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p206 Bona Caduca

Article by George Long, M.A., Fellow of Trinity College
on pp206‑207 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

BONA CADUCA. Caducum literally signifies that which falls: thus, glans caduca, according to Gaius (Dig. 50 tit. 16 s30), is the mast which falls from a tree. Caducum, in its general sense, might be any thing without an owner, or what the person entitled to neglected to take (Cic. De Or. III.31, Phil. X.5); but the strict legal sense of caducum and bona caduca, is that stated by Ulpian (Frag. XVII. De Caducis), which is as follows:—

If a thing is left by testament to a person, so that he can take it by the jus civile, but from some cause has not taken it, that thing is called caducum, as if it had fallen from him; for instance, if a legacy was left to an unmarried person, or a Latinus Junianus; and the unmarried person did not within a hundred days obey the law, or if within the same time the Latinus did not obtain the Jus Quiritium, or had become a peregrinus (see Cujacius, ad Ulpiani Titulos XXIX. vol. I ed. Neapol. 1758), the legacy was caducum. Or if a heres ex parte, or a legatee, died before the opening of the will, the thing was caducum. The thing which failed to come to a person in consequence of something happening in the life of the testator was said to be in causa caduci; that which failed of taking effect between the death of the testator and the opening of the will, was simply called caducum (Comp. Dig. 28 tit. 5 s62, and Dig. 31 s51; Code Civil, Art. 1039, &c.).

The law above alluded to is the Lex Julia et Papia Poppaea, which is sometimes simply called Julia, or Papia Poppaea. This law, which was passed in the time of Augustus (A.D. 9), had the double object of encouraging marriages and enriching the treasury — aerarium (Tacit. Ann. III.25), and contained, with reference to these two objects, a great number of provisions. Martial (VEp. 75) alludes to a person who married in order to comply with the law.

That which was caducum came, in the first place, to those among the heredes who had children; and if the heredes had no children, it came among those of the legatees who had children. The law gave the jus accrescendi, that is, the right to the caducum as far as the third degree of consanguinity, both ascending and descending (Ulp. Frag. 18), to those who were made heredes by the will. Under the provisions of the law, the caducum, in case there was no prior claimant, belonged to the aerarium; or, as Ulpian (XXVIII.7) expresses it, if no one was entitled to the bonorum possessio, or if a person was entitled, but did not assert his right, the bona became public property (populo deferuntur), according to the Lex Julia caducaria; but by a constitution of the Emperor Antoninus Caracalla it was appropriated to the fiscus: the jus accrescendi above mentioned was, however, still retained. The lawyers, however (viri prudentissimi), by various devices, such as substitutions, often succeeded in making the law of no effect. A case is mentioned in the Digest (28 tit. 4 s3), in which bona caduca were claimed by the fiscus in the time of Marcus Antoninus, and another in which the fiscus is mentioned even under Hadrian, where one would expect to find the term aerarium used (Savigny, System, &c. II.273, note qq.)

p207 He who took the portion of a heres, 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-mentioned 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; Gaius, I.150, II.207, II.º144, 286; Lipsius, Excurs. ad Tacit. Ann. III.25; Marezoll, Lehrbuch der Institut. des Röm. Rechts.). As to the Dos Caduca, see Dos.

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