2. PRAETORIAN LAW- BONORUM POSSESSIO

We have already seen that the Praetor intervened in some cases to mitigate the rigours of the civil law principles of universal succession.

We must now consider the device of bonorum possessio, which enabled him to intervene in a much more general way and to create in several fields that duplication of institutions which does so much to complicate any presentation of the law, but which enabled the law to adjust itself to the changing needs of society. Here too the treatment must ultimately fall into two parts, according as there is oris not a will, but the main principles are common to both.

General principles of bonorum possessio. The Praetor could not change the Civil law. If he found, for example, that by their ¹ See below, p. 268, and above, pp. 145 ff. exclusive emphasis on agnatic ties the provisions for intestacy laid down in the Twelve Tables denied the inheritance to cognates, who had, according to the ideas of a later time, an equal or better claim, he could not simply declare that such cognates were heredes. He could no more confer upon a man the quality of heres than he could relieve him of it. But he could authorize him to take possession of the property, and that possession would by usucapion ripen into ownership after a year. The Edict defined the classes of person to whom this authorization would be given, and the authorization was known as a grant of bonorum possessio. (This is rather misleading. Possession, being a matter of actual control, could not be created by a mere authorization. The grant was really of the legal means of obtaining possession from the present possessor. It also provided the iusta causa for the usucapion.) The position of such a bonorum possessor meanwhile was the same as that of any other bona fide possessor on the way to usucapion.¹ As against anyone except the heres he was secure, since if he were in possession no one else could show the title necessary to claim the inheritance from him, and if he were out of possession he had the usual Praetorian remedies.

As against the heres, however, though he could obtain possession, the only advantage of doing so was that the burden of proof in the subsequent action would be on the heres. He would not ultimately be successful. Bonorum possessio was then described as sine re—the bonorum possessor could not keep the inheritance.

Bonorum possessio was not always sine re. If the Praetor wished to make it effective even against the heres, he could do so quite simply by giving to the bonorum possessor a defence (exceptio doll} to bar the action of the heres. The bonorum possessio was then said to be cum re. The bonorum possessor would be able to keep the inheritance. Moreover bonorum possessio was not given only to persons who were not heredes. The Praetor did not always correct the civil law; he sometimes merely supplemented it. The classes of person to whom the Edict promised bonorum possessio sometimes therefore included the heres himself. And the bonorum possessio of the heres was inevitably cum re, since there was no one who could take the inheritance from him under either civil or Praetorian law.²

¹Cf. above, pp. 125 ff.

²It might seem that he had nothing to gain by applying for bonorum possessio

The position of the bonorum possessor cum re was not that of the bona fide possessor on the way to usucapion, but of the bonitary owner. For most—but not all¹—practical purposes he was heres, and the true heres retained, as Gaius puts it, only the empty name.

Remedies of the bonorum possessor. Since the grant of bonorum possessio was only an authorization to take possession of the property of the dead man, effect was originally given to it only by a possessory interdict.

This meant that the person to whom the grant had been made could only assert a claim to the res corporates of the inheritance (since they alone were capable of being possessed). Moreover, he could bring this interdict only against someone who claimed, rightly or wrongly, to be heres or against a mere interloper who made no attempt to justify his possession. He could not, for example, obtain possession of a res corporalis which the present possessor claimed to have bought from the dead man. Nor could he enforce any rights in personam (he was equally, of course, not liable for any debts). Once he had usucapted the res corporales he was, it is true, regarded as having usucapted the inheritance, but until then his title was of this limited and possessory character.

In the classical law, however, the bonorum possessor was so far recognized for what he in fact was—a Praetorian heir—that the ordinary actions were made available to him and against him, with the fiction that he was heres.

We must now consider the two ways—by will or by operation of law on intestacy—in which succession, whether by civil law or Praetorian law, might occur. As far back as our evidence goes there already existed a will of some kind, and all through their subsequent history the Romans regarded testamentary succession as normal—as the term ‘intestacy’ (successio ab intestate) itself shows—but what we know of other primitive systems, together with the peculiar character of the position of the suus since he was adequately protected by the Civil law. The principal incentive was that someone else might claim if he did not. For example, a heres named in a civil law will was entitled to bonorum possessio, but if he did not claim it the Praetor would give it to the person entitled on intestacy. This bonorum possessio would be sine re, and the heres would therefore ultimately prevail, but he would have been put to avoidable inconvenience.

¹ See above, p. 127, n. 2.

heres, suggests (though this is much debated) that intestate succession is the older. It is therefore dealt with first here.

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Source: Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p.. 1976

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