Fideicommissum

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.

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 Augustus, who for the first time sets up certain requirements for the institution of the fideicommissum.[1] The institution itself was first mentioned in 200 BC (Terence, Andria 290–98: tuae mando fide).[2]

A appoints B as an heir acting as a fiduciarius entrusted with passing the inheritance 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 estate 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.[3] The true reason for it lies 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.[4] 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.[5] This threat was force enough, and ensured the fiduciaries would not fail. As a matter of honores, consideration 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 I, it may have by his reign existed up to 700 years).[6] 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.[7] 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.[8] Taking all these advantages in account, it is not surprising that the legatus, with its strict formal requirements, was far less popular.[9] 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 in 169 BC for example did not allow women to be appointed as an heir of Romans listed as wealthy by the censor.[10] 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)).[11] 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, 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.[12] 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.[13] 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.[14]

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.[15] 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 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.

References

  1. ↑ Kaser 6, § 77 I.
  2. ↑ Terence, Andria 290–98; Watson p. 84 ssq; Buckland, Main Inst., p. 230
  3. ↑ Curzon, p. 119; Buckland, Main Institutions, p. 228; Der Neue Pauly, Vol. 4 "fideicommissum".
  4. ↑ Watson, p. 119.
  5. ↑ Derived from the sacral laws in the Twelve 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).
  6. ↑ The first mention dates back to the 2nd century BC (see above), Der Neue Pauly Vol. 4 "fideicommissum", and similar forms were known, e.g. the fiducia, Watson p. 84 ssq; Buckland, Main Inst., p. 230.
  7. ↑ Kaser 6, § 77 II 1.
  8. ↑ 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.
  9. ↑ The terms under which the legatus was instituted are explained in Buckland, Main Inst. p. 231, with details on the gradual assimilation of legates and fideicommissa, which under Justinian led to the fusion of the two former separate institutions (an example of the vulgarisation of Roman law after its classic era).
  10. ↑ Inst. 2.274; 226. What the lex Voconia was aiming at it not entirely sure. It may have tried to reduce luxury enjoyed by women, but more likely it reduced women's role in the preservation of the penates. Der Neue Pauly Vol. 7, "lex voconia"; Borkowski/de Plessis 8.4.1.3 (b).
  11. ↑ Details with Kaser 6, § 77 II 2c; Der Neue Pauly Vol. 2 "caducum".
  12. ↑ Kaser 6, § 77 II 3; Curzon p. 119.
  13. ↑ Buckland, Main Inst., p. 231.
  14. ↑ Evidence of this has been found in the will of Dasumius, who wishes his land to be given to liberti with a right of survivorship. 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 incertae 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 see: Buckland, Main Institutions, p. 232 et seq.
  15. ↑ Inst. 2, 16; Der Neue Pauly Vol. 7 "lex Facidia"; Buckland, Main Institutions, p. 168; 231.

Literature

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