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p207 Bona Fides

Unsigned article on p207 of

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

BONA FIDES. This term frequently occurs in the Latin writers, and particularly in the Roman jurists. It can only be defined 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 the 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 nec 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 was furtiva or vi possessa, 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.192, II.45, &c.; Cic. ad Att. I.5, Pro Flacco, c34). 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 s5).

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 justum; 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 used instead of ex bona fide. (Gaius, IV.62; Cic. Off. III.17, Topic. c17; Brissonius, De Formulis, &c. lib. V.)


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