Types of fideicommissa in Roman inheritance law

Abstract

The article analyses the historical process of dividing the original fideicommissum institution into separate types: family fideicommissum, singular fideicommissum and universal fideicommissum. Family fideicommissum appeared in the inheritance law of Ancient Rome due to the legislator’s desire to limit the freedom of disposition of property that a legatee and other members of his family used to have. The aim of such a limitation was to keep the estate within one Roman family. The author concludes that the legal nature of fideicommissum was based on the transfer of the estate’s assets only (and not liabilities) from an heir to a legatee. This led to the gradual unification of bequests and singular fideicommissa in Roman law. The author bases the analysis of peculiarities of universal fideicommissum on its comparison with legatum partitionis. As a result, it is found that there was a fundamental change in the legal nature of universal fideicommissum. A universal fideicommissum was originally based on the singular succession principle, but the Trebellian senate’s decree (senatusconsultum Trebellianum) permitted the transfer of liabilities, which were a part of estate property, from an heir to a legatee as well as assets, thus permitting universal succession. Due to this, the merger of universal fideicommissa with the bequest became impossible and universal fideicommissum retained its independence in the Roman inheritance law. In course of the research, the author uses translations of fragments from the most important monuments of Roman law — the Justinian Novels, which have not been published in Russian before.

Keywords:

fideicommissum, legatee, testament, natural obligation, secret fideicommissum, family fideicommissum, singular fideicommissum, universal fideicommissum, singular succession, universal succession