Fideicommissa

The fideicommissum was one of the most popular legal institutions in ancient Roman Law for several centuries. It is the conjunction of the Latin words fides (trust) and committere (to commit), and thus denotes that something is committed to one's trust.

This fragment dates to the reign of Caesar Augustus, who first decreed certain requirements for the institution of the fideicommissum. The institution itself was first mentioned in 200 BC by Terence in Andria, 290–98: "tuae mando fide".

It functioned thus: the testator nominated an heir to act as fiduciarius, entrusted with devising the inheritance to a beneficiary denominated the "fideicommisarius".

The fideicommissum enabled the heres to be left with the desire of the testator to devise his estate to the proscripti, and the heres would execute the transfer to them.

Institutes, 2.23.1 indicates that Augustus instituted the fideicommissum as legally binding by favouring it in individual cases. Thus its acceptance was directly based on Emperor’s Acts, but even previous to this the fideicommissum was always enforceable. The true reason for it lies in the nature of the institution itself. Personal security in Rome was much more important than it is today, primarily because the Romans more greatly valued the duties of friendship. Therefore certain legal institutions were simply premised on bona fides, e. g. the tutela, societas, and depositum, which did not decrease but rather reinforced their security. Breach of a fiduciary agreement led inevitably to being infamis, which meant lifetime incapacity of making any commercial actions. This threat was sufficient force to guarantee that the fiduciaries would satisfy their obligations. Being a matter of honores, consideration was not required.

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