EL RECURSO A LA FICTIO EX AEQUITATE COMO FUNDAMENTO DE LA BONORUM POSSESSIO CONTRA TABULAS Y DE SU ENTORNO PROCESAL

It is well known that the praetor granted possession of inherited property to children who had been pretermitted from their father's will because they had been emancipated against the testator's wishes, through the succession known as bonorum possessio contra tabulas. To this end, the magistrate acted on the assumption that the emancipated child had not left the paternal potestas (fictio suitatis). In this context, and assuming that the bonorum possessor had to take legal action to defend his inheritance rights, the praetor granted him standing to sue by means of a formulae ficticiae, this time resorting to the assumption that he was an heir (fictio si heres esset). Both fictions were based on the criterion of aequitas to which the praetor often had recourse to counterbalance the rigid rules of ius civile and thus restore the patrimonial balance in favor of those who suffered harm by not obtaining the inheritance that would have corresponded to them by virtue of their ties of cognation with the deceased. Therefore, we see the dualism/antagonism between ius strictum and ius honorarium. In this regard, the present article aims to analyze the ratio iuris underlying the use of fictio iuris to grant both bonorum possessio contra tabulas and procedural standing.