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Bona Fides

actions, fidei, fide, actiones, acts and ex

BONA FIDES and BONA FIDE is an expression often used in the conversa tion of common life. It is also often in the mouths of lawyers, and it occurs in Acts of Parliament, where (in some cases at least) it means that the acts referred to must not be done to evade the law, or in fraud of the law, as we sometimes express it, following the Roman phraseology (in fraudem legis). It appears to be used pursuant to the meaning of the words, in the sense of good faith, which implies the absence of all fraud or deceit. Bona Fides is therefore opposed to fraud, and is a necessary ingredient in contracts, and in many acts which do not belong to con tracts. How much fraud may be legally used, or what is the meaning of Bona Fides in any particular case, will depend on the facts. Many things are not legal frauds, and many things are legally done Boni Fide, which the common notions of fitir dealing condemn.

The phrase Bona Fides originated with the Romans, and it is opposed to Mala Fides, or Dolus (fraud). The notion of equity (tequitas), equality, fair dealing, equal dealing, is another form of express ing Bona Fides. He who possessed the property of another bon& fide, might, so far as the general rides of law permitted, acquire the ownership of such property by use (usucapio). In this case bona fides consisted in believing that his pos session originated in a good title, or, as Gains (ii. 43) expresses it, when the pos sessor believed that he who transferred the thing to him was the owner.

The Romans classed under the head of bona fidei obligations a great variety of contracts, and also of legal acts, as buying, selling, mandatum [AGENT], guardian ship, &c. Actions founded on these obliga tions were called " bona fidei actiones," and the legal proceedings were called "bon fidei judicia." The name arose from the formula " ex bona fide," which was in serted in the Intentio, or that part of the Pnetor's formula (instruction to the judex) which had reference to the plaintiffs claim, and empowered the judex to decide Recording to the equity of the case, ex fide bona. Sometimes the expression

" aquus melius " was used instead of ex fide bona. Thus actions founded on con tract, or on acts which bore an analogy to contract, were distributed into the two classes of Coudictiones, or stricti judicii, or stricti juris actiones, and bona fidei actiones, or actions in which the inquiry was about the strict legal rights of the parties and actions in which the general principles of fair dealing were to be taken into the account. The object which was attained by the bones fidei judicia nears an analogy to the relief which may be some times obtained in a Court of Equity in England, when there is none iu it Court of Law.

The Intentio in the class of actions called Condictiones was in this form : quidquid (ob eam rem) Numerium Ne gidium Aulo Egerio dare facere oportet ex fide bona—whatever Numerius Negi dius ought pursuant to good faith to give or do to Aulus Egerius (Gains, ii. 47). All the actions in which this formula is used actions arising out of contracts or quasi contracts; and not actions founded on delict, nor actions in which the owner ship of a thing was in question. By leaving out the expression " ex bona fide in the Intentio just quoted, the action is reduced to an action stricti juris. The bones fidei actio, by virtue of the for mula (quidquid, &c.), referred to a thing not determined : the stricti pHs actio might refer to a thing determined, as a particular field or slave, which was the subject of a contract, or to a thing undetermined (quidquid). There fore all indeterminate actions (incertie actiones) were not bona fidei actiones, but all bones fidei actiones were incente actiones.