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 p208  Bonorum Emtio

Article by George Long, M.A., Fellow of Trinity College
on p208 of

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

BONO′RUM E′MTIO ET E′MTOR. The expression bonorum emtio applies to a sale of the property either of a living or of a dead person. It was in effect, as to a 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 heres 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 (II.24): "ne quis militis, donec in castris esset, bona possideret aut venderet." The creditors were said in possessionem rerum debitoris mitti: sometimes a single creditor obtained the possessio. When several creditors obtained the possessio, it was usual to entrust the management of the business 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, c15), 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 owner­ship. Both the bonorum possessores and the emtores had no legal rights (directae actiones) against the debtors of the person whose property was possessed or purchased, nor could they be legally sued by them; but the praetor allowed utiles actiones both in their favour and against them (Gaius, III.77; IV.35, 65 and 111; Dig.42 4, 5; Savigny, Das Recht des Besitzes, p410, 5th ed.)

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