BONO´RUM EMP´TIO ET EMPTOR
BONO´RUM EMP´TIO ET EMPTOR The early form
of execution for debt, termed
manus injectio,
was personal, not real; i. e. it was directed against a debtor's person, not
against his property: if the creditors acquired the property of their debtor
under this execution, they only acquired it as accessory to his person. [MANUS INJECTIO; NEXUM.] Subsequently a complete
process of real execution was established through the instrumentality of the
praetor, which is known as
bonorum emptio or
bonorum venditio, the institution of which
may have been a consequence of the Lex Poetelia Papiria (B.C. 326). It is
not to be supposed that the Lex Poetelia exempted the person of the debtor
from arrest, and only made his property liable, as has been inferred by some
writers from the words of Livy (
8.28),
“pecuniae creditae bona debitoris non corpus obnoxium
esset,” since we find the liability to personal arrest continuing as
the ordinary form of execution. There was now, however, a direct execution
against the property, and the debtor was no longer liable to be sold
trans Tiberim, or to be put to death.
There is not sufficient evidence to show whether creditors were obliged to
make an election between the personal execution of the civil law and the
real execution of the praetorian, or whether both remedies could be used
concurrently. It is thought that the praetor derived his conception of
bonorum emptio from the procedure used by
the treasury in seizing the property of proscribed persons, criminals, and
public debtors, by which the property confiscated was sold and assigned by
the state as an entirety, being commonly purchased by speculators called
sectores. [
SECTIO] Similarly the
bonorum
emptor succeeded, under the order of the praetor, to the
debtor's estate
per universitatem, and this
although the debtor suffered no
capitis
deminutio. Gaius, who gives an account of the Bonorum Emptio
process (3.78-80, 4.35), states that it
is said to
have been introduced by the Praetor P. Rutilius. It is uncertain who is the
praetor referred to, but it is generally supposed that P. Rutilius Rufus,
consul B.C. 105, is the person meant. Perhaps the praetor, in the first
instance, put creditors into possession of their debtor's property, for the
purpose of sale, when the debtor absconded or was absent, and so not
amenable to the civil law execution, and that subsequently he made the
remedy general. Gaius tells us (3.78) that, in the case of a living person,
his property was liable to be sold if he concealed himself for the purpose
of defrauding his creditors, and was not defended in his absence; or if he
made a
bonorum cessio according to the Julian
law; or if he failed to satisfy a judgment debt within the prescribed
period. In the case of a dead person, his property was sold when it was
ascertained that there was neither
heres nor
bonorum possessor, nor any other legal
successor.
There were different stages in the proceedings for conducting the execution.
First the praetor, on the application of the creditors, authorised them to
take possession of the debtor's property, and to give notice (
proscriptio) of its sale. This explains the
expression in Livy (
2.24), “ne quis
militis, donec in castris esset, bona possideret aut venderet.”
The creditors were said “in possessionem rerum debitoris
mitti:” sometimes a single debtor obtained possession. If the
circumstances made it advisable, the praetor appointed a
curator bonorum to administer the property. It was necessary
that thirty days should elapse from the issuing of the first order in the
case of a living person, and fifteen days in the case of a deceased person,
before further proceedings could be taken. This period gave the debtor or
other persons acting on his behalf the opportunity of putting a stop to the
sale by satisfying the debt, or proving that the claim was not well founded.
It also gave other creditors time for putting in their claims.
At the end of this period the second stage in the proceedings commenced. The
creditors now, under a second order of the praetor, met in order to elect a
magister bonorum, whose duty it was to
carry out the sale in the interest of the creditors. (
Cic. Att. 1.9,
6.1;
pro Quint. 15.50.) The debtor, upon this stage
in the proceedings being reached, became
infamis. The sale itself was the final stage in the proceedings.
It took place after an interval of ten days from
[p. 1.307]the meeting of creditors in the case of a living person, and of five days
if the debtor was dead, the conditions of sale having been duly advertised.
The property was sold by auction under the praetor's order to the highest
bidder (
bonorum emptor). The property was sold
in one lot as an entirety (
universitas). The
purchaser obtained by the sale only a praetorian title: the property was his
in bonis, until he acquired the Quiritarian
ownership by usucapion. Consequently the actions which the purchaser could
bring and which could be brought against him were praetorian actions
(
actiones utiles), not actions at law
(
actiones directae). In the last period of
Roman law the property of a debtor was not sold as an entirety in the way we
have described, but in separate lots. This latter form of execution was
called
distractio bonorum. Roman law provided
means by which an impecunious debtor could avoid personal arrest. [BONAM COPIAM JURARE; BONORUM CESSIO.] (Gaius,
3.77; iv., 35, 65, 111;
Dig. 42,
4,
5; Huschke,
Nexum, § § 160, 181, 234; Keller,
Civil-Prozess, § § 83-85;
Bethmann-Hollweg,
Civil-Prozess, 2.667-685; Dernburg,
Emptio bonorum; Puchta,
Inst. § 179.)
[
E.A.W]
