Fideicommissum

Last updated

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 for several centuries. The word is a conjunction of the Latin words fides (trust) and committere (to commit), and thus denotes that something is committed to one's trust.

Contents

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 of Justinian , 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 of Justinian , 2.23.2

Exegesis

This fragment dates to the reign of Caesar Augustus, who first decreed certain requirements for the institution of the fideicommissum. [1] The institution itself was first mentioned in 200 BC by Terence in Andria , 290–98: "tuae mando fide". [2]

It functioned thus: the testator nominated an heir to act as fiduciarius, entrusted with devising the inheritance 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 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. [3] The true reason for it lies in the nature of the institution itself. Personal security in Rome was much more important than it is today, primarily because the Romans more greatly valued the duties of friendship. [4] Therefore certain legal institutions were simply premised on bona fides , 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. [5] This threat was sufficient force to guarantee that the fiduciaries would satisfy their obligations. Being 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 use; redefined by Justinian I, it may have by his reign existed for 700 years. [6] 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. [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.

See also

Related Research Articles

<span class="mw-page-title-main">Roman law</span> Legal system of Ancient Rome (c. 449 BC – AD 529)

Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.

<i>Digest</i> (Roman law) Roman law digest

The Digest, also known as the Pandects, is a name given to a compendium or digest of juristic writings on Roman law compiled by order of the Byzantine emperor Justinian I in 530–533 AD. It is divided into 50 books.

The lex Aquilia was a Roman law which provided compensation to the owners of property injured by someone's fault, set in the 3rd century BC, in the Roman Republic. This law protected Roman citizens from some forms of theft, vandalism, and destruction of property.

<span class="mw-page-title-main">Legal history of wills</span>

Wills have a lengthy history.

<i>Lex Papia Poppaea</i> Ancient Roman law

The Lex Papia et Poppaea was a Roman law introduced in 9 AD to encourage and strengthen marriage. It included provisions against adultery and against celibacy after a certain age and complemented and supplemented Augustus' Lex Iulia de maritandis ordinibus of 18 BC and the Lex Iulia de adulteriis coercendis of 17 BC. The law was introduced by the suffect consuls of that year, Marcus Papius Mutilus and Quintus Poppaeus Secundus, although they themselves were unmarried.

Quintus Pedius was a Roman politician and general who lived during the late Republic. He served as a military officer under Julius Caesar for most of his career. Serving with Caesar during the civil war, he was elected praetor in 48 BC and was given a triumph for victories over the Pompeians during the civil war's second Spanish campaign.

The lex Gabinia, lex de uno imperatore contra praedones instituendo or lex de piratis persequendis was an ancient Roman special law passed in 67 BC, which granted Pompey the Great proconsular powers in any province within 50 miles of the Mediterranean Sea without holding a properly elected magistracy for the purpose of combating piracy. It also gave Pompey the power to appoint many legates and significant financial resources. The law was proposed and passed by the tribune Aulus Gabinius.

<span class="mw-page-title-main">Codicil (will)</span> Supplementary document to a testament

A codicil is a testamentary or supplementary document similar but not necessarily identical to a will. In some jurisdictions, it may serve to amend, rather than replace, a previously executed will. In others, it may serve as an alternative to a will. In still others, there is no recognized distinction between a codicil and a will.

Lex Voconia was a law established in ancient Rome in 169 BC.

William Warwick Buckland, FBA was a scholar of Roman law, Regius Professor of Civil Law at the University of Cambridge from 1914 to 1945.

The Lex Scantinia is a poorly documented Roman law that penalized a sex crime (stuprum) against a freeborn male minor. The law may also have been used to prosecute adult male citizens who willingly took a passive role in having sex with other men. It was thus aimed at protecting the citizen's body from sexual abuse (stuprum), but did not prohibit homosexual behavior as such, as long as the passive partner was not a citizen in good standing. The primary use of the Lex Scantinia seems to have been harassing political opponents whose lifestyles opened them to criticism as passive homosexuals or pederasts in the Hellenistic manner.

Marcus Junius D. f. D. n. Silanus was a member of the Junii Silani, a noble Roman family, who held the consulship in 109 BC.

<i>Senatus consultum</i>

A senatus consultum is a text emanating from the senate in Ancient Rome. It is used in the modern phrase senatus consultum ultimum.

The Institutes is a beginners' textbook on Roman private law written around 161 CE by the classical Roman jurist Gaius. The Institutes are considered to be "by far the most influential elementary-systematic presentation of Roman private law in late antiquity, the Middle Ages and modern times". The content of the textbook was considered to be lost until 1816, when a manuscript of it − probably of the 5th century − was discovered.

In Roman law, contracts could be divided between those in re, those that were consensual, and those that were innominate contracts in Roman law. Although Gaius only identifies a single type of contract in re, it is commonly thought that there were four, as Justinian identifies: mutuum, commodatum, depositum (deposit) and pignus (pledge).

Damnum iniuria datum was a delict of Roman law relating to the wrongful damage to property. It was created by the Lex Aquilia in the third century BC, and consisted of two parts: chapter one, which dealt with the killing of another's slave or certain types of animal; and chapter three which related to other types of property. It was widely extended both by reference to the words of the statute themselves and by the Praetor.

The gens Falcidia was a plebeian family at Rome. It is known chiefly from two individuals, Gaius Falcidius and Publius Falcidius, both of whom were influential in the development of Roman law during the first century BC.

The legal history of the Catholic Church is the history of the oldest continuously functioning legal system in the West, much later than Roman law but predating the evolution of modern European civil law traditions. The history of Latin canon law can be divided into four periods: the jus antiquum, the jus novum, the jus novissimum and the Code of Canon Law. In relation to the Code, history can be divided into the jus vetus and the jus novum. Eastern canon law developed separately.

Testate succession exists under the law of succession in South Africa.

Inheritance law in ancient Rome was the system of law that governed the inheritance of property in Ancient Rome. This law was governed by the civil law of the Twelve Tables and the laws passed by the Roman assemblies, which tended to be very strict, and law of the praetor, which was often more flexible. The resulting system was extremely complicated and was one of the central concerns of the whole legal system. Discussion of the laws of inheritance take up eleven of the fifty books in the Digest. 60-70% of all Roman litigation was concerned with inheritance.

References

  1. ↑ Kaser, 6, § 77, I.
  2. ↑ Terence, Andria 290–98; Watson, p. 84 et seq.; 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 the basis of any mancipatio as the most commonly used form of agreement, made them incapable of participating in commercial life (Kaser, 2, § 14, III).
  6. ↑ The first mention dates 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 et seq.; 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 so-called Testamentum Dasumii , where the testator 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

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.