptio doli), to be a good defence against an action (vindicatio) brought on the bare civil title. The owner in bonis had also the benefit of the actio Publiciana, which was a praetorian action in rem based on the feigned assumption that the plaintiff had acquired the thing claimed by usucapion. (Gaius, 4.36.) The Quiritary owner might meet this action by the plea that he was civil owner (exceptio dominii); but if the plaintiff was owner in bonis, he could make such plea of Quiritary ownership ineffectual by putting in the counterplea of fraud (replicatio doli). Thus, although the praetor could not give Quiritary ownership, he fully protected a man in the beneficial ownership.

The historical origin of this double ownership is unknown; there is no trace of it in the writings of Cicero. It was instituted, as the account of Gaius shows, in order to avoid the necessity of complying with the conveyancing formalities required by the civil law. Theophilus (in Paraph. ad § 4, s. 1-5) thus describes this division of ownership: “Ἔστιν φυσικὴ δεσποτεία καὶ ἔννομος δεσποτεία, καὶ μὲν φυσικὴ λέγεται in bonis, καὶ δεσπότης βονιτάριος, δὲ ἔννομος λέγεται jure Quiritium, τουτέστιν ἐκ τοῦ δικαίου τῶν κουϊριτῶν, δὲ δεσπότης jure Quiritario.” Hence have been derived the expressions dominium Quiritarium and bonitarium, which are commonly used. The rights of the bonitary owner were almost the same as those which belonged to a complete Quiritary owner, but in some respects they were more limited.

Thus the bonitary owner could not leave a legacy under the form per vindicationem (Gaius, 2.196); he could not by manumission make a slave civis Romanus, but only Latinus (Gaius, 1.167), or by manumitting a female slave acquire the tutela legitima over her (Gaius, 1.167): but the bonitary owner alone had the potestas over a slave and the right of manumission. If the bonitary owner abandoned his right, the Quiritary ownership became complete. There were other ways in which a person might acquire a mere praetorian title besides the case of double ownership mentioned by Gaius in the [p. 1.304]passage cited. Thus the successor to an inheritance under the praetor's edict (bonorum possessor), and the purchaser of a debtor's estate (bonorum emptor) under the praetor's order (addictio), were not Quiritary, but only bonitary owners of property assigned to them. Gaius, 3.80: “Neque bonorum possessorum neque bonorum emtorum res pleno jure fiunt, sed in bonis efficiuntur, ex jure Quiritium autem ita demum acquiruntur si usuceperunt.”

Justinian (in c. un. de nudo jure Quirit. 7.25) put an end to the distinction between Quiritary and bonitary ownership: “Antiquae subtilitatis ludibrium per hanc decisionem expellentes, nullam esse differentiam patimur inter dominos, apud quos vel nudum ex jure Quiritium nomen vel tantum in bonis reperitur.” The formal conveyances by mancipium and in jure cessio had previously become obsolete. (Unterholzner, in Rhein. Mus. 1.129; Zimmern, in Rhein. Mus. 3.311; Mayer, in der Zeitsch. für Gesch. Rechtsw. 8.1; Fabricius, de dupl. ap. Rom. dom.; Leist, Bonorum Possessio; Puchta, Cursus der Inst. 2.235.)

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

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