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p536 Fiducia

Article by George Long, M.A., Fellow of Trinity College
on pp536‑537 of

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

FIDU′CIA. If a man transferred his property to another, on condition that it should be restored to him, this contract was called Fiducia, and the person to whom the property was so transferred was said fiduciam accipere (Cic. Top. c10). A man might transfer his property to another for the sake of greater security in time of danger, or for other sufficient reason (Gaius, II.60). The contract of fiducia or pactum fiduciae also existed in the case of pignus; and in the case of mancipation. [Emancipatio]. The hereditas itself might be an object of fiducia. [Fideicommissum]. The trustee was bound to discharge his trust by restoring the thing: if he did not, he was liable to an actio fiduciae or fiduciaria, which was an actio bonae fidei (Cic. de Off. III.15, ad Fam. VII.12; ut inter bonos bene agier oportet). If the trustee was condemned in the action, the consequence was infamia. Cicero enumerates the judicium fiduciae with that tutelae and societatis as "judicia summae existimationis et paene capitis" (Cic. pro Ros. Com. c6), where he is evidently alluding to the consequence of infamia. (Compare Savigny, System, &c. vol. II p176.)

When the object for which a thing was transferred to another was attained, a remancipatio of those things which required to be transferred by mancipatio or in jure cessio was necessary; and with this view a particular contract (pactum fiduciae) was inserted in the formula of mancipatio. If no remancipatio took place, but only a simple restitutio, usucapio was necessary to restore the Quiritarian ownership, and this was called usureceptio. The contract of fiducia might be accompanied with a condition, by virtue of which the fiducia might cease in a given case, and thus the fiducia was connected with the Commissoria Lex, as we see in Paulus (Sent. Recept. II. tit. 13), and in Cic. pro Flacco, c21, "fiducia commissa," which may be p537explained by reference to Commissum. (Gaius, II.60, III.201; Rosshirt, Grundlinien, &c. § 99; Rein, Das Röm. Privatrecht; Heinecc. Syntagma, ed. Haubold.)


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