Afideicommissum 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 ancientRoman law for several centuries. The word is a conjunction of the Latin wordsfidei ("to/for trust"), dative singular offides ("trust") andcommissum ("left"), nominative neuter singular perfect past participle ofcommitto ("to leave, bequeath, commit"), it thus denotes that something is committed to one's trust.
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 afideicommissum 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
This fragment dates to the reign ofCaesar Augustus, who first decreed certain requirements for theinstitution of thefideicommissum.[1] The institution itself was first mentioned in 200 BC byTerence inAndria, 290–98: "tuae mando fide".[2]
It functioned thus: the testator nominated anheir to act asfiduciarius, entrusted with devising theinheritance to a beneficiary denominated the "fideicommisarius".
Thefideicommissum enabled theheres to be left with the desire of the testator to devise hisestate to theproscripti, and theheres would execute the transfer to them.
Institutes, 2.23.1 indicates thatAugustus instituted thefideicommissum as legally binding by favouring it in individual cases. Thus its acceptance was directly based onEmperor's Acts, but even previous to this thefideicommissum was always enforceable.[3] The true reason for it lies in the nature of the institution itself. Personal security inRome 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 onbona fides, e.g. thetutela,societas, anddepositum, which did not decrease but rather reinforced their security. Breach of a fiduciary agreement led inevitably to beinginfamis, 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 ofhonores,consideration was not required.
The great success of thefideicommissum as a cleverfraus legi fracta is proved by reference to its long use; redefined byJustinian 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 offideicommissum is described inInstitutes, 2.23.2. There was no need for a certain formula, any word describing the beneficiaries, such asrogo,peto, orvolo, employed with the term "fidei tuae committo" sufficiently instituted afideicommissum.[7] It could be constituted in a will or in acodicil, made orally or even declared by mere gestures. Most attractive of all, it could be added or revoked or varied after theinstitutio heredes itself.[8] Taking all these advantages in account, it is not surprising that thelegatus, with its strict formal requirements, was far less popular.[9] In later eras, a gradual assimilation oflegates andfideicommissa took place; under Justinian, the two institutions were fused, in an example of the vulgarisation of Roman Law after its classic era.
Most important, thefideicommissum enabled transferring property by will to those excluded from inheriting. Thelex Voconia in 169 BC for example did not allow women to be appointed as an heir of Romans listed as wealthy by thecensor.[10] Later, Augustus enforced hisleges Julia by introducing harshleges caducariae, which punished the unmarried and the childless by denying theircapacitas, the privilege of inheriting (theLex Julia de Maritandis Ordinibus was passed in 18 BC and thelex Papia Poppeia in 9 AD (Inst. 1.145)).[11] But thefideicommissum enabled a prosperouspater familias to appoint hisamicus as an heir, who would then be trusted with transferring the inherited property to the unmarriedfilia. This would ensure her being provided for after his death.
Holding property within a family was of great importance for several reasons. Practically, it ensured the survival of thefamilia, its name and wealth. Furthermore, it was demanded by the sacral necessity of worshipping thepenates, 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 afideicommissum. It was able to regulate the succession of several generations by will and hence incorporates the Roman root of family settlements.[12] Unlikelegates, which only allowed passing estate on to aheres, andusufructus, which required a determinate person, thefideicommissum could be granted toincertae personae.[13] Using a fideicommissary substitution (making onefideicommissum subject to another, enabling the preservation of property within a family for generations through successive trusts) the grantor could therefore direct hisfilius to transfer the estate on to his son at death and so on in perpetuity.[14]
Legates are by nature very similar to thefideicommissum, but the latter did not suffer from the same restrictions.Legates could only be charged on aheres, and thelex Falcidia in 41 BC constrained the legacy to three quarters of the entire inheritance.[15] This of course did not apply for thefideicommissum and with such could be evaded.
Another existing use of thefideicommissum is described in G 2.263-266:libertas quoque servo per fideicommissum dari potest if theheres orlegatarius is requested to perform themanumissio to become thepatronus of the slave so freed. Freeing slaves was attractive for thedominus 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 himhonor 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 thefideicommissum. Thefideicommissum also gave way to granting the rights of apatronus to the person who was committed to freeing the slave.
