FIDU´CIA
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.)
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