in which he could lose the inheritance was by failing to perform the § 109. ULP. tit. 22 § 25: Extraneus heres, siquidem cum cretione sit GAJ. Inst. II § 168: Sicut autem qui cum cretione heres insti- L. 17 C. de jure delib. (6, 30) (ARCAD., HONOR. ET THEOD.): Cretionum scrupulosam sollemnitatem hac lege penitus amputari decernimus. As to the original nature of cretio v. infra, p. 544. Hereditas jacens is the term applied to an inheritance which has not yet vested, an inheritance, that is to say, which has been 'delata' to a heres extraneus (i. e. voluntarius), but has not yet been acquired by him. An hereditas jacens consists of rights and liabilities. It may even acquire new rights and incur new liabilities. It may acquire new rights, for instance, by the separation of fruits, by the juristic acts of slaves, by the completion of a usucapio. It may incur new liabilities, for instance, by reason of the negotiorum gestio of another acting on behalf of the estate (supra, p. 427), or by reason of the delict of a slave belonging to the estate (supra, P. 440). As soon as the inheritance is entered upon and is thereby completely vested, the title of the heir dates back to the moment of the death of the deceased. This rule contains the answer to a question which, at first sight, seems to present great difficulty, the question namely as to who is the subject of the rights and liabilities belonging to an hereditas jacens. The view which is most generally accepted makes the hereditas jacens its own subject. It is said to be a juristic person, and is compared, in this respect, to a foundation (supra, p. 206). Another theory represents an hereditas jacens as not having any subject at all. The rights and liabilities which constitute an hereditas jacens are not, on this view, annexed to any person whatever. Neither of these theories seems satisfactory. According to the former, the heirship would devolve on the deceased's own estate, and this estate would therefore be the person succeeding in locum defuncti. The second view disregards the fact that every right or liability is, in its very essence, a legal relationship and, as such, necessarily demands a subject to which the legal relationship shall be attached; the fact (in other words) that the terms 'to be entitled,' or 'to be liable,' can have no meaning, unless they are predicated of a subject to which the right or liability appertains. The answer which the positive law of Rome gave to the question is contained in the rule concerning the retroactive effect of the vesting of the inheritance. The heir is the subject of the hereditas jacens, and the rule referred to means that the accept ance of the inheritance operates to constitute the heir retrospectively § 109. the subject of all the rights and liabilities of the deceased as from the moment of his death. The deceased is succeeded on his death directly and without break by his heir, even though the latter may not acquire the heirship till long afterwards. He is never succeeded by his own inheritance. There is no uncertainty, prior to the vesting of the inheritance, as to the existence of a subject of the inheritance. The heir is the subject at once, and if no one is willing to take the inheritance, the fiscus will enter upon the bona vacantia 'loco heredis.' The only uncertainty is as to who the subject is. In other words, we have here an instance of a legal relationship in a state of pendency: the legal relationship exists, and the subject exists, but it happens to be objectively impossible, at the present moment, to specify who this subject is. Hereditas jacens is the very type and model of a pendent legal relationship. It will perhaps be argued, however, that this theory is clearly contradicted by the Corpus juris. For does not Ulpian say: hereditas non heredis personam, sed defuncti sustinet? And we venture to think that to this very passage is attributable the fact that, hitherto, writers on this question have shrunk from seeking a solution of the difficulty on the lines just indicated. We maintain, however, that Ulpian's statement coincides with the position we have been endeavouring to establish. In so far namely as the heir is heir, he is, so to speak, not himself, but the deceased. Consequently, the heir quâ subject of the inheritance represents not himself, but the persona defuncti. And what is true of the heir is-prior to the vesting of the inheritance-predicated of the inheritance itself (the hereditas jacens), because the hereditas already contains potentially the heir, though he cannot, as yet, be named. The hereditas, like the heres, has the attribute of representing the deceased. The hereditas is the heir who, at some future date, will enter, and for that very reason it represents, not the personality of the heir himself-non heredis personam-but the personality of the deceased, because the heir quâ heir is the deceased. Thus the passage just cited gives unequivocal expression to the idea which lies at the very root of the Roman law of inheritance, the idea, namely, that an heir as such § 109. and consequently also an inheritance prior to its acceptance by the heir-represents the personality of the deceased regarded as a subject of proprietary rights and liabilities. The hereditas contains implicitly the heir who has not yet entered. Hence we find Pomponius stating, in so many words, that the hereditas 'personam heredis interim sustinet.' So far from being mutually contradictory, the two statements that the hereditas represents the persona heredis and also the persona defuncti are rather mutually identical. L. 24 D. de novat. (46, 2) (POMPONIUS): Morte promissoris non extinguitur stipulatio, sed transit ad heredem cujus personam interim hereditas sustinet. L. 34 D. de adq. rer. dom. (41, 1) (ULPIAN.): Hereditas enim non heredis personam, sed defuncti sustinet. L. 22 D. de usurp. (41, 3) (JAVOLEN.): Heres et hereditas, tametsi duas appellationes recipiunt, unius personae tamen vice funguntur. L. 54 D. de adq. her. (29, 2) (FLORENTIN.): Heres quandoque adeundo hereditatem jam tunc a morte successisse defuncto intellegitur. L. 22 D. de fidej. (46, 1) (FLORENTIN.): Mortuo reo promittendi et ante aditam hereditatem fidejussor accipi potest, quia hereditas personae vice fungitur, sicut municipium et decuria et societas. § 110. § 110. Hereditas and Bonorum Possessio. The law of inheritance, like other branches of the law, was dominated by the antithesis between the civil and the praetorian law. The law of inheritance according to the jus civile was called 'hereditas,' the law of inheritance according to the jus honorarium was called 'bonorum possessio.' In the law of inheritance, as in other departments of the legal system, the praetorian law became, in the course of its development, the instrument through which the jus gentium was enabled to enlarge the scope and rectify the application of the hard and fast rules of the civil law succession, and thus to pave the way for yet another victory of the principles of the jus gentium over those of the jus civile. The origin of the praetorian bonorum possessio is veiled in § 110. obscurity. According to one view, the development of bonorum possessio ought to be traced back to the old vindicatio by legis actio sacramento. Where each of two disputants claimed to be owner of one and the same thing, the magistrate would, with a view to arriving at a provisional settlement, cancel the status quo ante and regulate the possession anew (vindicias dare) in accordance with his judicial discretion (supra, p. 251). The party to whom the vindiciae were awarded, thereby obtained the 'rei possessio,' the 'possession of the thing,' pending the litigation. In cases where an hereditatis vindicatio was carried through in the form of a legis actio sacramento—and actions concerning inheritances continued, for a long time, to be brought in this form, because they fell within the jurisdiction of the centumviral court (supra, p. 263)-the necessary result of the 'vindicias dare' was that the praetor awarded to one party the bonorum possessio, i. e. the possession of the inheritance pending the litigation-presumably on the basis of a provisional enquiry into the substantial justice of the claims of the parties. The award of the bonorum possessio involved a provisional decision by the praetor of the question concerning the right of succession itself, and it may accordingly be assumed that, in many cases, the parties were content to drop all further proceedings, as soon as one of them had secured bonorum possessio from the praetor. This-it is suggested-is probably the manner in which the oldest form of bonorum possessio came into use, the bonorum possessio, namely, which was granted ' in aid of the civil law' (juris civilis adjuvandi gratia). When, in the further course of the development, the praetor began to adopt a more independent attitude as against the civil law, he added to this the oldest form of bonorum possessio a second form, a 'bonorum possessio juris civilis supplendi gratia' (the purpose of which was to supply the defects of the civil law scheme of succession), and finally proceeded to assert his absolute magisterial discretion by granting a bonorum possessio in direct opposition to the civil law, a 'bonorum possessio juris civilis corrigendi gratia.' According to another view the germ of bonorum possessio is to be |