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BONO´RUM POSSES´SIO 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 or civil successor, for his title depended on the praetor's authority, and the praetor could not make a heres. Thus, when the bonorum possessio 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). The 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 possessio was that they thereby acquired the benefit of the interdictum quorum bonorum, which was limited to cases of bonorum possessio. By 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 one another.

The grant of bonorum possessio did not 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. It 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 when 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 was sine re; 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 possessio was sometimes granted to meet the circumstances of particular cases after a special inquiry (causae cognitio) had been held (bonorum possessio decretalis).

The bonorum possessio was promised by the edict, 1. Contra tabulas. 2. Secundum tabulas. 3. Intestati.

  • 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 civil title.
  • 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.

The bonorum possessio unde vir et uxor gave reciprocal rights of succession to the husband and wife.

Bonorum possessores acquired possession of property belonging to the inheritance by means of the interdictum quorum bonorum (Dig. 43, 2 ; 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 directae, 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 was heres. The bonorum possessor was 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 bonorum possessores ( “possessoria hereditatis petitio,” Dig. 5, 5). 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 it was 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 succession.

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 possessio. (Gaius, 3.25-38, 4.34; Ulp. Fragm. tit. 28, 29; Dig. 37, 1-5; 38, 6; Fabricius, Ursprung und Entwicklung der bonorum possessio, &c., 1837; Vangerow, Pandekten, 2. § § 398-400; Puchta, Inst. 316-320.)


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