A ''fideicommissum'' is a type of bequest in which the beneficiary is encumbered to convey parts of the decedent's estate to someone else. For example, if a father leaves the family house to his firstborn, on condition that they will bequeath it to their first child. It was one of the most popular legal institutions in ancient
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
for several centuries. The word is a conjunction of the Latin words ''
fides
Fides or FIDES may refer to:
*Faith, trust, loyalty, or fidelity, or a religious belief
* Fides (cycling team), an Italian professional cycling team in 1961
*Fides (deity), goddess of trust in Roman mythology
* Fides (reliability), guide allowing ...
'' (trust) and ''committere'' (to commit), and thus denotes that something is committed to one's trust.
Text and translation
Exegesis
This fragment dates to the reign of
Caesar Augustus
Caesar Augustus (born Gaius Octavius; 23 September 63 BC – 19 August AD 14), also known as Octavian, was the first Roman emperor; he reigned from 27 BC until his death in AD 14. He is known for being the founder of the Roman Pri ...
, who first decreed certain requirements for the
institution
Institutions are humanly devised structures of rules and norms that shape and constrain individual behavior. All definitions of institutions generally entail that there is a level of persistence and continuity. Laws, rules, social conventions a ...
of the ''fideicommissum''. The institution itself was first mentioned in 200 BC by
Terence
Publius Terentius Afer (; – ), better known in English as Terence (), was a Roman African playwright during the Roman Republic. His comedies were performed for the first time around 166–160 BC. Terentius Lucanus, a Roman senator, brought ...
in ''
Andria
Andria (; Barese: ) is a city and ''comune'' in Apulia ( southern Italy). It is an agricultural and service center, producing wine, olives and almonds. It is the fourth-largest municipality in the Apulia region (behind Bari, Taranto, and Fogg ...
'', 290–98: "''tuae mando fide''".
It functioned thus: the testator nominated an
heir
Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Officiall ...
to act as ''fiduciarius'', entrusted with devising the
inheritance
Inheritance is the practice of receiving private property, Title (property), titles, debts, entitlements, Privilege (law), privileges, rights, and Law of obligations, obligations upon the death of an individual. The rules of inheritance differ ...
to a beneficiary denominated the "''fideicommisarius''".
Purpose and enforceability
The ''fideicommissum'' enabled the ''heres'' to be left with the desire of the testator to devise his
estate to the ''proscripti'', and the ''heres'' would execute the transfer to them.
''Institutes'', 2.23.1 indicates that
Augustus
Caesar Augustus (born Gaius Octavius; 23 September 63 BC – 19 August AD 14), also known as Octavian, was the first Roman emperor; he reigned from 27 BC until his death in AD 14. He is known for being the founder of the Roman Pri ...
instituted the ''fideicommissum'' as 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'' was always enforceable. The true reason for it lies in the nature of the institution itself. Personal security in
Rome
, established_title = Founded
, established_date = 753 BC
, founder = King Romulus (legendary)
, image_map = Map of comune of Rome (metropolitan city of Capital Rome, region Lazio, Italy).svg
, map_caption ...
was much more important than it is today, primarily because the Romans more greatly valued the duties of friendship. Therefore certain legal institutions were simply premised on ''
bona fides
In human interactions, good faith ( la, bona fides) is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case ...
'', e. g. the ''tutela'', ''societas'', and ''depositum'', which did not decrease but rather reinforced their security. Breach of a fiduciary agreement led inevitably to being ''
infamis'', which meant lifetime incapacity of making any commercial actions. This threat was sufficient force to guarantee that the fiduciaries would satisfy their obligations. Being a matter of ''honores'',
consideration
Consideration is a concept of English common law and is a necessity for simple contracts but not for special contracts (contracts by deed). The concept has been adopted by other common law jurisdictions.
The court in ''Currie v Misa'' declared ...
was not required.
Applicability
The great success of the ''fideicommissum'' as a clever ''
fraus legi fracta
In Roman mythology, Fraus was the goddess or personification of treachery and fraud.
She was daughter of Orcus and Night (Nyx). She was depicted with a woman's face, the body of a snake, and on her tail the sting of a scorpion.Johann Joachim Esch ...
'' is proved by reference to its long use; redefined by
Justinian I
Justinian I (; la, Iustinianus, ; grc-gre, Ἰουστινιανός ; 48214 November 565), also known as Justinian the Great, was the Byzantine emperor from 527 to 565.
His reign is marked by the ambitious but only partly realized ''renovat ...
, it may have by his reign existed for 700 years. The reasons lie in the great variety of cases it could resolve and the absence of formal requirements to satisfy.
The practical informality and flexibility of ''fideicommissum'' is described in ''Institutes'', 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 may refer to:
* Codicil (will), subsequent change or modification of terms made and appended to an existing trust or will and testament
* A modification of terms made and appended to an existing constitution, treaty, or standard form c ...
'', 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 Voconia
''Lex Voconia'' (The Voconian Law) 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 v ...
'' 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 Leges (plural of Latin lex: ''law'') may refer to:
Literature
* ''Laws'' (dialogue) Plato's last and longest dialogue
Ancient Roman law
* Leges regiae, early Roman laws introduced by the Kings of Rome
* Lex Julia (Leges Juliae), ancient Roman la ...
'' by introducing harsh ''
leges caducariae Leges (plural of Latin Lex (disambiguation), lex: ''law'') may refer to:
Literature
* Laws (dialogue), ''Laws'' (dialogue) Plato's last and longest dialogue
Ancient Roman law
* Leges regiae, early Roman laws introduced by the Kings of Rome
* Lex ...
'', which punished the unmarried and the childless by denying their ''capacitas'', the privilege of inheriting (the ''
Lex Julia de Maritandis Ordinibus
A ''lex Julia'' (plural: ''leges Juliae'') was an ancient Roman law that was introduced by any member of the gens Julia. Most often, "Julian laws", ''lex Julia'' or ''leges Juliae'' refer to moral legislation introduced by Augustus in 23 BC, o ...
'' was passed in 18 BC and the ''
lex Papia Poppeia
Lex or LEX may refer to:
Arts and entertainment
* ''Lex'', a daily featured column in the ''Financial Times''
Games
* Lex, the mascot of the word-forming puzzle video game ''Bookworm''
* Lex, the protagonist of the word-forming puzzle video ga ...
'' in 9 AD (''Inst''. 1.145)). But the ''fideicommissum'' 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
In ancient Roman religion, the Di Penates () or Penates ( ) were among the ''dii familiares'', or household deities, invoked most often in domestic rituals. When the family had a meal, they threw a bit into the fire on the hearth for 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
A ''legatus'' (; anglicised as legate) was a high-ranking Roman military officer in the Roman Army, equivalent to a modern high-ranking general officer. Initially used to delegate power, the term became formalised under Augustus as the officer ...
'', which only allowed passing estate on to a ''heres'', and ''
usufructus
Usufruct () is a limited real right (or ''in rem'' right) found in civil-law and mixed jurisdictions that unites the two property interests of ''usus'' and ''fructus'':
* ''Usus'' (''use'') is the right to use or enjoy a thing possessed, directl ...
'', 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
Publius Falcidius was an ancient Roman Tribune of the Plebs in 40 BCE, of the ''gens'' Falcidia.
He was the author of the ''Lex Falcidia de Legatis'', a law on inheritance which remained in force in the sixth century CE, since it was incorporated ...
'' in 41 BC constrained the legacy to three quarters of the entire inheritance.
[''Inst''. 2, 16; ''Der Neue Pauly'' Vol. 7 "lex Facidia"; Buckland, ''Main Institutions'', p. 168; 231.] 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 ''
patronus'' of the slave so freed.
Freeing slaves was attractive for the ''
dominus
Dominus or domini may refer to:
* Dominus (title), a title of sovereignty, clergy and other uses
Art, entertainment, and media
* Dominus (band), a Danish death metal band
* Dominus (DC Comics), an alien character in DC Comics
* Dominus (Marv ...
'' 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
Honour (British English) or honor (American English; see spelling differences) is the idea of a bond between an individual and a society as a quality of a person that is both of social teaching and of personal ethos, that manifests itself as a ...
'', 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.
References
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.
{{Authority control
Roman law
Wills and trusts