Fiduciary Principles in Roman Law

Abstract

This chapter focuses on fiduciary principles that operate in the Roman law. It first provides an overview of Roman legal institutions and their key features, asking whether an institution involves a fiduciary relationship or otherwise shows fiduciary principles at work. Key institutions in the law of persons or status (patria potestas, tutela or tutorship, cura), contract (fiducia, mandatum), property (“bonitary owner,” dos or dowry, usufruct, peculium), and succession (fideicommissum, foundations or trusts for purposes) which might be thought to involve a fiduciary element are considered. The chapter proceeds by discussing principles of the modern law of trusts or fiduciary law and the extent to which they appear in Roman law, with emphasis on equitable principles and good faith, ownership, fiduciary administration of property, and conflict of interest. Finally, it examines remedies developed by the courts of equity to protect the beneficiary’s interests.