Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

Fideicommissa

While the Roman will was already very flexible in itself, a device eventually arose to allow it to do even more. This is called the fideicommissum – “entrusting” something to the “faith” of the heir. It involved leaving property to an heir along with instructions to pass some or all of it to other per sons. This device had at least three different uses. It could be used to evade the various restrictions on who could benefit from a will, such as noncitizens, corporate entities (say, your hometown), or (under later law) the childless. It could be used to extend the owner’s control over his property beyond the immediate distribution to the heirs. For instance, he might leave his property to his wife, with the specification that she then leave it back to their child when she dies. In principle, this method could have been used to create permanent control of the property, but in practice the Roman courts did not allow a will to reach further than persons who could be specifically identified at the time of death (roughly, persons living at the time of the will and their children). Finally, and somewhat sur prisingly, it could be used to create what amounts to a partial or informal will. Eventually, it became permissible to leave a stand-alone fideicommissum without a will and have it enforced by the courts. In this case, the estate would technically go to heirs determined by the rules of intestate inheritance, but they would then carry out the fideicommissum by passing on some or all of that property.

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