On the Legal Protection of fiducia in ius civile

The historical development of the Roman law of securities was definitely changed in the course of the 4th Century BC with the enactment of Lex Poetelia Papiria de nexis, turning from the personal security, nexum, and consequential execution, to the real security, with fiducia as its first form. Formal conveyance of the ownership, and the elements of its restriction, in connection with the related institutes in the Family Law and the Law of Wills, despite the scarce evidence for the age of ius civile, point to its archaic origin. The object of this article is to examine available sources, indices, and the use of formal “fidi fiduciae” clause, concluding that in the scope of Leges duodecim tabularum, legal confirmation of fiducia existed in Tab. VI, I. Resulting from that conclusion follows the question of the legal protection of fiducia. Even though the prevailing opinion denies the possibility that fiducia became actionable before the introduction of the formulary process, its incorporation in the nuncupatio, and formal obligation on remancipatio, suggest certain form of legal protection. In author’s view, this protection did not have to be realized through specific legis actio, but accepting the formal part of Kaser’s theory of “Relatives Eigentum”, with “stronger” causa vindicandi, mancipio dans, after the purpose was fulfilled, would succeed in the process legis actio sacramento in rem as a result of his restored, conditional ownership