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On this page: Fidepromissor – Fides – Fidfcula – Fiducia



be the objects of a fideicommissum, as a particular piece of land, a slave, a garment, piece of silver, or a sum of money ; and the duty of giving it to the fideicommissarius might be imposed either on the heres or on a legatee. In this way a slave also might receive his liberty, and the request to manumit might be addressed either to the heres or the lesratarius. The slave when manumitted was


the libertus of the person who manumitted him, There were many differences between fideicom­missa of single things and legacies. A person about to die intestate might charge his heres with a fideicommissum, whereas a legacy could only be given by a testament, or by a codicil which was confirmed by a proper declaration of the testator in a will ; but a fideicommissum could be given by a simple codicil not so confirmed. A heres insti­tuted by a will might be requested by a codicil, not so confirmed as above, to transfer the whole hereditas, or a part, to a third person. A woman who was prevented by the provisions of the Voconia lex from taking a certain hereditas, might take it as a fideicommissum. The Latini, also, who were prohibited by the Lex Junia from taking hereditates and legacies by direct gift (directo jure) could take by fideicommissa. It was not legal to name a person as heres, and also to name another who after the death of the heres, should become heres ; but it was lawful to request the heres on his death to transfer the whole or a part of the hereditas to another. In this way a testator indirectly exercised a testamentary power over his property for a longer period than the law allowed him to do directly. A man sued for a legacy per formulam ; but he sued for a fideicom­missum before the consul or praetor for fideicom-inissa at Rome, and in the provinces before the praeses. A fideicommissum was valid, if given in the Greek language, but a legacy was not, until a late period. Justinian finally assimilated legacies and singular fideicommissa. [legatum ; Inst. 2. tit. 20. § 3 ; Cod. 6. tit. 43. s. 2.]

It appears that there were no legal means of en­forcing the due discharge of the trust called fidei­commissum till the time of Augustus, who gave the consuls jurisdiction in fideicommissa. In the time of Claudius praetores fideicommissarii were appointed: in the provinces the praesides took cog­nizance of fideicommissa. The consuls still retained their jurisdiction, but only exercised it in impor­tant cases. (Quintil. Inst. iii. 6.) The proceeding was always extra ordinem. (Gains, ii. 228 ; Ulp. Frag. tit. 25. s. 12.) Fideicommissa seem to have been introduced in order to evade the civjl law, ' and to give the hereditas, or a legacy, to a person who was either incapacitated from taking directly, or who could not take as much as the donor wished to give. Gains, when observing that peregrini could take fideicommissa, observes that "this" (the ob­ject of evading the law) " was probably the origin of fideicommissa;" but by a senatus-consultum made in the time of Hadrian, such fideicommissa were claimed .by the fiscus. They are supposed to be the commendationes mortuorum mentioned by Cicero (de Fin. iii. 20). There is the case of Q. Pompeius Rufus (Val. Max. iv. 2. 7), who, being in exile,, was legally incapacitated from taking any thing under the will of a Roman citi­zen, but could claim it from his mother, who was the heres fiduciarius. They were also adopted in the case of gifts to women, in order to evade the


Lex Voconia [LEX voconja] ; and in the case of proscribed~ persons, incertae personae, Latini, peregrini, caelibes, orbi. But the senatus-con­ sultum Pegasianum destroyed the capacity of caelibes and orbi to take fideicommissa, and gave them to those persons mentioned in the will who had children, and in default of such to the popu- lus, as in the case of hereditates and legata. [BoNA caduca.] Municipia could not take as heredes [collegium] ; but by the senatus-con­ sultum Apronianum, which was probably passed in the time of Hadrian, they could take a fidei­ commissa hereditas. (Ulp. Frag. tit. 22. s. 5 ; Plin. Ep. v. 7.) [heres (roman).] (Gains, ii. 247—289 ; Ulp. Frag. tit. 25 : Inst. 2. tit. 23, 24 ; Dig. 36. tit. 1 ; Cod. 6. tit. 49 ; Mackeldey, Lelirbucli, &c., 12th ed. § 726, &c. ; Vangerow, Leitfaden far Pandekten Vorlesunyen, vol. ii. p. 56L) [G. L.]


FIDEPROMISSOR. [intercessio.]

FIDES. [lyra.]

FIDFCULA is said to have been an instru­ment of torture, consisting of a number of strings. According to some modern writers, it was the same as the equuleus, or at all events formed part of it. [equuleus.] The term, however, appears to be applied to any strings, whether forming part of the equuleus or not, by which the limbs or ex­tremities of individuals were tied tightly. (Sueton. Tib. 62, Cal 33 ; Cod. Theod. 9. tit. 35. s. 1 ; Sigonius, De Jud. iii. 17.)

FIDUCIA. 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 s&id ficluciam accipere. (Cic. Top. c. 10.) A man might transfer his property to another for the sake of greater security in time of danger, or for other sufficient reason. (Gains, ii. 60.) The contract of fiducia or pactmn fiduciae also existed in the case of pignus ; and in the case of mancipation. [eman-cipatio.] 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 aii actio fiduciae or fiduciaria, which was an actio bonae fidei. (Cic. de Off. iii. 15, ad Fain. vii. 12 ; ut inter bonos bene agier oportet.) If the trustee was con­demned in the action, the consequence was in-famia. Cicero enumerates the judicium fiduciae with that tutelae and societatis as " judicia stun-mae existimationis et paene capitis" (Cic. pro Ros. Com. c. 6), where he is evidently alluding to the consequence of infamia. (Compare Savigny, System, &c. vol. ii. p. 176.)

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 (pactumfidu- ~ ciae) was inserted in the formula of mancipatio. If no remancipatio took place, but only a simple re-stitutio, usucapio was necessary to restore the Quiri-tarian 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 con -nected with the Commissoria Lex, as we see in Paulus (Sent. Recept. ii. tit. 13), and in Cic. pro Flacco, c. 21, "fiducia commissa," which maybe

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