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 p983  Interdictum Quorum Bonorum

Article by George Long, M.A., Fellow of Trinity College
on pp983‑984 of

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

QUORUM BONORUM, INTERDICTUM. The object of this interdict is to give to the Praetorian heres the possession of anything belonging to the hereditas which another possesses pro herede or pro possessore. The name of this Interdict is derived from the introductory words, and it runs as follows: "Ait Praetor: Quorum bonorum ex edicto meo illi possessio data est: quod de his bonis pro herede aut possessore possides, possideresve si nihil usucaptum esset: quod quidem dolo malo fecisti, uti desineres possidere: id illi restituas." The plaintiff is entitled to this Interdict when he has obtained the Bonorum Possessio, and when any one of the four following conditions apply to the defendant.

1. Quod de his bonis pro herede,

2. Aut pro possessore possides,

3. Possideresve si nihil usucaptum esset,

4. Quod quidem dolo malo fecisti, uti desineres possidere.

The first two conditions are well understood, and apply also to the case of the hereditatis petitio. The fourth condition also applies to the case of the hereditatis petitio and the rei vindicatio; but instead of "quod quidem" the reading "quodque" has been proposed, which seems to be required, for No. 4 has no reference to No. 3, but is itself a new condition. The words of No. 3 have caused some difficulty, which may be explained as follows.

In establishing the Bonorum Possessio, the Praetor intended to give to many persons, such as emancipated children and Cognati, the same rights that the heres had; and his object was to accomplish this effectually. The Roman heres was the representative of the person who had died and left an hereditas, and by virtue of this representative or juristical fiction of the person of the dead having a continued existence in the person of the heres, the heres succeeded to his property and to all his rights and obligations. In the matter of rights and obligations the Praetor put the bonorum possessor in the same situation as the heres by allowing him to sue in respect of the claims that the deceased had, and allowing any person to sue him in respect of claims against the deceased, in an actio utilis or fictitia (Ulp. Frag. tit. 28 s12; Gaius, IV.34). In respect to the property, according to the old law any person might take possession of a thing belonging to the hereditas, and acquire the owner­ship of it in a certain time by usucapion (Gaius, II.52‑58). The persons in whose favour the Praetor's edict was made could do this as well as any other person; but if they found any other person in possession of anything belonging to the hereditas, they could neither claim it by the vindicatio, for they were not owners, nor by the hereditatis petitio, for they were not heredes. To meet this difficulty the Interdictum Quorum Bonorum was introduced, the object of which was to aid the Bonorum Possessor in getting the possession (whence the title of the Interdictum adipiscendae possessionis) and so commencing the usucapion.  p984 If he lost the possession before the usucapion was complete, he could in most cases recover it by the Possessorial Interdicts, properly so called, or by other legal means. This, according to Savigny, is the origin of the Bonorum Possessio.

In course of time when Bonitarian owner­ship (in bonis) was fully established and co-existed with Quiritarian owner­ship, this new kind of owner­ship was attributed to the Bonorum Possessor, after he had acquired the Bonorum Possessio, and thus all that belonged to the deceased ex jure Quiritium became his in bonis and finally by Usucapion, ex jure Quiritum; though in the mean time he had most of the practical advantages of Quiritarian owner­ship. Ultimately the Bonorum Possessio came to be considered as a species of hereditas, and the like forms of procedure to those in the case of the real hereditas were applied to the case of the Bonorum Possessio; thus arose the possessoria hereditatis petitio, which is mentioned by Gaius, and cannot therefore be of later origin than the time of Marcus Aurelius. Thus the new form of procedure, which would have rendered the Interdict Quorum Bonorum unnecessary, if it had been introduced sooner, co-existed with the Interdict, and a person might avail himself of either mode of proceeding, as he found best (Gaius, III.34). In the legislation of Justinian, we find both forms of procedure mentioned, though that of the Interdict has altogether fallen into disuse (Inst. 4 15).

According to the old law, any possessor, without respect to his title, could by usucapion pro herede obtain the owner­ship of a thing belonging to the hereditas; and of course the Bonorum Possessor was exposed to this danger as much as the Heres. If the time of Usucapion of the possessor was not interrupted by the first claim, the heres had no title to the Interdict, as appears from its terms, for such a possessor was not included in No. 1 or 2. Hadrian (Gaius, II.57) by a senatusconsultum changed the law so far as to protect the heres against the complete usucapion of an Improbus Possessor, and to restore the thing to him. Though the words of Gaius are general, there can be no doubt that the Senatusconsultum of Hadrian did not apply to the Usucapion of the Bonorum Possessor nor to that of the Bonae fidei possessor. Now if we assume that the Senatusconsultum of Hadrian applied to the Bonorum Possessor also, its provisions must have been introduced into the formula of the Interdict, and thus the obscure passage No. 3 receives a clear meaning, which is this: You shall restore that also which you no longer possess pro possessore, but once so possessed, and the possession of which has only lost that quality in consequence of a lucrativa usucapio. According to this explanation the passage No. 3 applies only to the new rule of law established by the Senatusconsultum of Hadrian, which allowed the old usucapion of the improbus possessor to have its legal effect, but rendered it useless to him by compelling restitution. In the legislation of Justinian consequently these words have no meaning, since that old usucapion forms no part of it; yet the words have been retained in the compilation of Justinian, like many others belonging to an earlier age, though in their new place they are entirely devoid of meaning.

(Savigny, Ueber das Interdict Quorum Bonorum, Zeitschrift, &c. vol. V; Dig. 43 tit. 2; Gaius, IV.144).

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