Emptio Bonorum. Addictio. 191 praeterit non satis in ea re legis latorem voluntatem suam verbis expressisse. 77. Videamus autem et de ea successione quae nobis ex emptione bonorum competit. (78.) Bona autem veneunt aut vivorum aut mortuorum. vivorum, velut eorum qui fraudationis causa latitant, nec absentes defenduntur; item eorum qui ex lege Iulia bonis cedunt; item iudicatorum post tem on this point the author of the law has not clearly expressed his intention in words. 77. Now let us consider that succession which belongs to us through the purchase of a man's goods (emptio bonorum). 78. The goods which are sold may belong either to living or dead persons living persons, for instance, when men conceal themselves with a fraudulent intent, or are not defended in their absence; likewise, when men make a cessio bonorum` according to the Lex Julia; likewise, the goods of judgment 1 See Mackeldey, p. 456, § 2. Cessio bonorum was a voluntary delivery of his goods by an insolvent, which saved him from the personal penalties of the old law. These penalties were as follows: (1) On failure to meet an engagement entered into by nexum (i. e. by provisional mancipation which a man made of himself and his estate as security against non-payment) the creditor claimed the person and property of the debtor, and these were at once assigned (addicebantur) to him: (2) On failure to meet engagements made in any other way, a judgment had first to be obtained and then, if after thirty days' delay payment were not made, the addictio followed, as in the first case. An addictus was at once carried off and imprisoned by his creditor, but a space of 60 days was still allowed during which he might be redeemed by payment of the debt by any friend who chose to come forward; and to afford facilities for such redemption a proclamation of the amount and circumstances of the debt was made three times, on the nundinae, within the 60 days. If no payment were made within this time, the addictio became final; the debtor's civitas was lost, and the creditors might even kill him or sell him beyond the Tiber. If there were several creditors, the law of the Twelve Tables, quoted by A. Gellius was applicable: "Tertiis nundinis partes secanto; si plus minusve secuerunt se (i. e. sine) fraude esto." A. Gell. xx. 1. 49. Savigny holds that addictio was originally a remedy only applicable when there was a failure to repay money lent (certa pecunia credita); and that the patricians to increase their power over their debtors invented the transaction called nexum, whereby all obligations could be turned into the form of an acknowledgment of money lent, and whereby also the interest could be made a subject of addictio as well as the principal: for under the old law the remedy against the debtor's person was only in respect of the principal. Niebuhr is of opinion that addictio of the debtor's person was done away with by the Lex Poetilia A.U.C. 424; see Hist. of Rome, III. 154, Smith's edition, 1851. pus, quod eis partim lege XII tabularum, partim edicto Praetoris ad expediendam pecuniam tribuitur. mortuorum bona veneunt velut eorum, quibus certum est neque heredes neque bonorum possessores neque ullum alium iustum successorem existere. (79.) Si quidem vivi bona veneant, iubet ea Praetor per dies continuos xxx possideri et proscribi; si vero mortui, post dies xv postea iubet convenire creditores, et ex eo numero magistrum creari, id est eum per quem bona veneant. itaque si vivi bona veneant, in diebus pluribus veniri iubet, si mortui, in diebus paucioribus; nam vivi bona xxx, mortui vero xx emptori addici iubet. quare autem tardius viventium bonorum venditio compleri iubetur, illa ratio est, quia de vivis curandum erat, ne facile bonorum venditiones paterentur. debtors, after the expiration of the time which is granted them, in some cases by a law of the Twelve Tables', in others by the Praetor's edict, for the purpose of raising the money. The goods of dead persons are also sold; for example, those of men to whom it is certain that there will be neither heirs, bonorum possessores, nor any other lawful successor. 79. If then the goods of a living person be sold, the Praetor orders them to be taken possession of (by the creditors) for thirty successive days, and to be advertized for sale: but if those of a dead person, he orders that after fifteen days the creditors shall meet, and out of their number a magister be appointed, i. e. one by whom the goods are to be sold. Also, if the goods sold be those of a living person, he orders them to be sold (for delivery) after a longer period, if those of a dead person (for delivery) after a shorter period; for he commands that the goods of a living person shall be assigned over to the purchaser after thirty days, but those of a dead person after twenty3. And the reason why the sale of the goods of living persons is ordered to become binding after a longer interval is this, that care ought to be taken when living persons are concerned, that they have not to submit to sales of their goods without good reason. 1 IV. 2 I, see XII. Tab., Tab. 111. 1. 3. 2 III. 32. 3 The number of the days in this passage is given according to Gneist's text, but it is as well to know that the reading is disputed by Hollweg, Lachmann and Huschke, as Gneist himself states in a note. 80. Neque autem bonorum possessorum neque bonorum emptorum res pleno iure fiunt, sed in bonis efficiuntur; ex iure Quiritium autem ita demum adquiruntur, si usuceperunt. interdum quidem bonorum emptorum idem plane ius quod est mancipum esse intelligitur, si per eos scilicet bonorum emptoribus addicitur qui publice sub hasta vendunt [deest 1 lin.]. (81.) Item quae debita sunt ei cuius fuerunt bona, aut ipse debuit, neque bonorum possessores neque bonorum emptores ipso iure debent aut ipsis debentur: sed de omnibus rebus utilibus actionibus et conveniuntur et experiuntur, quas inferius proponemus. 82. Sunt autem etiam alterius generis successiones, quae neque lege XII tabularum neque Praetoris edicto, sed eo 80. Now the property does not vest in full title either in the possessors of goods' or the purchasers of goods, but it is merely theirs in bonis, and is acquired ex jure Quiritium only upon completion of usucapion. Sometimes, indeed, the title of bonorum emptores is regarded as being nearly equivalent to that of mancipes; if, that is to say, the assignment to the purchasers of the goods be made by those who sell publicly, sub hasta (i.e. by auction). 81. Likewise, debts owing to him to whom the goods belonged, or debts which he owed, are not by the letter of the law due either to the possessors of goods or the purchasers of goods, or due from them but on all matters such persons are sued and sue by actiones utiles*, of which we shall give an account hereafter. 82. There are besides successions of another kind, which have been introduced into practice neither by any law of the Twelve Tables, nor by the Praetor's edict, but by those 194 Liability of the adopter for the adopted. iure quod consensu receptum est introductae sunt. (83.) Ecce enim cum paterfamilias se in adoptionem dedit, mulierve in manum convenit, omnes eius res incorporales et corporales quaeque ei debitae sunt, patri adoptivo coemptionatorive adquiruntur, exceptis iis quae per capitis diminutionem pereunt, quales sunt ususfructus, operarum obligatio libertorum quae per iusiurandum contracta est, et quae continentur legitimo iudicio. 84. Sed ex diverso quod debet is qui se in adoptionem dedit, vel quae in manum convenit, ad ipsum quidem coemptionatorem aut ad patrem adoptivum pertinet hereditarium aes alienum, proque eo, quia suo nomine ipse pater adoptivus aut coemptionator heres fit, directo tenetur iure, non vero is qui se adoptandum dedit, quaeve in manum convenit, quia desinit iure civili heres esse. de eo vero quod prius suo nomine eae personae debuerint, licet neque pater adoptivus teneatur neque coemptionator, neque ipse quidem qui se in adoptionem dedit vel quae in manum rules which are received by general consent. 83. To take an instance, when a person sui juris has given himself in adoption, or a woman has made conventio in manum', all their property, incorporeal and corporeal, and all that is due to them, is acquired by the adopting father or coemptionator, except those things which perish by a capitis diminutio, of which kind are usufruct, a claim to the services of freedmen contracted by oath, and matters secured by a statutable action3. 84. But, on the other hand, a debt owing by him who has given himself in adoption, or by a woman who has made conventio in manum, attaches upon the coemptionator or the adopting father himself, if it be an inheritable debt, and he is liable for it by direct proceedings, since such adopting father or coemptionator becomes heir personally (suo nomine); and he is not directly liable who has given himself to be adopted, nor is the woman who has made conventio in manum, because they cease to be heirs at the civil law. But with regard to a debt which such persons previously owed on their own account, although neither the adopting father nor the coemptionator is liable, nor does the man himself who gave himself to be adopted, nor the woman who made the conventio remain 1 1. 108 et seqq. 2 See note on I. 26. 3 III. 181. Cessio in jure hereditatis. 195 convenit, maneat obligatus obligatave, quia scilicet per capitis diminutionem liberetur, tamen in eum eamve utilis actio datur rescissa capitis diminutione: et si adversus hanc actionem non defendantur, quae bona eorum futura fuissent, si se alieno iuri non subiecissent, universa vendere creditoribus Praetor permittit. 85. Item si is ad quem ab intestato legitimo iure pertinet hereditas eam hereditatem, antequam cernat aut pro herede gerat, alii in iure cedat, pleno iure heres fit is cui eam cesserit, perinde ac si ipse per legem ad hereditatem vocaretur. quodsi posteaquam heres extiterit, cesserit, adhuc heres manet et ob id creditoribus ipse tenebitur: sed res corporales transferet proinde ac si singulas in iure cessisset; debita vero pereunt, eoque modo debitores hereditarii lucrum faciunt. (86.) Idem iuris est, si testamento scriptus heres, posteaquam heres extiterit, in iure cesserit hereditatem. ante aditam vero hereditatem cedendo nihil agit. (87.) Suus autem et necessarius heres an aliquid bound, being freed by the capitis diminutio, yet an utilis actio is granted against them, the capitis diminutio being treated as non-existent and if they be not defended' against this action, the Praetor permits the creditors to sell all the goods which would have been theirs if they had not rendered themselves subject to another's authority". 85. Likewise, if a man to whom an intestate inheritance belongs by statute law, make cessio in jure of it to another before exercising his cretion or acting as heir, he to whom the cession is made becomes heir in full title, just as if he had himself been called to the inheritance by law. But if he make the cession after he has taken up the inheritance, he still remains heir, and will therefore be liable personally to the creditors: but he will convey the corporeal property just as if he had made cession of each article separately: the debts, however, perish, and thus the debtors to the inheritance are profited. 86. The rule is the same if the heir appointed in a testament make cession after taking up the inheritance; although by making cession previously to entering on the inheritance he effects nothing. 87. Whether a suus heres 1 Sc. by the coemptionator or adopting father. 2 IV. 38, 80. 3 II. 24. 4 II. 164. 5 II. 35. 6 11. 36. |