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p535 Fideicommissum

Article by George Long, M.A., Fellow of Trinity College
on pp535‑536 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

FIDEICOMMISSUM is a testamentary disposition, by which a person who gives something to another imposes on him the obligation of transferring it to a third person. The obligation was not created by words of legal binding force (civilia verba), but by words of request (precative), such as "fideicommitto," "peto," "volo dari," and the like; which were the operative words (verba utilia). If the object of the fideicommissum was the hereditas, the whole or a part, it was called fideicommissaria hereditas, which is equivalent to a universal fideicommissum; if it was a single thing or a sum of money, it was called fideicommissum singulae rei or fideicommissum speciale. The obligation to transfer a fideicommissaria hereditas could only be imposed on the heres; the obligation of transferring a single thing might be imposed on a legatee.

By the legislation of Justinian a fideicommissum of the hereditas was a universal succession; but before his time the person entitled to it was sometimes "heredis loco," and sometimes "legatarii loco." The heres still remained heres after he had parted with the hereditas. Though the fideicommissum resembled a vulgar substitution, the substituted person only became heres when the first person, named heres, failed to become such; in the case of the fideicommissum, the second heres had only a claim on the inheritance when the person, named heres, had actually become such. There could be no fideicommissum unless there was a heres.

The person who created the fideicommissum must be a person who was capable of making a will; but he might create a fideicommissum orally without having made a will. The person who was to receive the benefit of the fideicommissum was the fideicommissarius; and a person might be a fideicommissarius who could take a legacy (Ulp. Frag. XXV.6); the person on whom the obligation was laid was the fiduciarius. The fideicommissarius himself might be bound to give the fideicommissum to a second fideicommissarius. Originally the fideicommissarius was considered as a purchaser (emptoris loco); and when the heres transferred to him the hereditas, mutual covenants (cautiones) were entered into by which the heres was not to be answerable for any thing which he had been bound to do as heres, nor what he had given bona fide, and if an action was brought against him as heres, he was to be defended. On the other hand the fideicommissarius (qui recipiebat hereditatem) was to have whatever part of the hereditas might still come to the hands of the heres, and was to be allowed to prosecute all rights of action which the heres might have. But it was enacted by the senatus-consultum Trebellianum, in the time of Nero, that when the heres had given up the hereditas to the fideicommissarius, all right of action by or against the heres should be transferred to the fideicommissarius. The praetor accordingly gave utiles actiones to and against the fideicommissarius. From this time the heres ceased to require from the fideicommissarius the covenants which he had formerly taken as his security against his general liabilities as heres.

As fideicommissa were sometimes lost because the heres would not accept the inheritance, it was enacted by the senatus-consultum Pegasianum, in the time of Vespasian, that the fiduciarius might retain one fourth of the hereditas, and the same power of retainer was allowed him in the case of single things. In this case the heres was liable to all rights and charges (onera hereditaria); but the same agreement was made between him and the fideicommissarius which was made between the heres and the legatus partiarius, that is, the profit or loss of the inheritance was shared between them according to their shares (pro rata parte). Accordingly, if the heres was required not to restore not more than three-fourths of the hereditas, the senatus-consultum Trebellianum took effect, and any loss was borne by him and the fideicommissarius in proportion to their shares. If the heres was required to restore more than three-fourths or the whole, the senatus-consultum Pegasianum applied. If the heres refused to take possession of (adire) the hereditas, the fideicommissarius could compel him, by application to the praetor, to take possession of it and to restore it to him; but all the costs and charges accompanying the hereditas were borne by the fideicommissarius.

Whether the heres was sole heir (ex asse), and required to restore the whole or a part of the hereditas, or whether he was not sole heir (ex parte) and was required to restore the whole of such part, or a part of such part, was immaterial: in all cases the S. C. Pegasianum gave him a fourth.

By the legislation of Justinian the senatus-consulta Trebellianum and Pegasianum were consolidated, and the following rules were established:— the heres who was charged with a universal fideicommissum always retained one-fourth part of the hereditas (which was called simply Quarta, or Falcidia, or commodium Legis Falcidiae), and all claims on behalf of or against the hereditas were shared between the fiduciarius and fideicommissarius who was considered heredis loco. If the fiduciarius suffered himself to be compelled to take the inheritance, he lost his Quarta, and any other advantage he might have from the hereditas. If the fiduciarius was in possession, the fideicommissarius had a personal actio ex testamento against him for the hereditas. If not in possession, he must at least verbally assent to the claim of the fideicommissarius, who had then the hereditatis petitio fideicommissaria against any person who was in possession of the property.

The Quarta is in fact the Falcidia, applied to the case of universal fideicommissa. Accordingly, the heres only was entitled to it, and not a fideicommissarius, who was himself charged with a fideicommissum. If there were several heredes charged with fideicommissa, each was entitled to a quarta of his portion of the hereditas. The heres was entitled to retain a fourth out of the hereditas, not including therein what he took as legatee.

The fiduciarius was bound to restore the hereditas at the time named by the testator, or, if no time was named, immediately after taking possession of it. He was entitled to be indemnified for all proper costs and charges which he had sustained with respect to the hereditas; but he was answerable for any damage or loss which it had sustained through his culpa.

Res singulae, as already observed, might also p536be the objects of a fideicommissum, as a particular piece of land, a slave, a garment, piece of silver, or a sum of money; and the duty of giving it to the fideicommissarius might be imposed either on the heres or on a legatee. In this way a slave also might receive his liberty, and the request to manumit might be addressed either to the heres or the legatarius. The slave when manumitted was the libertus of the person who manumitted him. There were many differences between fideicommissa of single things and legacies. A person about to die intestate might charge his heres with a fideicommissum, whereas a legacy could only be given by a testament, or by a codicil which was confirmed by a proper declaration of the testator in a will; but a fideicommissum could be given by a simple codicil not so confirmed. A heres instituted by a will might be requested by a codicil, not so confirmed as above, to transfer the whole hereditas, or a part, to a third person. A woman who was prevented by the provisions of the Voconia lex from taking a certain hereditas, might take it as a fideicommissum. The Latini, also, who were prohibited by the Lex Junia from taking hereditates and legacies by direct gift (directo jure) could take by fideicommissa. It was not legal to name a person as heres, and also to name another who after the death of the heres, should become heres; but it was lawful to request the heres on his death to transfer the whole or a part of the hereditas to another. In this way a testator indirectly exercised a testamentary power over his property for a longer period than the law allowed him to do directly. A man sued for a legacy per formulam; but he sued for a fideicommissum before the consul or praetor for fideicommissa at Rome, and in the provinces before the praeses. A fideicommissum was valid, if given in the Greek language, but a legacy was not, until a late period. Justinian finally assimilated legacies and singular fideicommissa. [Legatum; Inst. 2 tit. 20 §3; Cod. 6 tit. 43 s2.]

It appears that there were no legal means of enforcing the due discharge of the trust called fideicommissum till the time of Augustus, who gave the consuls jurisdiction in fideicommissa. In the time of Claudius praetores fideicommissarii were appointed; in the provinces the praesides took cognizance of fideicommissa. The consuls still retained their jurisdiction, but only exercised it in important cases (Quintil. Inst. III.6). The proceeding was always extra ordinem (Gaius, II.227;º Ulp. Frag. tit. 25s12). Fideicommissa seem to have been introduced in order to evade the civil law, and to give the hereditas, or a legacy, to a person who was either incapacitated from taking directly, or who could not take as much as the donor wished to give. Gaius, when observing that peregrini could take fideicommissa, observes that "this" (the object of evading the law) "was probably the origin of fideicommissa;" but by a senatus-consultum made in the time of Hadrian, such fideicommissa were claimed by the fiscus. They are supposed to be the commendationes morientiumº mentioned by Cicero (de Fin. III.20). There is the case of Q. Pompeius Rufus (Val. Max. IV.2.7), who, being in exile, was legally incapacitated from taking any other thing under the will of a Roman citizen, but could claim it from his mother, who was the heres fiduciarius. They were also adopted in the case of gifts to women, in order to evade the Lex Voconia [Lex Voconia]; and in the case of proscribed persons, incertae personae, Latini, peregrini, caelibes, orbi. But the senatus-consultum Pegasianum destroyed the capacity of caelibes and orbi to take fideicommissa, and gave them to those persons mentioned in the will who had children, and in default of such to the populus, as in the case of hereditates and legata [Bona Caduca]. Municipia could not take as heredes [Collegium]; but by the senatus-consultum Apronianum, which was probably passed in the time of Hadrian, they could take a fideicommissa hereditas (Ulp. Frag. tit. 22 s5; Plin. Ep. V.7) [Heres (Roman)].

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