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 p205  Bona

Article by George Long, M.A., Fellow of Trinity College
on pp205‑206 of

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

BONA. The word bona is sometimes used to express the whole of a man's property (Paulus, Recept. Sentent. V.6.16; Dig. 37, tit. 1, s3; 50 tit. 16, s49); and in the phrases bonorum emtio, cessio, possessio, ususfructus, the word "bona" is equivalent to property. It expresses all that a man has, whether as owner or merely as possessor; and every thing to which he has any right. But it is said (Dig. 50 tit. 16 s83): "Proprie bona dici non possunt quae plus incommodi quam commodi habent." However, the use of the word in the case of universal succession comprehended both the commodum and incommodum of that which passed to the universal successor. But the word bona is simply the property as an object; it does not express the nature of the relation between it and the person who has the owner­ship or the enjoyment of it, any more than the words "all that I have," "all that I am worth," "all my property," in English show the legal relation of a man to that which he thus describes. The legal expression in bonis, as opposed to dominium, or Quiritarian owner­ship, and the nature of the distinction will be easily apprehended by any person who is slightly conversant with English law.

"There is," says Gaius (II.40), "among foreigners (peregrini) only one kind of owner­ship (dominium), so that a man is either the owner of a thing or he is not. And this was formerly the case among the Roman people; for a man was either owner ex jure Quiritium, or he was not. But afterwards the owner­ship was split, so that now one man may be the owner (dominus) of a thing ex jure Quiritium, and yet another may have it in bonis. For instance, if, in the case of a res mancipi, I do not transfer it to you by mancipatio, nor by the form in jure cessio, but merely deliver it to you, the thing indeed becomes your thing (in bonis), but it will remain mine ex jure Quiritium, until by possession you have it by usucapion. For when the usucapion is once complete, from that time it begins to be yours completely (pleno jure), that is, it is yours both in bonis and also yours ex jure Quiritium, just as if it had been mancipated to you, or transferred to you by the in jure cessio." In this passage Gaius refers to the three modes of acquiring property which were the peculiar rights of Roman citizens, mancipatio, in jure cessio, and usucapion, which are also particularly enumerated by him in another passage (II.65).

From this passage it appears that Quiritarian owner­ship of res mancipi originally and properly signified that owner­ship of a thing which the Roman law recognised as such; it did not express a compound but a simple notion, which was that of absolute owner­ship. But when it was once established that one man might have the Quiritarian owner­ship, and another the enjoyment, and the sole right to the enjoyment of the same thing, the complete notion of Quiritarian owner­ship became a notion compounded of the strict legal notion of owner­ship, and that of the right to enjoy, as united  p206 in the same person. And as a man might have both the Quiritarian owner­ship and the right to the enjoyment of a thing, so one might have the Quiritarian owner­ship only, and another might have enjoyment of it only. This bare owner­ship was sometimes expressed by the same terms (ex jure Quiritium) as that owner­ship which was complete, but sometimes it was appropriately called nudum jus Quiritium (Gaius, III.100), and yet the person who had such bare right was still called dominus, and by this term he is contrasted with the usufructuarius and the bonae fidei possessor.

The historical origin of this notion, of the separation of the owner­ship from the right to enjoy a thing, is not known; but it may be easily conjectured. When nothing was wanting to the transfer of owner­ship but a compliance with the strict legal form, we can easily conceive that the Roman jurists would soon get over this difficulty. The strictness of the old legal institutions of Rome was gradually relaxed to meet the wants of the people, and in the instance already mentioned, the jurisdiction of the praetor supplied the defects of the law. Thus, that interest which a man had acquired in a thing, and which only wanted certain forms to make it Quiritarian owner­ship, was protected by the praetor. The praetor could not give Quiritarian owner­ship, but he could protect a man in the enjoyment of a thing — he could maintain his possession: and this is precisely what the praetor did with respect to those who were possessors of public land; they had no owner­ship, but only a possession, in which they were protected by the praetor's interdict [Agrariae Leges, p38].

That which was in bonis, then, was that kind of interest or owner­ship which was protected by the praetor, which interest may be called bonitarian or beneficial owner­ship, as opposed to Quiritarian or bare legal owner­ship. It does not appear that the word dominium is ever applied to such bonitarian owner­ship except it may be in one passage of Gaius (I.54), the explanation of which is not free from difficulty.

That interest called in bonis, which arose from a bare tradition of a res mancipi, was protected by the exceptio, and the actio utilis in rem (Dig. 41 tit. 1 s52). Possessio is the general name of the interest which was thus protected. The person who had a thing in bonis and ex justa causa was also entitled to the actio Publiciana, in case he lost the possession of the thing before he had gained the owner­ship by usucapion (Gaius, IV.36).

The phrases bonorum possessio, bonorum possessor, might then apply to him who has had a res mancipi transferred to him by tradition only; but the phrase applies also to other cases in which the praetor by the help of fictions gave to persons the beneficial interest to whom he could not give the owner­ship. When the praetor gave the goods of the debtor to the creditor, the creditor was said in possessionem rerum, or bonorum debitoris mitti (Dig. 42 tit. 5 s14, &c.). [Bonorum Emtio; Bonorum Possessio.]

As to things nec mancipi, the owner­ship might be transferred by bare tradition or delivery, and such owner­ship was Quiritarian, inasmuch as the Roman law required no special form to be observed in the transfer of the owner­ship of res mancipi. Such transfer was made according to the jus gentium (in the Roman sense of that term) (Gaius, II.26, 41, 20; Ulp. Frag. I.16).

(Zimmern, Ueber das Wesen des sogenannten bonitarischen Eigenthums, Rheinisch. Mus. für Jurispr. III.3.)

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