Actio fiduciae

from Wikipedia, the free encyclopedia

In ancient Roman law, the actio fiduciae was a (personal) action for the return of a thing transferred to the creditor to secure a claim (dissolution of the trustee function after the claim has been fulfilled). According to today's understanding, the action pursued the termination of a pledge by way of security ( fiducia cum creditore ).

Initial situation: The establishment of the trust required an agreement under the law of obligations and an act of transfer in rem. The debtor (or a third party ) transferred to the obligee of a claim (contractual agreement) by way of the in iure cessio , more often the mancipatio , civil property (transfer act in rem) of a res mancipi . The transfer of ownership was linked to the ancillary agreement ( pactum fiduciae ) that the transfer of ownership would be reversed when the debt from the underlying causal transaction was repaid. The assignment by way of security ( fiducia cum creditore contracta ) served to strengthen the position of creditors, but included a fiduciary purpose. The obligee thus undertook to transfer the security property back to the debtor after the debt was repaid. Only if the debtor failed to pay from the secured transaction could the transfer back be waived.

With the expiry of the claim, the debtor became the actio fiduciae . The conviction was disgraceful (loss of civil honor). The wrongly approached owner was able to fend off "retransfer claims" by means of the actio fiduciae contraria (counterclaim).

Transfer by way of security was still widespread in the classical Roman Empire . It went under with the formal ritual transfer of ownership of the mancipatio and had completely disappeared at the time of the Digest . The transfer by way of security was consequently replaced by the pignus , which did not result in a (temporary) loss of property.

literature

Individual evidence

  1. ↑ a b c Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 76 f.
  2. ^ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 76.
  3. ↑ cf. Gaius : 2, 60.
  4. ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 15 no. 11 (p. 260).
  5. ^ Herbert Hausmaninger, Walter Selb: Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 180.