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On this page: Bona – Bona Fides – Bona Rapta – Bonorum Cessio

BONA FIDES.

He who took the portion of a hcres, which became caducum, took it by universal succession : in the case of a legacy, the caducum was a singular succession. But he who took an hereditas caduca, took it with the bequests of freedom, of legacies, and fidei commissa with which it was burthened : if the legata and fidei commissa became caduca, all charges with which they were burthened became caduca also. In the time of Constantine, both the caelebs, and the orbus, or childless person (who was under a limited incapacity), obtained the full legal capacity of taking the inheritance. (Cod. viii. 58.) Justinian (Cod. vi. 51) put an end to the caducum, with all its legal consequences. In this last-men­ tioned title (De Caducis tollendis) it is stated both that the name and the thing (nomen et materia caducorum) had their origin in the civil wars, that many provisions of the law were evaded, and many had become obsolete. (Juv. Sat. ix. 88; Gains, i. 150, ii. 207, iii. 144, 286; Lipsius, Excurs. ad Tacit. Ann. iii. 25; Marezoll, Lelirbuch der Institut. des Rom. Reclits.} As to the Dos Caduca, see Dos. [G. L.]

BONA FIDES. This term frequently occurs in the Latin writers, and particularly in the Roman jurists. It can only be denned with reference to things opposed to it, namely, mala fides, and dolus malus, both of which terms, and especially the .latter, are frequently used in a technical sense. [dolus malus.]

Generally speaking, bona fides implies the ab­sence of all fraud and unfair dealing or acting. In this sense, bona fides, that is, the absence of all fraud, whether the fraud consists in simulation or dissimulation, is a necessary ingredient in all con­tracts.

Bona fide possidere applies to him who has ac­quired the possession of a thing under a good title, as he supposes. He who possessed a thing bona fide, had a capacity of acquiring the ownership by usucapion, and had the protection of the actio Publiciana. Thus a person who received a thing either mancipi, or nee mancipi, not from the owner, but from a person whom he believed to be the owner, could acquire the ownership by usucapion. (Gaius, ii. 43 ; Ulp. Frag. xix. 8.) A thing which wasfurtiva or vi possess*?^ or the res mancipi of a female who was in the tutela of her agnati, unless .it was delivered by her under the auctoritas of her tutor, was not subject to usucapion, and therefore in these cases the presence or absence of bona fides was immaterial. (Gaius, i. 1929 ii. 45, &c.; Cic. Ad Att. i. 5, Pro Flacco^ c. 34.) A person who bought from a pupillus without the auctoritas of his tutor, or with the auctoritas of a person whom he knew not to be the tutor^ did not purchase bona fide ; that is, he was guilty of a legal fraud. A sole tutor could not purchase a thing bona fide from his pupillus; and if he purchased it from another to whom a non bona fide sale had been made, the transaction was null. (Dig. 26. tit. 8.

8.5.)

In various actions arising out of mutual dealings, such as buying and selling, lending and hiring, partnership, and others, bona fides is equivalent to aequum and jiistum ; and such actions were some­times called bonae fidei actiones. The formula of the praetor, which was the authority of the judex, empowered him in such cases to inquire and deter­mine ex bona fide^ that is according to the real merits of the case : sometimes aequius melius was

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BONORUM CESSIO.

used instead of ex bona fide. (Gaius, iv. 62; Cic. Off. iii. 17, Topic, c. 17 ; Brissonius, De Formulis^ &c. lib. v.)

BONA RAPTA. [furtum.]

BONA. VACA'NTIA were originally the pro­perty which a person left at his death without having disposed of it by will, and without leaving any heres. Such property was open to occupancy, and so long as the strict laws of inheritance ex­isted, such an event must not have been uncom­mon. A remedy was, however, found for this by the bonorum possessio of the praetor.

It does not appear that the state originally claimed the property of a person who died intes­tate and without Jieredes legitimi. The claim of the state to such property seems to have been first established by the Lex Julia et Papia Poppaea. [BoNA caduca.] The state, that is, in the earlier periods the aerarium, and afterwards the fiscus, did not take such property as heres, but it took it per universitatem. In the later periods of the empire, in the case of a soldier dying without heredes, the legion to which he belonged had a claim before the fiscus ; and various corporate bodies had a like preference in the case of a mem­ber of the corporation dying without heredes. (Marezoll, Lekrbuch der Instit. des Rom. Rechts; Savigny, System, efcc. vol. ii. p. 300.) [G. L.]

BONORUM CESSIO. There were two kinds of bonorum cessio, in jure and extra jus. The In jure cessio is treated under its proper head.

The bonorum cessio extra jus was introduced by a Julian law, passed either in the time of Julius Caesar or Augustus,, which allowed an insolvent debtor to give up his property to his creditors. The debtor might declare his willingness to give up his property by letter or by a verbal message. The debtor thus avoided the infamia consequent on the bonorum emtio, which was involuntary, and he was free from all personal execution. He was also allowed to retain a small portion of his property for his support. An old gloss describes the bonorum cessio thus : Cedere bonis est ab uni~ versitaie rerum suarum recedere.

The property thus given up was sold, and the proceeds distributed among the creditors. The purchaser did not obtain the Quiritarian ownership of the property by the act of purchase. If the debtor subsequently acquired property, this also was liable to the payment of his old debts, with some limitations, if they were not already fully satisfied. A constitution of Alexander Severus (Cod. 7. tit. 71. s. 1) declares that those who made a bonorum cessio were not released, unless the creditors were fully paid ; but they had the privi­lege of not being imprisoned, if judgment was given against them in an action by one of their old cre-ditors»

The benefit of the lex Julia was extended by imperial constitutions to the provinces.

The history of the bonorum cessio does not seem quite clear. The Julian law, however, was not the oldest enactment which relieved the person of the debtor from being taken in execution. The lex Poetelia Papiria (b. c. 327) exempted the per­son of the debtor (nisi qui noocam meruisset\ and only made his property (bona) liable for his debts. It does not appear from the passage in Livy (viii. 28) whether this was a bonorum cessio in the sense of the bonorum cessio of the Julian law, or only a bonorum emtio with the privilege of freedom

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