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FIDU´CIA is a lex dicta or supplementary provision sometimes incorporated in a mancipium or in jure cessio, whereby a party to whom a right is transferred is obliged to transfer it again at some future time or on some condition being fulfilled. This species of lex mancipii or or jure cessionis is called fiducia, because the obligation which it creates is expressly based on the fides of the party to whom the transfer is made (Boeth. in Top. p. 340, Or.: “haec mancipatio fiduciaria nominatur idcirco, quod restituendi fides interponitur” ); fiduciam contrahere is to contract such an obligation; fiducia is also used as equivalent to res fiduciaria, meaning the thing which was the object of a mancipatio or in jure cessio fiduciaria: thus the fiduciarius, or person to whom property is so transferred, is said fiduciam accipere (Liv. 32.38, 2; Cic. Top. 10, § 42). It follows from the fact of the fiduciary transaction being a lex dicta or lex privata, that it derived its legal effect from the nuncupatio in a mancipium, or from being a term of an in jure cessio (cf. Tab. 5.1: “Cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus est.” Fr. Vat. 50: “et mancipationem et in jure cessionem lex XII. Tabularum confirmat” ). The construction of fiducia that it was a separate agreement annexed (adjectum) to a mancipium or in jure cessio, and not an integral part of these forms, cannot be accepted, since the enforcement of a pactum adjectum was subsequent to the Twelve Tables, and no effect was given at any time to a pact annexed to a formal transaction, such as mancipium. It seems, however, to have become a practice after a time to embody the terms of a fiducia in an independent stipulation, and perhaps the well-known Spanish inscription relating to fiducia describes a subsidiary contract of this kind. (C. I. L. ii. No. 5042). A fiduciarius, or party who acquired a right but was subject to a fiducia respecting it, was bound either to reconvey to the transferrer ( “ut remancipetur, in jure cedatur” ), or to convey to a third party, or, in the case of a slave or person in mancipio, the obligation might be that they should be manumitted (ut manumittatur). If he was guilty of a breach of trust in these respects, he was liable to an actio fiduciae, which was an actio bonae fidei (Cic. de Off. 3.1. 5, § 61; ad Fam. 7.12, “ut inter bonos bene agier oportet” ), involving infamia as well as damages for the loss his dishonesty had caused. Cicero enumerates the judicium fiduciae with that of tutelae and societatis as “judicia summae existimationis et paene capitis” (pro Rosc. Com. 6.16), where he is evidently alluding to the consequence of infamia. The actio fiduciae could only be maintained by the party transferring: the right (the fiduciae dans) or his heir, and only the fiduciary (or his heir) was subject to it, not a third party to whom the object of the fiducia was conveyed. The fiduciarius was owner of the res fiduciaria, but he was bound to hold it as if he were an agent of the fiduciae dans. Thus he was liable if he did not take proper care of the res, and he had to account for all profits derived from it (Cic. pro Caecin. 3.7; Top. 17.66; Cod. Just. 4.24, 3); on the other hand, he could claim to be indemnified for his expenses, in maintaining it. In some respects the fiduciae dans was considered to have an interest in the res itself, and not simply a claim against the fiduciarius. If he took possession of the res, he did not commit furtum (Gaius, 3.201). If he kept possession for a certain, time, he could recover the ownership by usu receptio, although he did not fulfil the ordinary conditions of usucapion (Gaius, 2.59). He could bequeath his interest by way of legatum per praeceptionem, according to the opinion of the Sabinians, although jurists of this school maintained that a testator could only bequeath his own property by this form of bequest (Gaius, 2.220); and a testator who conveyed property with a fiducia which he had previously bequeathed, was not considered to have thereby revoked his bequest (Paul. 3.6, 16). Res nec mancipi as well as res mancipi might be res fiduciariae; and when the object for which they were conveyed was attained, it was necessary that they should be re-conveyed by mancipatio or in jure cessio. If there was only a simple re-delivery, the ownership was not recovered except by usucapion. A fiduciary conveyance was entered into either with a friend (cum amico) or with a creditor (cum creditore),--with a friend in order to serve some purpose of family law: thus to enable a woman to escape from the burden of tutela there was a coemptio fiduciae causa (Gaius, 1.114), and in the process of emancipation there was a fiducia that the filiusfamilias should be manumitted by the person qui mancipio accepit. It was common to make a fiducia with a friend in order to secure the safe custody of property (Gaius, 2.60: “quo tutius nostrae res apud eum sint.” Cf. Boeth. in Top. p. 340: “fiduciam--accepit--si [p. 1.859]quis tempus dubium timens amico potentiori fundum mancipet, ut ei, quum tempus, quod suspectum est, praeterierit, reddat” ); and, in fact, this seems to have been the only legal means of making a deposit or a loan of a specific thing according to early law. Fiducia ceased, however, to be used for these purposes when the real contracts of depositum and commodatum were established.

A fiducia was entered into with a creditor for the purpose of mortgaging property to him, the legal estate being conveyed to the mortgagee on the understanding that there should be a re-conveyance when the debt was paid, as in the English common law mortgage. The mortgagor was frequently allowed to remain in possession of the mortgaged property as a kind of tenant at will, and the legal relation thus created, which is called precarium, may have originated in this way. A fiducia might be subject to a condition that the mortgagor should forfeit his right to a re-conveyance, if he failed to pay his debt within a certain time (Cic. pro Flacc. 21, § 51; ad Fam. 13.56;--Cat. de Re Rust. 146, 2). Such condition was probably the earliest kind of lex commissoria (cf. PIGNUS). Fiducia as a form of mortgage continued in use after the forms of pignus and hypotheca were recognised on account of the great security which it gave to the mortgagee. There was frequent mention of it in the writings of the classical jurists, but it has no place in Justinian's legislation, other terms having been substituted for fiducia by the compilers in the passages of the Digest where it would have occurred.

The inscription referred to above is on a bronze tablet, and was found some years ago near the mouth of the Guadalquivir; it contains the terms of a fiduciary mortgage, and is thought to be not later than the second century after Christ (C. I. L. 2.5042; Krüger Krit. Unters. 1870, p. 41 if.; Hübner in Hermes, 3.283 if.). (Zachariae, De Fiducia ; Huschke, Zeitschr. für gesch. Rechtsw. 14.230; Rein, Privatr. 245, 349-351 ; Bachofen, Das röm. Pfandrecht, 1.1.2, 19.4; Dernburg, Das Pfandrecht, 1.2; Voigt, XII. Tafeln, 2.86; Degenkolb, Zeitschr. für Rechtsgesch. 9.117 ff.)

[G.L] [E.A.W]

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