Fiducia

Fiducia was the earliest form of real security known to the Romans. Derived from the ius civile, it prevailed during the republican and early imperial periods.

Fiducia came to the fore when the debtor or a third person transferred ownership of a thing by mancipatio or in iure cessio to the creditor, subject to an agreement (pactum fiduciae) that when the debt was discharged the creditor would reconvey the thing to the original owner.^[542] Although the creditor acquired ownership of the property, he could not use or alienate it in the meantime unless the parties had agreed otherwise.

Originally, the pactum fiduciae was not enforceable but based solely on the transferor’s trust (fides, fiducia) in the honesty of the creditor. Fairly early, however, the debtor was granted a personal action termed the actio fiduciae whereby he could compel the creditor to return the property and to pay compensation for any damage the latter may have caused to it by his fraudulent or negligent conduct.^[544] The counterpart of this action was the actio fiduciae contraria, which the creditor could institute against the debtor for the recovery of any necessary expenses he had incurred in respect of the property in question.

If the debt was not paid by the agreed date, the creditor originally simply retained ownership of the thing but without the limitations of the pactum fiduciae. As the law evolved, however, it became customary for the parties to agree that the object should be sold and the debt paid out of the proceeds of such sale (this agreement was known as pactum de distrahendo). In time, an explicit agreement to that effect was no longer deemed necessary since it was taken for granted that the creditor was in such a case entitled to sell the property in question.

With the abandonment of the mancipatio and in iure cessio procedures in the later imperial era, fiducia as a form of security fell into disuse and Justinian’s commissioners expunged all reference to it from the classical texts cited in the Digest.