obligation on a borrower to repay the money or corn advanced to
him was made actionable, under the Silian and Calpurnian laws
respectively, by a stipulation contemporaneous with the loan.
With the rise of jus gentium loan became actionable on its own
merits—that is to say, the advance and receipt of money as a loan
of itself laid the borrower under a stricti juris obligation to repay it,
even though no stipulatory engagement had intervened; the res—in
this case the giving and receiving mutui causa—completed the
contract. The obligation that arose from it was purely unilateral,
and enforceable, where the loan was of money, by the same action—certae
pecuniae creditae—as stipulation and literal contract; and so
strictly was it construed that interest on the loan was not claimable
along with it, the res given and received being the full measure of the
obligation of repayment. The other three—commodate, deposit
and pledge—became independent real contracts much later than
mutuum, possibly not all at the same time, and none of them apparently
until very late in the Republic. All of them, of course, had
been long known as transactions of daily life; the difficulty is to
say when they first became actionable in the urban praetor's court
(for in transactions with peregrins actions in factum would doubtless
be granted), and under what guise.
It is impossible within the space at our command to criticize the various theories entertained of their vicissitudes, for they necessarily vary to some extent in regard to each. We must content ourselves, therefore, with the simple statement that eventually, and within the period with which we are now dealing, they came to be recognized as independent real contracts, the res by which they were completed being the delivery of a thing by one person to another for a particular purpose, on the understanding that it was to be returned when that purpose was served. And it is to be noted that, while mutuum transferred the property of the money lent, the borrower being bound to return not the identical coins but only an equal amount, in pledge it was only the possession that passes, while in commodate and deposit the lender or depositor retained both property and (legal) possession, the borrower or depositary having nothing more than the natural detention. In all but mutuum, therefore, there was trust; the holder was bound, to an extent varying according to circumstances, to care for what he held as if it were his own, and entitled to be reimbursed for outlay on its maintenance—bound to return it, yet excused if his failure to do so was due to a cause for which in fairness he could not be held responsible. Consequently the actions on these three contracts, differing from that on mutuum, were all bonae fidei, the judge being vested with full discretion to determine what was fair and equitable in each individual case.
Praetorian Amendments on the Law of Succession.—The most important change in the law of succession during the latter half of the Praetorian bonorum possessio. Republic was due to the praetors. They introduced, under the technical name of bonorum possessio,[1] what was really beneficial enjoyment of the estate of a deceased person without the legal title of inheritance. There is much to lead to the conclusion that the series of provisions in regard to it which we find in the Julian consolidation of the Edict were the work of a succession of praetors, some of them probably not under the Republic but under the Empire; but it will be convenient to give here a general view of the subject as a whole, disregarding the consideration that some of its features may not have been given to it within the period now under notice.
Justinian, speaking of the origin of bonorum possessio, observes that in promising it to a petitioner the praetors were not always Testamentary. actuated by the same motives; in some cases their object was to facilitate the application of the rules of the jus civile, in some to amend their application according to what they believed to be the spirit of the XII. Tables, in others, again, to set them aside as inequitable.[2] It is not unreasonable to assume that it was with the purpose of aiding the jus civile that the first step was taken in what gradually became a momentous reform; and it is probable that this first step was the announcement by some praetor that, where there was dispute as to an inheritance, and a testament was presented to him bearing not fewer seals than were required by law, he would give possession of the goods of the defunct to the heir named in it.[3] In this as it stands there is nothing but a regulation of possession of the bona of the inheritance pending the question of legal right. Just as between two parties contending about the ownership of a specific thing in a rei vindicatio the praetor first settled the question of interim possession, so did he promise to do here when a question was about to be tried about the right to an inheritance (si de hereditate ambigitur). It was a provisional arrangement merely, and very necessary in view of the state of the law which permitted a third party, apart from any pretence of title, to step in and complete a usucapio pro herede by a year's possession of the effects of the inheritance. Even at the time when the Edict was closed it was not necessarily more than a provisional grant; for, if heirs-at-law of the deceased appeared and proved that, although the testament bore on the outside the requisite number of seals, yet in fact some solemnity of execution, such as the familiae venditio or testamenti nuncupatio, had been omitted, the grantee had to yield them up the possession that had been given him pending inquiry. It was only by a rescript of Antoninus Pius that it was declared that a plea by the heir-at-law of invalidity of a testament on the ground of defect of formalities of execution might be defeated by an exceptio doli, on the principle that it was contrary to good faith to set aside the wishes of a testator on a technical objection that was purely formal. Thus was the bonorum possessio secundum tabulas, i.e. in accordance with a testament, from being originally one in aid of the jus civile, in course of time converted into one in contradiction of it. That the motives and purposes of the series of praetors who built up the law of bonorum possessio must have varied in progress of years is obvious; and, once the machinery had been invented, nothing was easier than to apply it to new ideas. The praetor could not make a man heir—that he always disclaimed; but he could give a man, whether heir or not, the substantial advantages of inheritance, and protect him in their enjoyment by praetorian remedies. He gave him possession of the goods of the deceased, with summary remedies for ingathering them, which, once in his hands, would become his in quiritarian right on the expiry of the period of usucaption; and subsequently, by interpolation into the formula of a fiction of heirship, he gave him effectual personal actions against debtors of the deceased, rendering him liable in the same way to the deceased's creditors.
Another variety of the bonorum possessio was that contra tabulas—in opposition to the terms of a testament. If a testator had neither Contratabular. instituted nor expressly disinherited a son who was one of his sui heredes, then his testament was a nullity, and the child passed over had no need of a praetorian remedy. Where sui heredes other than sons were passed over the jus civile upheld the will but allowed them to participate with the instituted heirs by a sort of accrual. But the Edict went further; for, if the institute was a stranger, i.e. was not a person in the potestas of the testator with the child passed over, then, on the petition of the latter, the praetor gave him and any other sui concurring with him possession of the whole estate of the deceased as on intestacy, the institute being left with nothing more than the empty name of heir. Another application of the bonorum possessio contra tabulas was to the case of emancipated children of the testator. By the jus civile he was not required to institute or disinherit them; for by their emancipation they had ceased to be sui heredes, and had lost that interest in the family estate which was the reason why they had to be mentioned in the testament of their paterfamilias. The praetors—although probably not until the empire, and when the doctrines of the jus naturale were being more freely recognized—put them on the same footing as unemancipated children, requiring that they also should be either instituted or disinherited, and giving them bonorum possessio if they were not. It was contra tabulas in the sense that it displaced the instituted heirs either wholly or partially—wholly when the institutes were not children of the deceased, partially when they were. In the latter case, at least when sui were affected by it, the grant of bonorum possessio was under the equitable condition that the grantees should collate or bring into partition all their own acquisitions since their emancipation.
The third variety of bonorum possessio was that granted ab intestato. The rules of the jus civile in reference to succession on Ab intestato. intestacy were, as we have seen, extremely strict and artificial. They admitted neither emancipated children nor agnates who had undergone capitis deminutio; they admitted no female agnate more remote than a sister; if the nearest agnate or agnates declined, the right did not pass to those of the next degree; mere cognates, kinsmen of the deceased who were not agnates, e.g. grandchildren or others related to him through females and agnates capite minuti, were not admitted at all; while a wife had no share unless she had been in manu of the deceased and therefore filiae loco. All these rules the praetors amended, and so far paved the way for the revolution in the law of intestate succession which was accomplished by Justinian.
They established four orders or classes of heirs. (1) Displacing the sui heredes of the jus civile, they gave the first place to descendants (liberi), including in the term all those whom the deceased would have been bound either by the jus civile or the Edict to institute or disinherit had he made a will, i.e. his wife in manu, sons and daughters of his body whether in potestate at his death or emancipated, the representatives of sons who had predeceased him, and adopted children in his potestas when he died. (2) On failure
- ↑ For a résumé of the principal theories (down to 1870) about the origin of bonorum possessio, see Danz, Geschichte d. röm. Rechts, vol. ii. § 176. Of the later literature it is enough to mention Leist, in the first 4 vols. of his continuation of Glück's Pandecten-Commentar (Erlangen, 1870-1879); Sohm, in his Inst. d. r. R. (Eng. trans., 2nd ed.), pp. 580 seq.; A. Schmidt, in Z. d. Sav. Stift. xvii. 324 seq.
- ↑ Inst. iii. 9 pr. and § 1.
- ↑ Cic., In Verr. II. i. 45, § 117. He says (writing in 70 B.C.) that an edict to that effect was already tralaticium, i.e. had been adopted year after year by a series of praetors. Gaius (ii. 119) speaks of seven at least as the requisite number of seals; i.e. probably those of the libripens and the five citizen witnesses, and that of the antestatus, whose functions are not well understood, but whose official designation appended to his seal recurs so regularly in inscriptions as to leave no doubt that his was originally the seventh.
