CHAPTER VII. HEREDITAS IACENS

We have now discussed the only three classes of juristic Person known to the classical private law. Before we go on to the new class which arose in fifth-century Con­stantinople, we must turn aside to look at the anomalous entity to which the Roman lawyers professed to assimilate the corporate city and the corporate college.¹ We saw in the first chapter that a hereditas iacens is not said to be, only to resemble, a -persona; but as persona does not mean ‘Person’, that leaves open the question whether a hereditas was thought capable of rights and duties.

Such a view is most obviously suggested by texts which say that the hereditas is or resembles an owner, ‘ dominus habebitur'ft ‘ dominae locum optinet'f> and the like. We also

¹               See pp. 19, 20, supra.

¹ For a discussion of the whole subject, see Buckland, Text-Book, 2nd ed. pp. 306—10.

³               Cf. Windscheid, Lehrbuch des Pandektenrechts, vol. 1, 8th ed. 1900, pp. 187, 223.

⁴               D.

⁵               lang=EN-US>D. 43. 24. 13. 5 (interp.); so domini loco habetur, D. n. 1. 15. pr. (Pomponius. The argument here is not quite obvious, though sound. One who falsely admits noxal liability on a theft by serous alienus is held liable only if there is in fact someone against whom the action would lie (h. t. 13. pr.). While a hereditas is delata there is no such person in respect of a serous hereditarius. Nevertheless an outsider admitting liability is bound by his admission because ‘'domini loco habetur hereditas")·,pro domino habetur, ut domino adjuiritur, 41. 1. 61. pr. (Hermogenian; on this text see p. 8, supra)·, cum hereditaspersonam dominae sustineat, C. 4. 34. 9 (a.d. 293). hear of acquisition for a hereditas—'hereditati quoque ut domino per servum hereditarium adquiritur' ;^T a negotiorum gestor 'quodammodo sibi hereditatem seque ei obligat'·? an insult to a dead man’s funeral or corpse before his heir enters, or to a servus hereditarius, is an iniuria against the hereditas, and ‘adquiri hereditati actiones dubium non esse'3 All this looks as if the hereditas was a Person, but there are strong arguments against so holding.

In the first place, some of the most striking texts turn out on investigation to contradict themselves. D. 9.2.13.2 (Ulpian) runs: 'Si servus hereditarius occidatur, quaeritur, quis Aquilia agat, cum dominus nullus sit huius servi, et ait Celsus legem domino damna salva esse voluisse: dominus ergo hereditas habebitur, quare adita hereditate heres poterit experiri' No doubt ‘cum dominus nullus sit' gives Ulpian’s view, and 'dominus ergo hereditas habebitur' was clumsily inserted by a glossator or by the compilers; but if the compilers had seriously and of set purpose meant to call the hereditas 'dominus', they could not have allowed Ulpian’s statement to stand.

Again, language that suggests personification does not necessarily imply it. It is possible to acquire rei, to add to a thing, & peculium for instance, as well as to a Person; and the whole conception of praedial servitudes, iura praediorum, rests on the fact that a right can belong, be attached, to a praedium which is certainly not a Person.⁴ Whether the hereditas was at any given time thought of as a collection of corporeal things, or as a complex of things

¹ D. 41. 1. 61. pr. ² D. 3.5. 20. 1.                          ³ D. 47. 10. 1. 6.

⁴ Cf. Schnorr von Carolsfeld, p. 57.

164 corporeal and incorporeal, or as an ideal unit,¹ it could certainly be increased or diminished, benefited or bur­dened, by acts done while it lay waiting for the heir. This does not involve any kind of personification. Nor does it explain how such words as dominus and persona came to be used in connection with the hereditas.

The solution of this problem seems to turn on two points already mentioned in talking of the word persona. The first is the nature of the problem with which the hereditas iacens confronted the lawyers. It was common for a large estate to be delata, nullius in bonis, for several months, during which many acts of administration would have to be done by somebody. Ordinarily, they would be done by servi hereditarii.

In this quandary the Romans failed to create a consistent theory to cover all cases, showing themselves, as often, more akin to English than to French or German lawyers. Usually they held that the hereditas represented the deceased ;3 he had still enough existence to cover with his authority the acts of servi hereditarii. Sometimes they

¹               Cf. Buckland, Text-Book, 2nd ed. p. 307. Seneca, De Benejiciis, 6. 5. 3 shows that Gaius’ distinction between hereditas and res hereditariae (G. 2. 54) was well known in the first century of our era.

²               On the still more urgent problem of protecting the estate against marauders, see Buckland, Text-Book, 2nd ed. p. 306.

³For references, see Buckland, Text-Book, 2nd ed. p. 308, nn. 5, 6.

admitted, on grounds of convenience, that entry was retrospective;¹ the heres, who alone could in any case sue or be sued on transactions that took place while the hereditas was delata, was thus feigned to have been dominus all the time.

The Corpus luris goes further than this, but most of the texts are ambiguous. There was no doubt a tendency to more definite personification, and our interpretation of

l66 PERSONALITY IN ROMAN PRIVATE LAW

a text must depend on its date. When Pomponius says¹ 'morte promissoris non extinguitur stipulatio, sed transit ad heredem, cuius personam interim hereditas sustinet', or Ulpian² 'hereditas enim non heredis personam, sed defuncti, sustinet', there is hardly any suggestion that the hereditas is per­sonified.

Tribonian, and perhaps Florentinus, see a resemblance between the legal position of a hereditas and that of a human being, and Tribonian at least can say that a hereditas resembles, or even is, an owner of property.⁸ But the personification is not worked out or consistent. The texts which definitely call the hereditas 'dominus' do so as a slovenly afterthought,9 and it seems that even the compilers did not really regard the hereditas iacens as

¹ D. 46. 2. 24.                            ² D. 41. i. 34.

³               Buckland, ‘Marcian’, Studi Riccobono, vol. 1, 1932, p. 276. Krüger, Geschichte der Quellen und Litteratur des römischen Rechts, 2nd ed. 1912, p. 215, makes him contemporary with Papinian. If this is correct, the passages quoted are probably interpolated; but the appearance of a late or post-classical turn of phrase in a jurist who may be late is some evidence both that the jurist is late and that he wrote the text as we have it. For this argument compare the article on Marcian cited above.

⁴  D. 30. 116. 3.                                           ⁵ D. 46. i. 22.

⁶  Inst. 3. 17. pr.                                          ⁷ Inst. 2. 14. 2.

⁸ See p. 162, nn. 4, 5, supra.                       ⁹ See p. 163, supra.

a Person. There were many things a servus hereditarius could not do precisely because he had no master, such as stipulating for a usufruct or entering on an inheritance;¹ and on the other hand he could be tortured in litigation affecting the hereditas without being considered 'in caput domini torqueri' ? Moreover, we are expressly told several times that res hereditariae 'nullius in bonis sunt'i> and the like.^{[170] [171]} And even Tribonian, discussing in the Institutes the stipulations of slaves, derives the ius stipulandi of servus hereditarius from the dead man, as an exception to the rule ‘servus ex persona domini ius stipulandi habet'.5

It appears, then, that no Roman or Byzantine lawyer ever conceived the hereditas as a ‘rechtsfähiger Vermögens­inbegriff’, a soulless and mindless Person. For the sake of convenience they sometimes compared it with domini and other corporeal persons; but they always shy away when awkward consequences look like following; and it remains true to the end that a hereditas iacens is no more a Person than it is a persona.