Notes on the Bonae Fidei Possessio Pro Herede in the Civil Law Systems (19th–20th Centuries)

Abstract

This paper provides a survey of the legal status of the possessor pro herede in some mainland European countries in the late 19th century (France, Austria, Italy, Germany). The case of the so-called ‘apparent heir’ who is not the true heir and administrates the estate assets or alienates the inheritance goods to third parties was already known by Roman law. In fact, under certain circumstances, it protected both the apparent heir behaving in good faith and the bona fide holder, who acquired real rights to inheritance goods from an individual who appeared to be the true heir towards everyone. With regards to the alienations of rights made by the apparent heir, things did not change substantially in continental Europe throughout the Middle Ages. Even during the early modern period, the legacy of Roman law was clear in the discipline of this matter. It was only at the beginning of the late modern period, as a result of the transition from the law system of the Ancien Regime to modern codifications, that the position of the apparent heir began to be considered in a new way. In mainland Europe the drafting of the civil codes enabled legislators, doctrine and jurisprudence to reconsider how law could satisfy the needs of rapidly changing societies. In that regard, new provisions and jurisprudential principles were established to secure and guarantee the rights of the true heir and third parties towards the legal acts carried out by the apparent heir.