Fideicommissum

Fideicommissum

The "fideicommissum" was one of the most popular legal institutions in Roman Law for several decades. It translates from the Latin word "fides" (trust) and "committere" (to commit), meaning that something is committed to ones trust.

I. Original Source

Inst. 2, 23, l"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."Inst. 2, 23, 2"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."

II. Translation:

Inst. 2, 23, 1First 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.Inst. 2, 23, 2The words which are properly and commonly used to install a fideicommissum are „I beg, I ask, I wish, I intrust”; these [words] are therefore sufficient individually, but also if all combined.

III. Exegesis

This fragment dates back to the time of Augustus, who for the first time sets up certain requirements for the institution of the "fideicommissum". [Kaser 6, § 77 I.] The institute itself was first mentioned in 200 BC (Ter. Andr. 290-298 “"tuae mando fide"”). [Watson p. 84 ssq; Buckland, Main Inst., p. 230]

A appoints B as a heir acting as a "fiduciarius" entrusted with passing the inheritance on to C, the so called "fideicommisarius".

1. PurposeThe "fideicommissum" made possible that the "heres" could be left with the grantors desire to hand over the estate to the "proscripti", and the transfer would be carried out between them.

2. EnforceabilityInst 2, 23, 1 shows it was Augustus who made the "fideicommissum" legally binding by favouring it in individual cases. Herewith its acceptance was directly based on Emperor’s Acts, but even previous to this the "fideicommissum" did never lack enforceability. [Curzon, p. 119; Buckland, Main Inst., p. 228; DNP, Vol. 4 “fideicommissum”.] 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. [Watson, p. 119.] Therefore certain legal institutions were simply based on "bona fides" (eg. the "tutela", "societas", "depositum"), which did not decrease but rather enforce their security. Breach of a fiduciary agreement lead inevitably to being "infam", which meant the life time incapability of taking part in any commercial actions. [Derived from the sacral laws in the XII Tables, infames were excluded from the right of making applications in any trials and from holding certain offices. Far worse than this, they could not make valuable promises anymore, and this, being basis to any "mancipatio" as most commonly used agreement, made them incapable of participating in commercial life (Kaser 2 § 14 III). ] This threat was force enough, and ensured the "fiduciaries" would not fail. As a matter of "honores", consideration was not required.

3. ApplicabilityThe great success of the "fideicommissum" as a clever "fraus legi fracta" is proved referring to its long usage (redefined by Justinian it may have then existed up to 700 years). [The first mentioning dates back to the 2nd century BC (Ter. Andr. 290-298 “"tuae mando fide"”), DNP Vol. 4 “fideicommissum”, and similar forms were known, eg. the fiducia, Watson p. 84 ssq; Buckland, Main Inst., p. 230.] The reasons lie in the great variety of cases it could deal with, furthermore in the lack of formal requirements which had to be met.
(1) Restricted "capacitas"Most important, the "fideicommissum" enabled transferring property by will to those excluded from inheriting. The "Lex Voconia" in 169 BC for example did not allow women to be appointed as a heir of Romans listed as wealthy by the "censor". [Inst. 2, 274 ; 226. What the lex Voconia was aiming at it not entirely sure. She may have tried to reduce luxury enjoyed by women, but more likely she reduced women’s role in the preservation of the penates. DNP Vol. 7, “"lex voconia"”; Borkowski/de Plessis 8.4.1.3 (b).] 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)). [Details with Kaser 6, § 77 II 2c; DNP Vol. 2 “"caducum"”.] 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.
(2) SettlementsHolding 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. [Kaser 6, § 77 II 3; Curzon p. 119 .] Unlike "legates", which only allowed passing estate on to a "heres", and "usufructus", which required a determinate person, the "fideicommissum" could be granted to "incertae personae". [Buckland, Main Inst., p. 231.] Using a fideicommissary substitution (This means making a "fideicommissum" subject to another, which enables preserving property within a family for generations by creating these successive trusts) the grantor could therefore direct his "filius" to tranfer the estate on to his son at death and so on in perpetuity. [Evidence of this has been found in the will of Dasumius, who wishes his land to be given to "liberti" with a right of survivirship. On the death of the survivor it is to go to "posteri". Whereas the "Senatus Consultum Pegasianum" (A.D. 73) tried to restrict this by granting to the "fiduciarius" a quarter of the estate, it was Hadrian who stopped settlements being created by prohibiting "fideicommissa ad increate personae". Later, the classical jurists introduced a thing such as a "fideicommissum" for the "familia", which allowed tying up property for four generations. This may have been, says Buckland, inspiring for the remark of Bereford in Belyng’s case (Y. BB. 5Ed. II, Easter Term). For closer details Buckland Main Inst., p. 232 et seq.]
(3) 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 ¾ of the entire inheritance. [ Inst. 2, 16; DNP Vol. 7 „lex Facidia“; Buckland Main Inst., p. 168; 231.] This of course did not apply for the "fideicommissum" and with such could be evaded.
(4) Freeing SlavesAnother existing use of the fideicommisum 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" 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 lead 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.
b) Formal RequirementsThe "fideicommissums"’ very practical informality and flexibility is described in Inst 2, 23, 2. There was no need for a certain formula, any word describing the beneficiarys will such as "rogo", "peto", or "volo", employed with the term “"fidei tuae committo"” sufficiently instituted a "fideicommissum". [Kaser 6, § 77 II 1.] It could be constituted in a will or in a "codicil", made orally or even declared by mere gestures and most attractive of all, it could be added or revocated or varied after the "institutio heredes" itself. [As shown in G. 2, 249; PS 4, 1, 5-6; and Buckland/McNair p. 163; 170; supported by Borkowski/ du Pellis 8.9.2.3.] Taking all these advantages in account, it does not strike as surprising that due to its strict formal requirements the "legatus" was far less popular. [The terms under which the legatus is instituted are explained in Buckland, Main Inst. P. 231 with details on the gradual assimilation of legates and fideicommissa, which under Justinian lead to the fusion of the two former separate institutions (a sad example of the vulgarisation of Roman Law after the classic era).] Later though, a gradual assimilation of "legates" and "fideicommissa" took place, which under Justinian lead to the fusion of the two former separate institutions. This is a sad example of the vulgarisation of Roman Law after the classic era.

IV. References

V. Literature

Borkowski, Andrew/Du Plessis, Paul, Textbook on Roman Law; 3rd ed. 2005, Oxford, OUP
Buckland, William Warwick, The Main Institutions of Roman Private Law; 1931 Cambridge, CUP
Curzon, L. B., Roman Law; 1966 London, Macdonald & Evans Ltd
Kaser, Max, Roman Private Law; 2nd ed., translation by Rolf Dannenbring of « Romisches Privatrecht » 6th ed. By Max Kaser by 1968 London, Butterworths
Watson, Alan, Roman Private Law around 200 BC; 1971 Edinburgh, Edinburgh University Press
Hubert Cancik, Helmuth Schneider, Der Neue Pauly (DNP); Vol. 2: 1997; Vol. 4: 1998; Vol. 7: 1999, Stuttgart et al., J. B. Metzler Verlag