CASE 198: TheLex Falcidia*
D. 35.2.1 pr. (Paulus libro singulari ad legem Falcidiam)
Lex Falcidia lata est, quae primo capite liberam legandi facultatem dedit usque ad dodrantem his verbis: “qui cives Romani sunt, qui eorum post hanc legem rogatam testamentum facere volet, ut eam pecuniam easque res quibusque dare legare volet, ius potestasque esto, ut hac lege [sequenti] licebit.” secundo capite modum legatorum constituit his verbis: “quicumque civis Romanus post hanc legem rogatam testamentum faciet, is quantam cuique civi Romano pecuniam iure publico dare legare volet, ius potestasque esto, dum ita detur legatum ne minus quam partem quartam hereditatis eo testamento heredes capiant, eis, quibus quid ita datum lega- tumve erit eam pecuniam sine fraude sua capere liceto isque heres, qui eam pecuniam dare iussus damnatus erit, eam pecuniam debeto dare, quam damnatus est.”
(Paul in his monograph on the lex Falcidia)
There was enacted the lex Falcidia, which in its first chapter granted freedom to make legacies up to three quarters (of one’s estate), using these words: “Let any Roman citizen who, after this statute becomes law, wishes to make a will have the right and power to give or legate his or her money to whomever he or she wishes, so far as it is permitted by this law.”
In the second chapter it sets a limit to legacies with the following words: “Let any Roman citizen who, after this statute becomes law, makes a will have the right and power to give and legate under our law as much money to any Roman citizen as he or she wishes, so long as what is given and bequeathed does not leave less than a quarter of the estate for the heirs to take under that will. Therefore, those to whom something is given and legated under these conditions will be permitted to take that money lawfully, and the heir in this case, who is obliged to make over the money, ought to give that money that he is obliged to give.”
1. Law on Legacies.
The lex Falcidia, passed in 40 B.C., superseded the provisions of earlier statutes that attempted to place limits on legacy giving. These statutes were defectively drafted and proved insufficient, but the lex Falcidia was much more enduring. All these laws sought to protect the interests of the heirs. Why might this have been considered desirable? What was the consequence if no one accepted an inheritance?2. The Falcidian Quarta. Much of the juristic discussion on this law centers on calculating the one-fourth portion (quarta) that was reserved for the heir or heirs. For example, the quarta was assessed on the basis of the estates value at the time of the testator’s death; and only assets counted; that is, debts were excluded, as were funeral expenses and the value of slaves freed under the will. (See Paul, Sent. 4.3.3; Gaius, D. 35.2.73.) Some types of legacies to close family members were, as we shall see, also exempted from inclusion in the calculation of the Falcidian quarta. Did these rules favor the heirs or the legatees? What would happen, for instance, if the decedents debts exceeded one quarter of the estate?
3. Sanctions. If legacies did not leave heirs with their Falcidian quarta, the will was not rendered invalid; all that happened was that either the legacies were reduced proportionately (Paul, Sent. 3.8.1) or the legatee was required to refund the excess (Gaius, D. 35.2.80.1). Testators were not permitted to circumvent the statute (Scaevola, D. 35.2.27), but they could place the burden of it on some legatees more than others (Africanus, D. 35.2.88.2).
4. Why Did the Problem Arise? Of course, since in writing their wills testators could seldom be even approximately certain what their estates would be worth at their death, some may have inadvertently legated too much. Still, legal sources suggest that many testators deliberately piled on the legacies, thereby diminishing the value of the inheritance for the named heirs.
As you read the Cases that follow, consider what their motives might have been.5. The Problem of Form, Revisited. The law of legacies was highly complicated, mainly because there were four different forms of legacy, each of which had a particular wording and could be used only with specific effects and subject to specific rules; see, for a reasonably detailed description, Gaius, Inst. 2.192-223. Is it reasonable to assume that, just as formal requirements operate to favor intestate heirs over the heirs in the will, so legacy rules favor heirs over legatees? Does the lex Falcidia tend to support this assumption?
D. 33.4.1 pr., 2 (Ulpianus libro nono decimo ad Sabinum)
(pr.) Cum dos relegatur, verum est id dotis legato inesse, quod actione de dote inerat.... (2) Et verum est commodum in dote relegata esse repraesentationis, quamvis annua die dos praestaretur.
(Ulpian in the nineteenth book on Sabinus)
(pr.) When a dowry is returned by legacy, the correct rule is that what is obtained through an action on dowry (actio de dote) is (also) obtained through legacy of a dowry
(2) And the correct rule is that the advantage in restoring a dowry through a legacy consists in immediate payment, while a dowry would be paid in annual installments.
1. Return of the Dowry. While a marriage lasted, the dowry remained in the husbands ownership, but if he predeceased his wife, the dowry usually had to be returned to her. A wife could reclaim what she was owed through a suit called the actio rei uxoriae (see Chapter II.D.2).
The legacy allowed the husband to return the dowry in his will. Why was this preferable to recovery through the actio rei uxoriae?2. The Falcidian Quarta. Does the fact that the dowry is actionable suggest that it should be treated as a debt and excluded from the calculation of the Falcidian quarta? Note that Ulpian in this text speaks of “restoring” the dowry. Gaius (D. 35.2.81.1) observes that legacy of a dowry falls outside the calculation “because the wife is held to recover her own property.” Does it make sense to speak of a legacy when the estate already is under an obligation to return the dowry?
3. Immediate Payment. The standard schedule for repayment of a cash dowry was three annual installments (Tit. Ulp. 6.8). As this Case points out, legacy of a dowry bypassed that schedule by requiring one immediate payment. Why might the testator have desired this, despite the difficulties it could cause the heir in raising cash?
4. Bonorum Possessio. The successful claimant to bonorum possessio against the terms of a will was obliged by the praetor to pay legacies to close family members of the decedent, including the legacy of return of a dowry; see Ulpian, D. 37.5.1 pr.