By Neal Skinner
‘Fiduciam’ is Latin for “mortgagee” and the accusative singular of fiducia, which has as its root fido, which means “I trust/I rely upon”.
Fiducia cum creditore (which should not be confused with fiducia cum amico) was one of the earliest types of Roman mortgage, in essence the property would have been transferred to by the borrower to the lender on trust as security in order to demonstrate good faith (bona fides). Today we might use the term bona fide to mean “genuine”, however a more technical translation might be “reliable/reliability”.
The fiducia cum creditore created a system of mutual trust between borrower and lender because:
- under the pactum fiduciae the lender agreed to return the property when the debt was satisfied;
- the lender had possession of the property, their ownership of which would be perfected if the loan was not repaid; and
- there was a further clause requiring the sale of the property in the event of default from which the lender, as trustee, would deduct the debt from the proceeds of sale, so that the lender would not be able to keep property with a value of more than the debt owed.
For this to work there had to be a trustworthy borrower and a trustworthy lender.
So successful was fiducia cum creditore that despite the advent of pignus (a “pledge”) it not only survived until the late Roman Empire, but it has more or less survived into the modern Dutch law, as bewind, and German law, as treuhand, and in 2007 fiducie was reintroduced into the French Civil Code in a form which require the property to be held by an independent trustee; Fiduciam sometimes uses fiducie when lending against security in France .
This concept of fides or “trustworthiness”, “faithfulness”, “confidence” (which itself derives from the Latin for “with faith/faithfulness”), “reliability” or “credibility”, was so essential to Roman law that it became a principle virtue of the Roman moral code (the mos maiorum/“ancestral custom”) and deified into a goddess with a temple on the Capitoline Hill, near the Temple of Jupiter right in the spiritual centre of the ancient city between the Forum and the Field of Mars. Fiduciam seeks to embed this virtue right at the very core of who we are and what we do, right in the DNA of the company. A reliable borrower will always find in us a reliable lender with whom they can deal with consistently from one transaction to the next.