Fideicommissum
Encyclopedia
The fideicommissum was one of the most popular legal institutions in Roman Law
for several centuries. It translates from the Latin word fides
(trust) and committere (to commit), meaning that something is committed to one's trust.
, who for the first time sets up certain requirements for the institution
of the fideicommissum. The institution itself was first mentioned in 200 BC (Terence
, Andria
290–98: tuae mando fide).
A appoints B as a heir acting as a fiduciarius entrusted with passing the inheritance
on to C, the so called fideicommisarius.
to the proscripti, and the transfer would be carried out between them.
Inst. 2.23.1 shows it was Augustus who made the fideicommissum legally binding by favouring it in individual cases. Thus its acceptance was directly based on Emperor’s Acts, but even previous to this the fideicommissum never lacked enforceability. The true reason for it lays in the nature of the institution itself. Personal security in Rome was far more important than it is today, mostly because the Romans attached more weight to the duties of a friendship. Therefore certain legal institutions were simply based on bona fides (e.g. the tutela, societas, depositum), which did not decrease but rather enforce their security. Breach of a fiduciary agreement lead inevitably to being infamis
, which meant the lifetime incapability of taking part in any commercial actions. This threat was force enough, and ensured the fiduciaries would not fail. As a matter of honores, consideration
was not required.
, it may have by his reign existed up to 700 years). The reasons lie in the great variety of cases it could deal with and the lack of formal requirements which had to be met.
The practical informality and flexibility of fideicommissum is described in Inst. 2.23.2. There was no need for a certain formula, any word describing the beneficiaries, such as rogo, peto, or volo, employed with the term "fidei tuae committo" sufficiently instituted a fideicommissum. It could be constituted in a will or in a codicil
, made orally or even declared by mere gestures. Most attractive of all, it could be added or revoked or varied after the institutio heredes itself. Taking all these advantages in account, it is not surprising that the legatus, with its strict formal requirements, was far less popular. In later eras, a gradual assimilation of legates and fideicommissa took place; under Justinian, the two institutions were fused, in an example of the vulgarisation of Roman Law after its classic era.
in 169 BC for example did not allow women to be appointed as an heir of Romans listed as wealthy by the censor. Later, Augustus enforced his leges Julia by introducing harsh leges caducariae, which punished the unmarried and the childless by denying their capacitas, the privilege of inheriting (the lex Julia de maritandis ordinibus was passed in 18 BC and the lex Papia Poppeia in 9 AD (Inst. 1.145)). The fideicommissum but enabled a prosperous pater familias to appoint his amicus as an heir, who would then be trusted with transferring the inherited property to the unmarried filia. This would ensure her being provided for after his death.
, and usufructus, which required a determinate person, the fideicommissum could be granted to incertae personae. Using a fideicommissary substitution (making one fideicommissum subject to another, enabling the preservation of property within a family for generations through successive trusts) the grantor could therefore direct his filius to transfer the estate on to his son at death and so on in perpetuity.
of the slave so freed.
Freeing slaves was attractive for the dominus
for several reasons. Firstly, he could get rid of slaves who were of no use to him (because they were thugs, uneducated or incapable of working). Secondly, a freed slave owed the dominus who freed him honor et sequi, including the procession to the grave. This led to a great number of slaves being freed on the death bed. Rome was gradually crowding with freed slaves, enlarging the poor classes within society. Therefore Augustus passed laws against luxury. They restricted liberation of slaves, but could be partly evaded by the fideicommissum. The fideicommissum also gave way to granting the rights of a patronus to the person who was committed to freeing the slave.
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
for several centuries. It translates from the Latin word fides
Fides
In Roman religion, Fides was the goddess of trust.Her temple on the Capitol was where the Roman Senate signed and kept state treaties with foreign countries, and where Fides protected them....
(trust) and committere (to commit), meaning that something is committed to one's trust.
Text and translation
- Inprimis igitur sciendum est opus esse, ut aliquis heres recto iure instituatur eiusque fidei committatur, ut eam hereditatem alii restituat; alioquin inutile est testamentum in quo nemo recto iure heres instituitur.
- First of all we know that it is required, that the one heir is duly appointed and it is committed to his trust to transfer the inheritance to another; otherwise the testament in which no heir has duly been appointed is void.
-
- —Institutes 2.23.1
- Verba autem [utilia] fideicommissorum haec [recte] maxime in usu esse uidentur peto, rogo, volo, fidei committo; quae proinde firma singula sunt, atque si omnia in unum congesta sint.
- The words which are properly and commonly used to install a fideicommissum are "I beg, I ask, I wish, I entrust; these [words] are therefore sufficient individually, but also if all combined.
-
- —Institutes 2.23.2
Exegesis
This fragment dates back to the time of AugustusAugustus
Augustus ;23 September 63 BC – 19 August AD 14) is considered the first emperor of the Roman Empire, which he ruled alone from 27 BC until his death in 14 AD.The dates of his rule are contemporary dates; Augustus lived under two calendars, the Roman Republican until 45 BC, and the Julian...
, who for the first time sets up certain requirements for the institution
Institution
An institution is any structure or mechanism of social order and cooperation governing the behavior of a set of individuals within a given human community...
of the fideicommissum. The institution itself was first mentioned in 200 BC (Terence
Terence
Publius Terentius Afer , better known in English as Terence, was a playwright of the Roman Republic, of North African descent. His comedies were performed for the first time around 170–160 BC. Terentius Lucanus, a Roman senator, brought Terence to Rome as a slave, educated him and later on,...
, Andria
Andria (comedy)
Andria is a comedy by Terence, a Roman playwright. It was Terence's first play, and he wrote it when he was approximately 19 years old. Terence adapted through translation from Menander's play, although as he is at pains to point out in his prologue he goes beyond mere translation. It was first...
290–98: tuae mando fide).
A appoints B as a heir acting as a fiduciarius entrusted with passing the inheritance
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
on to C, the so called fideicommisarius.
Purpose and enforceability
The fideicommissum made possible that the heres could be left with the grantors desire to hand over the estateEstate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
to the proscripti, and the transfer would be carried out between them.
Inst. 2.23.1 shows it was Augustus who made the fideicommissum legally binding by favouring it in individual cases. Thus its acceptance was directly based on Emperor’s Acts, but even previous to this the fideicommissum never lacked enforceability. The true reason for it lays in the nature of the institution itself. Personal security in Rome was far more important than it is today, mostly because the Romans attached more weight to the duties of a friendship. Therefore certain legal institutions were simply based on bona fides (e.g. the tutela, societas, depositum), which did not decrease but rather enforce their security. Breach of a fiduciary agreement lead inevitably to being infamis
Infamia
In ancient Roman culture, infamia was a loss of legal or social standing. As a technical term of Roman law, infamia was an official exclusion from the legal protections enjoyed by a Roman citizen, as imposed by a censor or praetor...
, which meant the lifetime incapability of taking part in any commercial actions. This threat was force enough, and ensured the fiduciaries would not fail. As a matter of honores, consideration
Consideration
Consideration is the central concept in the common law of contracts and is required, in most cases, for a contract to be enforceable. Consideration is the price one pays for another's promise. It can take a number of forms: money, property, a promise, the doing of an act, or even refraining from...
was not required.
Applicability
The great success of the fideicommissum as a clever fraus legi fracta is proved by reference to its long usage (redefined by Justinian IJustinian I
Justinian I ; , ; 483– 13 or 14 November 565), commonly known as Justinian the Great, was Byzantine Emperor from 527 to 565. During his reign, Justinian sought to revive the Empire's greatness and reconquer the lost western half of the classical Roman Empire.One of the most important figures of...
, it may have by his reign existed up to 700 years). The reasons lie in the great variety of cases it could deal with and the lack of formal requirements which had to be met.
The practical informality and flexibility of fideicommissum is described in Inst. 2.23.2. There was no need for a certain formula, any word describing the beneficiaries, such as rogo, peto, or volo, employed with the term "fidei tuae committo" sufficiently instituted a fideicommissum. It could be constituted in a will or in a codicil
Codicil (will)
A codicil is a document that amends, rather than replaces, a previously executed will. Amendments made by a codicil may add or revoke small provisions , or may completely change the majority, or all, of the gifts under the will...
, made orally or even declared by mere gestures. Most attractive of all, it could be added or revoked or varied after the institutio heredes itself. Taking all these advantages in account, it is not surprising that the legatus, with its strict formal requirements, was far less popular. In later eras, a gradual assimilation of legates and fideicommissa took place; under Justinian, the two institutions were fused, in an example of the vulgarisation of Roman Law after its classic era.
Restricted capacitas
Most important, the fideicommissum enabled transferring property by will to those excluded from inheriting. The lex VoconiaLex Voconia
Lex Voconia was a law established in ancient Rome in 169 BC.Introduced by Q. Voconius Saxa with support from Cato the Elder, Voconius being tribune of the people in that year, this law prohibited those who owned property valued at 100,000 asses from making a woman their heir...
in 169 BC for example did not allow women to be appointed as an heir of Romans listed as wealthy by the censor. Later, Augustus enforced his leges Julia by introducing harsh leges caducariae, which punished the unmarried and the childless by denying their capacitas, the privilege of inheriting (the lex Julia de maritandis ordinibus was passed in 18 BC and the lex Papia Poppeia in 9 AD (Inst. 1.145)). The fideicommissum but enabled a prosperous pater familias to appoint his amicus as an heir, who would then be trusted with transferring the inherited property to the unmarried filia. This would ensure her being provided for after his death.
Settlements
Holding property within a family was of great importance for several reasons. Practically, it ensured the survival of the familia, its name and wealth. Furthermore it was demanded by the sacral necessity of worshipping the penates, who would cease to exist if the family did. Most important though, the Roman aristocracy relied on a careful and necessary balance of property, to ensure a balance of power. This could be guaranteed by installing a fideicommissum. It was able to regulate the succession of several generations by will and hence incorporates the Roman root of family settlements. Unlike legates, which only allowed passing estate on to a heresHeres
Heres is one of thirteen parishes in the Gozón municipality, within the province and autonomous community of Asturias, in northern Spain....
, and usufructus, which required a determinate person, the fideicommissum could be granted to incertae personae. Using a fideicommissary substitution (making one fideicommissum subject to another, enabling the preservation of property within a family for generations through successive trusts) the grantor could therefore direct his filius to transfer the estate on to his son at death and so on in perpetuity.
Legacies
Legates are by nature very similar to the fideicommissum, but the latter did not suffer from the same restrictions. Legates could only be charged on a heres, and the lex Falcidia in 41 BC constrained the legacy to three quarters of the entire inheritance. This of course did not apply for the fideicommissum and with such could be evaded.Freeing slaves
Another existing use of the fideicommissum is described in G 2.263-266: libertas quoque servo per fideicommissum dari potest if the heres or legatarius is requested to perform the manumissio to become the patronusPatronage in ancient Rome
Patronage was the distinctive relationship in ancient Roman society between the patronus and his client . The relationship was hierarchical, but obligations were mutual. The patronus was the protector, sponsor, and benefactor of the client...
of the slave so freed.
Freeing slaves was attractive for the dominus
Dominus
Dominus may refer to:* Christus Dominus, the Second Vatican Council's "Decree on the Pastoral Office of Bishops".* Dominus Flevit Church, on the Mount of Olives in Jerusalem* Dominus , a title of sovereignty, clergy and other uses...
for several reasons. Firstly, he could get rid of slaves who were of no use to him (because they were thugs, uneducated or incapable of working). Secondly, a freed slave owed the dominus who freed him honor et sequi, including the procession to the grave. This led to a great number of slaves being freed on the death bed. Rome was gradually crowding with freed slaves, enlarging the poor classes within society. Therefore Augustus passed laws against luxury. They restricted liberation of slaves, but could be partly evaded by the fideicommissum. The fideicommissum also gave way to granting the rights of a patronus to the person who was committed to freeing the slave.
Literature
- Borkowski, Andrew, and Paul du Plessis. Textbook on Roman Law, 3rd ed. Oxford: Oxford University Press, 2005.
- Buckland, William Warwick. The Main Institutions of Roman Private Law. Cambridge: Cambridge University Press, 1931.
- Curzon, L. B. Roman Law. London: Macdonald & Evans Ltd., 1966.
- Der Neue Pauly. Edited by Hubert Cancik and Helmuth Schneider. Stuttgart et al.: J.B. Metzler Verlag, Vol. 2: 1997; Vol. 4: 1998; Vol. 7: 1999.
- Kaser, Max. Roman Private Law, 2nd ed. Translation by Rolf Dannenbring of Romisches Privatrecht, 6th ed. London: Butterworths, 1968.
- Watson, Alan. Roman Private Law around 200 BC. Edinburgh: Edinburgh University Press, 1971.