Fideicommissum

The fideicommissum was a disposition whereby a testator made an informal request to a person (fiduciarius) to convey a benefit from the estate to a third party (fideicommissarius).

Besides the fact that there were no formal requirements with respect to fideicommissa and the testator could express his wish to introduce a fideicommissum in any manner,^[1169] the relevant bequest could appear not only in a will but also in a codicil even where such codicil had not been confirmed by a will.^[1170] In contrast to legacies that could only burden heirs, a variety of persons could be burdened with a fideicommissum such as intestate heirs, legatees, fideicommissarii, and debtors of the testator—in short, anyone who obtained a benefit from the estate.^[1171] It should be noted that although the fideicommissarius was not required to have the testamenti factio, the testator had to possess such a capacity if he was to create a legally enforceable fideicommissum. With regard to the vesting and lapse of fideicommissa the same principles applied as in legacies, although the issue of the validity of a fideicommissum was in general subject to greater flexibility of interpretation than was the case with legacies.^[1172]

Virtually anything could be the object of a fideicommissum as long as it was in commercio, including particular objects, rights and even the entire estate or a large portion thereof.

The disadvantages of the fideicomissum hereditatis for the heir are evident. In the first instance, the heir was often no more than an intermediary who obtained no benefits from the inheritance. Secondly, and more importantly, the heir was required to transfer to the fideicomissarius only the assets of the estate while he himself remained liable to its creditors. At the same time, whilst debtors of the estate remained liable to him alone, the heir had to hand over to the fideicomissarius whatever he recovered from them. In these circumstances an heir could scarcely be blamed if he chose to decline the inheritance, resulting in the devolution of the estate according to the rules of intestate succession. From an early period it became obvious that some method had to be devised to protect the heir, and the steps initiated to achieve this goal constitute an interesting and complicated chapter in Roman legal history. It thus became customary for the heir to sell the inheritance for a nominal price (nummo uno) to the fideicomissarius by means of a formal mancipatio. At the same time, the parties made reciprocal promises or stipulations (stipulationes emptae venditae hereditatis) by which the fiduciary heir promised to transfer to the fideicomissarius all the proceeds of the inheritance, whereas the latter undertook to indemnify proportionately the heir for payments made to the creditors of the estate.^[1174] However, this only partly solved the problem as the creditors of the estate who were not bound by the stipulations could still sue the fiduciary heir if the fideicomissarius failed to indemnify the heir or where he was unable to pay the estate's debts.

The complicated legal situation invoked when both the above-mentioned senatus consulta were applicable was resolved by Justinian, who combined the two resolutions in one enactment under the name of the senatus consultum Trebellianum. According to Justinian’s ruling, the fiduciary heir and the fideicomissarius were each held liable for a portion of the estate’s liabilities in proportion to their shares. At the same time, it was recognized that the heir was in every case entitled to retain a quarter of the inheritance. If, however, the heir was not willing to accept the inheritance, he could be forced to do so. He was then required to convey it to the fideicomissarius who acquired both the assets and liabilities of the estate as if he was an heir (heredis loco).^[1177]

The progressive assimilation of fideicommissa and legacies during the classical and post-classical periods was brought to its conclusion in the time of Justinian.^[1178] Since the law now provided that there should be no difference between the two institutions, the legal remedies of the legatee (namely, the rei vindicatio, the actio ex testamento and the actio hypothecaria) also became available to the fideicomissarius.

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