Remedies of the Heir

5.5.6.1 Hereditatis Petitio

The hereditatis petitio was the principal legal remedy available to an heir after he had accepted the inheritance or his share thereof.

This remedy originated in the ius civile and took the form of an action in rem resembling the rei vindicatio?⁶ By means of this action an heir could claim the whole or any part of the inheritance from whoever had it in his possession, irrespective of whether the possessor was bona or mala fide.^{^[1137]} The action was available only to an heir in accordance with the ius civile and presupposed that the plaintiff could prove his right in respect of the inheritance claimed.^{^[1138]}

The senatus consultum Iuventianum, passed in the first half of the second century ad, complemented the above remedy by prescribing the liability of the bona fide and mala fide possessor in respect of fruits, damages and expenses along the same lines as the rules relating to the causa rei and the rei vindicatio.^{^{New Roman",serif; color:black;font-weight:bold'>[1139]}} Thus, the law elaborated that a mala fide possessor could be held liable for all damage suffered by the plaintiff as a consequence of his deprivation of possession. The bona fide possessor, on the other hand, was liable only to the extent that he had been unjustly enriched at the plaintiff’s expense and only insofar as such unjust enrichment was still extant.^{^[1140]} Fruits or proceeds from the property in question had to be restored by both the bona fide and mala fide possessor, although only the latter was liable for fruits he had failed to gather due to negligence.^{^[1141]} Further, as regards necessary expenses incurred by the possessor in respect of the property claimed, the bona fide possessor could rely on the exceptio doli as a defence against the plaintiff’s claim. However, in post- classical law both the bona fide and mala fide possessors were able to claim compensation for such expenses.^{^[1142]}

5.5.6.2 Interdictum Quorum Bonorum

As previously noted, bonorum possessio was the praetorian counterpart of the civil law succession.

Since the hereditatis petitio was not available to the praetorian heir, the praetor granted to such heir the interdictum quorum bonorum to recover the whole or any part of the estate possessed by another regardless of whether the possessor was bona or mala fide. However, this interdict could not be instituted against a person whose possession of the object in dispute was in fact based on a valid title (e.g. a contract of purchase and sale).

In post-classical and Justinianic law the distinction between the civil law heir and the praetorian heir disappeared, with the result that any heir had both the interdictum quorum bonorum and the hereditatis petitio available to him.^{^[1143]}

5.6

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Remedies of the Heir

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