fideicommissum

FIDEICOMMISSUMwas a bequest which a person made by begging his heir or legatee to transfer something to a third person. Such a bequest was one of a fiduciary kind, its execution being entrusted to the goode faith of the party to whom the request was made. Fideicommissa were used for some time before they were made legally enforceable, devisees charged with them being at first only under a moral obligation to carry out the wishes of the deceased. This was the position of fideicommissa in the time of Cicero, who distinctly notices the practice of leaving fideicommissa (Cic. de Fin. 2.17, 18): the commendationes morientium mentioned by him (de Fin. 3.20, 65) appear to have been fideicommissa. It was not till the time of Augustus that fideicommissa were legally binding. Augustus was induced to enforce them partly by the desire of favouring particular individuals and partly on account of the scandal which some gross breaches of trust had caused. He himself, as heir of Lucius Lentulus, executed a fideicommissum with which he was charged by codicil (Inst. 2.25, pr.). Jurisdiction over fideicommissa was assigned by Augustus to the consuls. In the time of Claudius permanent praetores fideicommissarii were appointed, and the power of enforcing fideicommissa was given to the praesides of the provinces. (Suet. Cl. 22; Dig. 1, 2, 2.32.) Under Titus and subsequent emperors only one praetor fideicommissarius was appointed.

The consuls still retained their jurisdiction over fideicommissa, but only exercised it in important cases (Quintil. Inst. 3.6). Proceedings in respect to fideicommissa always belonged to extraordinaria, not to ordinaria jurisdictio, i.e. they were not transmitted by a magistratus to a judex, but were entirely under magisterial cognisance. The practice of creating fideicommissa arose from the desire of obtaining greater freedom in respect to the disposition of property after death than the civil law rules of inheritance admitted. The advantages of leaving property by way of fideicommissum rather than by the civil law institution of legatum were numerous (Gaius, 2.289). A fideicommissum could be more easily created than a legatum. Thus a legatum was not valid unless made by will or by codicil confirmed by will; it was necessary for a testator to use particular forms of words in order to bequeath a legatum and to express his intention in Latin. A fideicommissum, on the other hand, might be left without a will by simple words of request, such as fideicommitto, peto, volo dari, and the like. It might either be contained in written documents called codicilli, or expressed orally or even intimated simply by a nod ( etiam nutu relinquere fideicommissum in usu receptum est, Ulp. 25.3). It required no particular form of words, and might be expressed in Greek. The informal character of fideicommissa made them specially convenient when a man was called on suddenly to make a disposition of his property. Another advantage of fideicommissa was that they could be imposed on persons who could not be made subject to legata, for only a heres could be charged with a legatum; but a fideicommissum, if it consisted of a particular bequest, might be made binding not only on a heres, but also upon a legatarius. A person to whom a fideicommissum was left might himself be subject to a fideicommissum. A fideicommissum which bound a person to transfer an inheritance could only be charged on a heres, but a heres ab intestato as well as a heres ex testamento might be requested to make such a transfer, whereas the latter kind of heres only could be made subject to a legatum. In order to secure the carrying out of his intentions, a testator might request that, if his will failed from some cause to take effect as a will, his heres ab intestato should carry out its provisions as fideicommissa.

Fideicommissa were much used for the purpose of leaving property to persons who were either altogether incapable of taking directly under a will, or who could not take so much as ordinary persons. This was effected by leaving property to some one who was capable of taking according to civil law, or by allowing property to devolve under the rules of intestacy, and adding a fideicommissum for the benefit of some one who was under a total or partial disability. Fideicommissa were used in order to leave property to peregrini, who could not otherwise take. Gaius, when noticing this use of fideicommissa, remarks that the object of leaving property to persons of this class was a principal cause of the establishment of fideicommissa. (Gaius, 2.285; cf. Theoph. Paraphr. 2.23.1.) Fideicommissa were employed as early as the time of Cicero for making bequests to women in order to evade the Lex Voconia [VOCONIA ] (Cic. de Fin. 2.17, 18). Similarly fideicommissa were created for the benefit of caelibes and orbi in order to evade the Lex Papia Poppaea [LEX PAPIA POPPAEA ]; also for the purpose of bequeathing property to Latini Juniani, incertae personae, postumi alieni, and corporate bodies. In course of time, however, fideicommissa were put on much the same footing as legata in respect to the persons who could take them. Thus, by a senatusconsultum passed in the time of Hadrian, fideicommissa left to peregrini were made forfeitable to the treasury (Gaius, 2.285). The senatusconsultum Pegasianum prevented fideicommissa being made a means of evading the Lex Papia Poppaea, by giving fideicommissa left with this object to those persons in the will who had children, and in default of such to the treasury, as in the case of hereditates and legata [BONA CADUCA]. (Gaius, 2.286 a.) By a senatusconsultum of Hadrian it was declared that incertae personae and postumi alieni should be incapable of taking fideicommissa. In consequence of these changes in the law, Ulpian was able to state it as a rule that only those persons are capable of taking fideicommissa who can take legata (Ulp. 25.6). But the distinction that Latini Juniani were capable of taking fideicommissa but not legata, remained till this class of freedmen was abolished by Justinian. It was not possible to institute after the death of a person who became heres another heres to take his place, but a request might be made that the whole or part of an inheritance should, on or after the death of the heres, be transferred to another, in which case the heres of the heres would be bound by a fideicommissum to make the required transfer. By requesting each successive transferee of an inheritance to make it over on his death to some other member of a family, a kind of family settlement might be created. Justinian in his 115th Novell placed restrictions on the power of leaving such family fideicommissa. There was a difference between the effect of manumitting a slave by direct bequest and by fideicommissum; if manumitted in the latter way, the slave became the freedman of the person who had been requested to manumit him, whereas a freedman manumitted directly by will was looked on as the freedman of his deceased master (libertus orcinus). A person might be bound by fideicommissum to transfer his own property or that of a third party as well as the property of the deceased. If a person failed to execute a fideicommissum at the proper time, he was liable on account of mesne profits and interest, but interest could not be claimed, as a rule, against a heres who had failed to satisfy a legatum.

The differences between fideicommissa of single things and legata, which existed when Gaius wrote, disappeared in later law. The simplification of the law relating to the mode of creating legata and the requirement of formalities for the creation of fideicommissa was a considerable step in this direction (Cod. Theod. 4.4, 1; Cod. Justin. 6.37, 21). The difference in the forms of action for these two kinds of bequest ceased when the libellary procedure was substituted for the formulary. Justinian entirely assimilated legata and fideicommissa (Dig. 1, 30, 1). A fideicommissum of a specific thing did not pass the property in the thing to the fideicommissarius, but only gave him a personal action against the person who was requested to transfer the thing. ( Jus omne fideicommissi non in vindicatione sed in petitione consistit, Paul. Sent. 4.1, 16.) Justinian changed the law on this subject, giving to a fideicommissarius of a specific thing which had belonged to the deceased, as well as to a legatarius, both a personal action and an actio in rem for the recovery of the thing (Cod. 6.43, 1). The object of a fideicommissum might either be the inheritance, whether the whole or a part (fideicommissaria hereditas), or it might be a particular bequest (fideicommissum rei singulae).

It is necessary to give some account of the history of the law relating to the universal fideicommissum or fideicommissaria hereditas. A heres requested to transfer the whole or part of an inheritance to some one else is called fiduciarius, the person to whom the transfer is to be made being termed fideicommissarius. The heres fiduciarius by accepting the inheritance became personally bound to transfer it to the fideicommissarius. Originally the fideicommissarius was considered, when the transfer was made to him, to be in the position of a purchaser (emptoris loco), it being usual as a mere formality for the inheritance to be sold to him for a single coin (nummo uno). The effect of the transaction was to make the fideicommissarius a particular, not a universal successor; for the fiduciarius having once become heres necessarily continued to be heres, and consequently could not get rid of his liability to the creditors of the deceased. Hence the fiduciarius, in order to secure himself against the liability which he incurred if he accepted the inheritance, required before his acceptance that the fideicommissarius should enter into the same stipulations as were usually entered into between the vendor and purchaser of an inheritance, by which it was covenanted that the fiduciarius should be indemnified on account of all liability in respect to the inheritance. On the other hand, it was agreed that the fideicommissarius (qui recipiebat hereditatem) should have whatever part of the inheritance might still come into the hands of the heres, and should be allowed to maintain all actions concerning the inheritance in the name of the heres. (Gaius, 1.248-252.)

A great change was made in the relations of the heres fiduciarius and fideicommissarius by the senatusconsultum Trebellianum, which was passed under Nero A.D. 62. This law provided that on the transfer of an inheritance by a heres fiduciarius all rights of action maintainable by or against him should be transferred to and against the fideicommissarius. The praetor allowed the latter to sue and to be sued by means of actiones utiles. A heres who made a transfer under this statute practically ceased to be heres, the fideicommissarius being substituted in his place. The fideicommissarius to whom such a transfer was made, became fully liable for the debts of the deceased, and occupied the position of a universal successor. As this statute relieved the fiduciarius from all liability, the covenants which he had previously insisted on were no longer required. Fideicommissa were, however, sometimes lost, because the heres would not accept the inheritance if he got little or no advantage in so doing; the principle of the Quarta Falcidia, which had not previously applied to fideicommissa, but only to legata, was therefore extended to fideicommissa by the senatusconsultum Pegasianum, passed in the time of Vespasian: by this law a heres had the right of deducting one-fourth of the inheritance before transferring a universal or particular fideicommissum. If several co-heredes were charged with fideicommissa, each was entitled to a fourth of his share of the inheritance. If a fiduciarius took advantage of the senatusconsultum Pegasianum by deducting a fourth under it, he was not relieved by the senatusconsultum Trebellianum from all debts and charges (onera hereditaria) ; in this case the fideicommissarius continued to be a singular successor, like a legatarius partiarius or legatee of a part of an inheritance, and so he was required by the fiduciarius to enter into covenants by which he undertook to be answerable for liabilities in proportion to the share of the inheritance which he received (pro rata parte). The effect of these two enactments was this: if the heres was required to restore not more than three-fourths of the inheritance, the senatusconsultum Trebellianum took effect, and the heres was relieved from all liability beyond the proportion of the inheritance which was intended for him. If the heres was required to restore more than three-fourths or the whole, the heres took advantage of the senatusconsultum Pegasianum, but then he was not relieved from liability and could only protect himself by covenants with the fideicommissarius. The senatusconsultum Pegasianum gave the fideicommissarius the right to compel the heres to accept the inheritance (adire), but in this case all the benefits of the inheritance as well as its burdens attached to the fideicommissarius (Gaius, 2.258). By the legislation of Justinian the senatusconsultum Pegasianum was merged in the senatusconsultum Trebellianum, and the following rules were established. The heres who was charged with a universal fideicommissum might always retain one-fourth of the inheritance, if so much had not been left to him by the deceased ; if the fiduciarius retained one-fourth, all claims on behalf of or against the inheritance were shared between the fiduciarius and fideicommissarius, according to their respective shares. If the fiduciarius refused to accept the inheritance, the fideicommissarius could oblige him by action to do so; if after having been ordered by a court to enter, the fiduciarius continued to abstain, his acceptance was assumed to have been given. A fiduciarius who was compelled to take the inheritance, lost his quarta and any other advantage he might have derived from the inheritance. The express or implied assent of the fiduciarius was sufficient to transfer the inheritance to the fideicommissarius. The fiduciarius was bound to restore the inheritance at the time named by the deceased, or, if no time was named, immediately after accepting it. He was required to account for all property which had come into his hands, and was entitled to be indemnified for all proper costs and charges which he had sustained with respect to the inheritance; he was answerable for any damage or loss which it had suffered through his dolus or culpa. Conveyances which the fiduciarius had made of the property of the inheritance were void as against the fideicommissarius. After the transfer had been made to him, the fideicommissarius could maintain the hereditatis petitio fideicommissaria against anyone who had possession of the property of the inheritance. (Gaius, 2.246-289; Ulp. Fragm. tit. xxv.; Inst. 2.23, 24; Dig. 30-33, 36; Cod. 6.37-54; Arndts, Fortsetzung von Glück, 46.6-80; Mayer, Die Lehre von den Legaten Fideicommissen; Lassalle, Röm. Erbr. p. 120, &c.; Rosshirt, Verm. 1.120; Heimbach, Rechtslex. 4.286, s. v.; Vangerow, Pandekten, 2. § § 528, 556.)