FEDECOMMESSO (fideicommissum). — This is a disposition mortis causa by which an heir is instituted with the obligation of preserving and transmitting, wholly or in part, the inheritance to a specified person or entity. The heir is called the fiduciary; the person or entity for whom the inheritance is to be preserved and to whom it is to be transmitted is called the fideicommissary.
The institution of the f. dates back to Roman law (Instit. Inst., I, II, tit. 23, de fideicomn. heredit. §2). It was widely applied in the Middle Ages and, after 1200, also as a result of the influence of Spanish rule and legislation. The nobility first, and later the bourgeoisie, made extensive use of it to ensure the preservation of estates and other assets (e.g., shops, industries, etc.) within the family and even within the line of primogeniture.
The principles of liberty, which asserted themselves especially with the French Revolution, gradually led to the abolition of the institution of the f. The Civil Code of 1862, in art. 599, excluded every fideicommissary substitution, whereas the current Code of 1942 restores it exclusively within the following limits: a) the testator may impose upon his son the obligation to preserve and, at his death, return, wholly or in part, the assets constituting the disposable portion, for the benefit of all children born or yet unborn of the instituted heir or for the benefit of a public entity (art. 693); likewise, the testator may impose upon a brother or sister the obligation to preserve and return the assets bequeathed, for the benefit of all children born or yet unborn of them or for the benefit of a public entity (art. 692). The fiduciary heir assumes to some extent the position of a usufructuary, with the enjoyment, free administration, and representation of the assets constituting the trust (art. 693). The inheritance devolves upon the substitute at the death of the instituted heir (art. 696).
Fideicommissary substitution in favor of pious causes is admitted without limitation by canonical legislation (cann. 1513-14), which prescribes that the fiduciary cleric or religious (when the trust is in favor of pious causes) inform the Ordinary, who, as the official guardian of pious dispositions (can. 1515 § 1), shall exercise supervision (can. 1516). In the canonical legal order, fideicommissary substitution may also take place by an inter vivos act.
FEDE e DISCIPLINA (CONFERENZE): V. CONFERENZE PANCRISTIANE.