Trusts in Roman Law in the United States

Introduction

It has long been maintained that Roman law (see it) was of minor importance to the development of English law, but with trusts, at least, this is not the case. The public trust doctrine is rooted in ancient Roman law. See also History of Roman Law.

Basics

“According to some trust experts, the concept of the trusts trace back nearly two thousand years to the reign of Emperor Augustus Caesar. At that time, a Roman citizen and his wife, who was not of the Roman Empire, wanted to leave their property to their children, but under Roman law, the children were not allowed to inherit because their mother was not a Roman. To circumvent this law, the Roman left his property through his will to a friend, also a Roman, on his friend;’s promise that he would use the property to provide for the Roman’s children after the Roman’s death.

As it happened, the friend did not keep his promise. He betrayed the trust that the Roman had placed in him and used the property for himself. The Emperor Augustus, shocked at the betrayal, referred the matter to the Roman court for disposition. Prior to this, the use of such a bequest (in trust) had never been formally recognized by the court, but after the emperor’s approval the trust arrangement became so popular that a special court had to be established to answer inquiries and determine the treatment of such cases.

This was one of the earliest recorded forms of a trust, but it contains all the basic ingredients of today’s trusts. The Roman (called the donor or the grantor or the settlor) transferred property (sometimes called the corpus) to his friend (called the trustee), who promised to follow instructions to hold and use the property for the benefit of the children (the beneficiaries).

From its simplest form to the most complex, every trust is based upon the same principles and contains the most basic elements: a settlor, a trustee, some property, and one or more beneficiaries. A living trust is any “inter vivos” trust—meaning “among the living.” A trust created upon the settlor’s death is a testamentary trust.

The trust created by our Roman was a testamentary trust—that is, it was created at his death by instructions contained in his will. In order for the trust to take effect, then, the Roman’s will had to be approved by a court through the probate process. If the Roman had created a living trust and had transferred his property to the trust during his lifetime with instructions for its disposition after his death, there would have been no need for the probate court to make the transfer. The property already in the trust would have avoided probate.” (1)

Fideicommissum

The trust is a product of the Roman Law fiducia. “Although Roman law did not recognize a `trust’ in the same sense as it is used in common law today, it did develop a device – the fideicommissum – which achieved very similar ends. It has remained largely ignored, and yet it is an ideal case study in the evolution of law. As the most versatile institution of Roman inheritance law, it crucially affected the strategies of succession open to testators, and gives insights into a social history of testators’ ambitions and legislative concerns.

Over six centuries the trust expanded at the expense of established legal institutions, and with Justinian’s reforms it finally became dominant”(2)

Notes

Alexander A. Bove, The Complete Book of Wills, Estates and Trusts
The Roman Law of Trusts, David Johnston

Trusts in Roman Law

Trusts in Roman Law in the United States

Introduction

Basics

Fideicommissum

Notes

See Also

Further Reading