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p1075 Successio

Article by George Long, M.A., Fellow of Trinity College
on pp1075‑1076 of

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

SUCCE′SSIO. This word is used to denote a right which remains unchanged as such, but is changed with reference to its subject. The change is of such a nature that the right when viewed as attached to a new person is founded on a preceding right, is derived from it and depends on it. The right must accordingly begin to be attached to the new person at the moment when it ceases to be attached to the person who previously had it; and it cannot be a better right than it was to the person from whom it was derived (Dig. 50 tit. 17 s.175 §1). Thus in the case of the transfer of ownership by tradition, the new ownership begins when the old ownership ceases, and it only arises in case the former possessor of the thing had the ownership, that is, prior ownership is a necessary condition of subsequent ownership. This kind of change in ownership is called Successio. It follows from the definition of it that Usucapion is not included in it; for Usucapion is an original acquisition. The successio of a heres is included, for though there might be a considerable interval between the death and the aditio hereditatis, yet when the hereditas was once taken possession of, the act of aditio had by a legal fiction relation to the time of the death. Thus whereas we generally view persons who possess rights as the permanent substance and the rights as accidents, in the case of Succession the right is the permanent substance, which persists in a series of persons.

The notion of Succession applies mainly though not exclusively to property. With respect to the law that relates to Familia, it applies so far as the parts of the Familia partake of the nature of property, such as the power of a master over his slave, and the case of Patronatus and Mancipii causa. Thus the patria potestas and the condition of a wife in manu may be objects of succession. It applies also to the case of adoption.

Successio is divided into Singular Succession and Universal Succession. These terms conveniently express the notion, but they are not Roman terms. The Roman terms were as follows: in universum jus, in eam duntaxat rem succedere (Dig. 21 tit. 3 s3); per universitatem, in rem succedere (Gaius, II.97; Dig.43 tit. 3 s.1); in omne jus mortui, in singularum rerum dominium succedere (Dig. 29 tit. 2 s.37); in universa bona, in rei tantum dominium succedere (Dig. 39 tit. 2 s.24).

It is Singular succession when a single thing as an object of ownership is transferred, or several things together, when they are transferred as individual things, and not as having any relation to one another in consequence of this accidental common mode of transfer. The person into whose place another comes by Singular succession, is p1076called Auctor with respect to his successor. In order to be Singular succession, the whole right of the auctor must be transferred. He to whom an estate in fee simple is transferred, takes by Singular succession: he to whom a life estate is granted out of an estate in fee simple, does not take by Singular succession.

The object of Universal succession is property as an ideal whole (universitas) without any reference to its component parts. Yet the notion of succession applies as well to a fraction of this ideal whole as to the unit which this ideal whole is conceived to be; for the whole property being viewed as a unit, it may be conceived to be divided into fractional parts without any reference to the several things which are included in the ideal whole. It was also consistent with this species of succession that many particular things should be incapable of being transferred: thus in the case of an hereditas the ususfructus of the deceased did not pass to the heres, and in the case of adrogation neither the ususfructus nor the debts of the adrogated person, according to the old law.

In the case of Obligationes there is no Singular succession: there is either the change of the Obligatio into another by Novatio, or the suing for the debt by another (cessio actionis).

The object of Universal succession is a Universitas as such, and it is by means of the words Universitas and Universum, that the Romans denote this kind of succession; but it would be erroneous to infer from this use of the term that succession applies to all Universitates. Its proper application is to property, and the true character of Universal succession is the immediate passing over from one person to another of all the credits and debts that belong or are attached to the property. This happens in the case of an hereditas: heres in omne jus mortui, non tantum singularum rerum dominium succedit, quum et ea quae in nominibus sunt ad heredem transeant (Dig. 29 tit. 2 s.37); and in the case of adrogation as to most matters. The debts would be transferred by adrogation if this were not accompanied with a capitis deminutio. Credits and debts could not be transferred by Singular succession. The cases of Universal succession were limited and the notion could not be applied and made effectual at the pleasure of individuals. The most important cases of Universal succession were the property of a deceased person; as hereditas, bonorum possessio, fideicommissaria hereditas, and others of the like kind. The property of a living person might be transferred in this way, in the case of adrogatio, conventio in manum, and the bonorum emtio (Gaius, II.98). In many other cases though the object is to transfer a whole property, it is in fact effected by the transfer of the several things: the following are instances of this kind of transfer, the gift of a whole property, or its being made a Dos, or being brought into a Societas, or the sale of an hereditas by a heres.

The notion of a Universal succession among the Romans appears to have been derived from the notion of the hereditas, to which it was necessary to attach the credits and debts of the deceased and the sacra. Other instances of Universal succession such as the Bonorum Possessio grew out of the notion of the hereditas; and it was found convenient to extend it to other cases, such as Adrogation. But, as already observed, the extension of the notion was not left to the pleasure of individuals, and accordingly this doctrine was, to use a Roman phrase, Juris Publici.

The words Successio, Successor, Succedere by themselves have a general meaning and comprise both kinds of Succession. Sometimes these words by themselves signify universal succession, as appears from the context (Gaius, III.83), and by such expressions as heredes ceterique successores. In other cases the kind of succession is denoted by appropriate words as per universitatem succedere, acquirere, transire, in universum jus succedere, &c. in the case of Universal Succession; and in rem, in rei dominium, in singularum rerum dominium succedere, &c. in the case of Singular Succession.

In the phrase "per universitatem succedere" the notion of universal succession is not directly expressed; for the phrase has immediate reference to the acquisition of a single thing, and it is only by means of the word Universitas that we express the notion, that the acquisition of the individual thing is effected by means of the acquisition of the whole.

(Savigny, System, &c. III. p8; Gaius, II.97, &c.; Puchta, Inst. II. § 198.)


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