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On this page: Bonorum Collatio – Bonorum Emtio Et Emtor – Bonorum Possessio



from arrest. The Tablet of Heraclea (Mazocchi, ,p, 423) speaks of those qui in jure bonam copiam jurabant; a phrase which appears to be equivalent to the bonorum cessio, and was a declaration on oath in jure, that is, before the praetor, by the debtor that his property was sufficient to pay his debts. But this was still accompanied with in- famia. So far as we can learn from Livy, no. such declaration of solvency was required from the debtor by the Poetelia lex. The Julian law ren­ dered the process of the cessio bonorum more simple, by making it a procedure extra jus, and giving further privileges to the insolvent. Like several other Julian laws, it appears to have con­ solidated and extended the provisions of previous enactments. The term bonorum cessio is used in the Scotch law, and the early practice was derived from the Roman system. (Gaius, iii. 28 ; Dig. 42. tit. 3 ; Cod. vii. tit. 71.) [G. L.j

BONORUM COLLATIO. By the strict rules of the civil law an emancipated son had no right to the inheritance of his father, whether he died testate or intestate. But, in course of time, the praetor granted to emancipated children the privilege of equal succession with those who re­ mained in the power of the father at the time of his death ; and this grant might be either contra tabulas or al) intestato. But this favour was granted to emancipated children only on condition that they should bring into one common stock with their father's property, and for the purpose of an equal division among all the father's children, what­ ever property they had at the time of the father's death, and which would have been acquired for the father in case they had still remained in his power. This was called bonorum collatio. It re­ sembles the old English hotchpot, upon the prin­ ciple of which is framed the provision in the statute 22 and 23 Charles II. c. 10. s. 5, as to the distri­ bution of an intestate's estate. (Dig. 37. tit. 6 ; Cod. vi. tit. 20 ; Thibaut, System des Pandekt&n Rechts, § 901, &c., 9th ed., where the rules appli­ cable to the bonorum collatio are more particularly stated.) [G. L.]

BONORUM EMTIO ET EMTOR. The expression bonorum emtio applies to a sale of the property either of a living or of a dead person. It wa.s in effect, as to a living debtor, an execution. In the case of a living person, his goods were 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 did not pay any sum of money which he was by judicial sentence ordered to pay, within the time fixed by the laws of the Twelve Tables (Aul. Gell. xv. 13, xx. 1) or by the praetor's edict. In the case of a dead person, his property was sold when it was ascertained that there was neither hefes nor bono­rum possessor, nor any other person entitled, to succeed to it. In this case the property belonged to the state after the passing of the Lex Julia et Papia Poppaea. If a person died in debt, the prae­tor ordered a sale of his property on the application of the creditors. (Gaius, ii. 154, 167.) In the case of the property of a living person being sold, the praetor, on the application of the creditors, or­dered it to be possessed (possideri) by the creditors for thirty successive days, and notice to be given of the sale. This explains the expression in Livy (if. 24): " ne quis militis, donee in castris esset,


bona possideret aut venderet." The creditors were said in possessionem r&ntm debitoris mitti: some­ times a single creditor obtained the possessio. When several creditors obtained the possessio, it was usual to entrust the management of the busi­ ness to one of them, who was chosen by a majority of the creditors. The creditors then met and chose a magister, that is, a person to sell the property (Cic. Ad Att. i. 9, vi. 1 ; Pro P. Quintio, c. 15), or a curator bonorum if no immediate sale was intended. The purchaser, emtor, obtained by the sale only the bonorum possessio: the property was his In bonis, until he acquired the Quiritarian ownership by usucapion. The foundation of this rule seems to be, that the consent of the owner was considered necessary in order to transfer the owner­ ship. Both the bonorum possessores and the em- tores had no legal rights (directae actiones} against the debtors of the person whose property was pos­ sessed or purchased, nor could they be legally sued by them; but the praetor allowed utiles ac- tiones both in their favour and against them. (Gaius, iii. 77; iv. 35, 65 and 111; Dig. 42. tit. 4, 5 ; Savigny. Das Recht des Besitzes, p. 410, 5th ed.) [G. L.]

BONORUM POSSESSIO is defined by Ulpian (Dig. 37. tit. 1. s. 3) to be " the right of suing for or retaining a patrimony or thing which belonged to another at the time of his death." The strict laws of the Twelve Tables as to inheritance were gradually relaxed by the praetor's edict, and a new kind of succession was introduced, by which a person might have a bonorum possessio who could have no hereditas or legal inheritance.

The bonorum possessio was given by the edict both contra tabulas', secundum tabulas^ and intes~ tati.

An emancipated son had no legal claim on 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 bonormn possessio contra tabulas, 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 bonorum possessio was given both to children of the blood (naturales) and to adopted children, provided the former were not adopted into any other family, and the latter were in the adoptive parent's power at the time of his death. 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 a son of his own blood as his successor.

The bonqrum possessio secundum tabulas was that possession which the praetor gave, conform­ably to the words of the will, to those named in it as heredes, when there was no person intitled to make a claim against the will, or none who chose to make such a claim. It was also given secundum tabulas in cases where all the requisite legal form­alities had not been observed, provided there were seven proper witnesses to the will. (Gaius, ii. 147, " si modo defunctus," &c.)

In the case of intestacy (intestati) there were seven degrees of persons who might claim the bonorum possessio, each in his order, Upon there being no claim of a prior degree. The three first class were children, legitimi heredes and proximi cognati. Emancipated children could claim as well

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