From Fideicommissum to Trust: Estate between unity and segregation
From the French Revolution to modern estate planning: how the law first abolished restrictions on wealth and then rediscovered the value of separate estates.
Property as an expression of freedom
When the Napoleonic Civil Code came into force in 1804, one of the most profound transformations concerned the relationship between the individual and his assets.
For centuries, in Ancien Régime Europe, a significant portion of real estate wealth was subject to restrictions designed to preserve it within families, often for many generations. Owners were not necessarily free to dispose of their assets: they could be required to safeguard them and pass them on to descendants according to rules established long ago.
The French Revolution and the subsequent Napoleonic codification helped to overturn this conception.
Property was to belong to the individual, not to the dynasty. Goods had to be able to circulate, be sold, be used in economic activity, and be accountable for their owner's obligations.
On these premises, one of the fundamental constructions of modern civil law was consolidated: the principle of the unity of assets , understood as the universality of economic relationships attributable to a person.
Yet, more than two centuries later, the evolution of law also seems to be taking a different direction.
Trusts, earmarked estates, and asset segregation tools now allow, within certain limits, the separation of certain assets from the remaining assets and subjecting them to specific rules.
This is an apparent paradox: contemporary law once again admits the restricted destination of wealth that modernity had sought to overcome.
To understand the reasons, we need to go back to the historical origins of the problem.
1. The end of the Ancien Régime: from ancestral wealth to individual property
In European society before the French Revolution, landed property was not just an economic resource. It was also a tool for maintaining social and political power.
The continuity of great aristocratic families depended on the ability to preserve the integrity of their patrimonies over time.
Two institutions in particular contributed to achieving this goal: the trust and the entail .
The fideicommissum, in its inheritance forms developed by common law, allowed assets to be assigned to a person, imposing the obligation to preserve them and pass them on to subsequent beneficiaries. The estate could thus remain tied up for multiple generations, removed in whole or in part from the free disposal of individual owners.
The mayoralty pursued a complementary objective: to avoid the fragmentation of the family estate through its privileged transmission, generally to the firstborn.
The logic was clear. Wealth belonged economically to the family and its continuity, even before it belonged to the individual.
This model, however, came into conflict with the needs of the emerging bourgeois society.
Property burdened by inheritance restrictions could hardly be sold, used as collateral, or transferred according to market opportunities. Preserving family wealth risked becoming financially immobilized.
French revolutionary legislation therefore intervened against inheritance privileges and in favor of equality between heirs.
The Civil Code of 1804 consolidated this transformation. Article 896 established, as a general rule, the prohibition of substitutions that required the heir or legatee to retain assets for return to a subsequent beneficiary.
At the same time, the inheritance law promoted equality among children and limited the possibility of perpetuating patrimonial concentrations through testamentary provisions.
The break, however, was neither absolute nor definitive. Napoleon himself reintroduced in 1808 specific entailments linked to the new imperial nobility, demonstrating how difficult it was to completely eliminate the political and dynastic function of property.
However, one principle that would characterize legal modernity remained established: wealth had to be freed from status constraints and made available for economic circulation.
2. The modern invention of unique heritage
The transformation of ownership was accompanied by a different conception of heritage.
In the medieval world, the relationship between person and property could be articulated in a variety of legal situations.
The tradition of divided dominion , for example, distinguished between direct dominion and useful dominion, allowing the coexistence of different prerogatives on the same land.
Modern law instead tried to reduce property to a unitary figure.
Article 544 of the Napoleonic Code described it as the right to enjoy and dispose of things in the most absolute manner, within the limits established by law.
But the most significant transformation concerned the heritage as a whole.
In the 19th century, French jurists Charles Aubry and Charles Rau systematically developed the theory of patrimony as a legal universality inextricably linked to personality.
According to this approach, each person is the owner of an estate and, in principle, of only one.
The estate includes not only the economically valuable assets and rights, but also the obligations that weigh on the owner.
Assets and liabilities thus constitute two components of the same legal reality.
This construction, although not expressly formulated by the Napoleonic Code in its theoretical completeness, reflected some of its fundamental principles and became one of the pillars of the continental civil law tradition.
In Italy, its legacy is still recognized in Article 2740 of the Civil Code, according to which the debtor is liable for his obligations with all present and future assets.
The rule has a specific economic justification.
If a person can freely acquire goods, contract obligations and participate in trade, his assets must also constitute the general guarantee of creditors.
Patrimonial freedom corresponds to patrimonial responsibility.
Inheritance thus ceases to be primarily a tool for preserving the lineage and becomes the center of the individual's economic responsibility.
3. Roman Roots: An Ancient Principle and Its Exceptions
This concept did not arise entirely with the nineteenth-century codification.
Roman law had already developed fundamental categories for understanding patrimony as a complex of legal relationships referable to a subject.
The notions of bona , patrimonium and hereditas progressively contributed to the formation of the idea of patrimonial universality.
The universal succession of the heir, who took over the deceased's transmissible legal relationships, also represented an essential antecedent of the subsequent civil law system.
However, it would be inappropriate to completely identify classical Roman law with the modern theory of the single patrimony. The latter was the result of a later doctrinal development.
Roman tradition also knew instruments capable of assigning specific inheritance destinations to assets.
Among these, the fideicommissum takes on special importance.
Originally, the Roman fideicommissum allowed the testator to entrust an heir or other beneficiary with the task of transferring certain assets to a third party.
Over the course of the evolution of Roman law, the mechanism took on more complex configurations, including forms aimed at preserving assets within a family.
A particularly significant episode emerges from Justinian's Novella 159, promulgated in 555 AD.
The provision addressed a dispute relating to real estate that a testator had wanted to keep in his family in perpetuity, prohibiting its alienation.
Justinian, in resolving the case, also intervened on the temporal scope of such constraints, recognizing the limit of four generations.
The historical importance of the decision lies in the attempt to balance two conflicting interests: the founder's desire to preserve the family estate and the need not to indefinitely subject successors to the decisions of their ancestors.
The problem, therefore, was already present in late Roman law.
Subsequent European common law extensively developed the mechanisms of fideicommissary substitution, eventually consolidating particularly long-lasting dynastic bonds in certain contexts.
What in the Roman world had constituted an instrument of succession to be regulated became, in some experiences of aristocratic Europe, a means of structural conservation of family wealth.
Modern codification reacted precisely against these results.
But while continental Europe was moving towards unified ownership, another legal tradition was following a different path.
4. The English Way: From the Distinction between Law and Equity to the Trust
English law did not undergo a transformation comparable to the Napoleonic codification.
Its evolution was marked by the coexistence of Common Law and Equity , that is, a set of principles and remedies developed historically through the jurisdiction of the Chancellor.
From this experience one of the most characteristic institutions of Anglo-Saxon law was born: the trust .
Its origins are generally traced back to medieval uses .
Through use , a person could formally transfer an asset to another, so that the latter could hold and administer it in the interest of a beneficiary.
The system allowed for a distinction between formal legal ownership and economic enjoyment of the asset.
From this evolution comes the traditional English distinction between legal ownership and equitable interest .
In a modern trust, the trustee owns the assets according to the applicable rules, but is required to administer them in the interests of the beneficiaries or to pursue the purpose established by the settlor.
According to the trust structure, the beneficiary has legal positions protected by equity, which do not necessarily coincide with full ownership under civil law.
It is interesting to note the functional similarity with the trust.
In both cases, a person can dispose of assets for the benefit of others, even after his or her death.
However, it would be incorrect to consider the trust a simple historical continuation of the Roman fideicommissum : its origins are autonomous and the relationship between the two institutions remains the subject of historical-comparative debate.
The decisive difference concerns above all the economic function.
While the dynastic trust often tended to preserve certain assets in their original identity, the trust can allow for active and dynamic management of the estate.
The assets may be sold, reinvested, or replaced, in accordance with the rules of the founding act and applicable law.
What must remain stable is not the individual asset, but the purpose for which the assets are intended.
The bond no longer serves only to conserve wealth: it can serve to organize its administration, transformation and transmission.
5. Asset segregation: a challenge to the principle of unity
The most innovative aspect of the trust, from the point of view of civil law tradition, is represented by the segregation of assets.
Assets validly established in trust form a separate fund from the trustee's personal assets.
The separation means, under the terms provided by applicable law, that the trustee's personal creditors cannot be satisfied from such assets and that they are not involved in his personal succession or in the events of his insolvency.
When the transfer to the trust is effective and legally valid, those assets no longer belong to the settlor's personal estate.
The positions of the beneficiaries also remain governed by the specific structure of the trust.
However, this does not mean absolute immunity from creditors' claims.
Segregation does not prevent the protection of those who have suffered damage from fraudulent or otherwise contestable transfers. Furthermore, it cannot be used to circumvent mandatory inheritance, tax, or insolvency regulations.
The beneficiaries' rights may, in turn, be subject to challenges under applicable law and the nature of the positions granted.
The trust, therefore, does not constitute a tool for indiscriminately removing assets from patrimonial liability.
Rather, it represents a different way of organizing the ownership, administration, and allocation of wealth.
And it is precisely this aspect that calls into question the idea that every asset must necessarily participate, without distinction, in the same general patrimonial guarantee.
The law recognizes that some assets may be subject to a specific legal regime, depending on the interests they are called upon to satisfy.
6. The recognition of trusts in Italy and the new patrimonial pluralism
The encounter between trusts and continental legal systems marked an important phase in the evolution of property law.
A decisive step was represented by the Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition.
Italy ratified the Convention with Law No. 364 of 1989, which entered into force on 1 January 1992.
The Convention did not introduce a complete, autonomous Italian model of trust, but it established rules for identifying the applicable law and recognizing trusts that meet the required conditions.
Article 2 identifies, among the fundamental characteristics of the institution, the existence of a fund distinct from the trustee's personal assets.
Article 11 regulates the effects of recognition, while Article 15 preserves the application of certain mandatory rules, including those relating to inheritance rights and the protection of creditors.
The Italian legal system has also seen a progressive diffusion of instruments for the separation and allocation of assets.
Consider the equity fund, the earmarked assets of joint-stock companies, and the earmarking deeds governed by Article 2645-ter of the Civil Code.
These are different institutions, with their own legal conditions and regimes, but which share the possibility of assigning certain assets a regulation distinct from the ordinary one.
Article 2740 of the Civil Code, moreover, allows for limitations on patrimonial liability in cases established by law.
The principle of the unity of assets has therefore not disappeared: it remains the general rule, but coexists with a plurality of special regimes.
This evolution takes on particular importance in family and international wealth planning.
Protecting vulnerable individuals, ensuring the continuity of family businesses, managing assets spread across multiple countries, and organizing generational transitions may require more complex tools than simply assigning individual ownership.
In such situations, the problem is not only to establish who owns certain assets, but also who should administer them, according to which rules, in whose interests and within what time limits .
Contemporary estate planning thus tends to increasingly clearly distinguish between ownership, management, enjoyment, and the destination of wealth.
Conclusions.
The return of the patrimonial destination
The history of European property law seems to follow a circular trajectory.
For centuries, wealth has been tied to the continuity of families and the preservation of social structures.
The French Revolution and the nineteenth-century codification helped to free it from these constraints, affirming individual property, the economic circulation of goods and the patrimonial responsibility of the owner.
Today, through trusts and other instruments for the allocation of assets, the law once again allows certain assets to be separated and subjected to specific rules.
But the meaning of this separation has profoundly changed.
The dynastic trust primarily protected the permanence of wealth within the family; the contemporary trust can protect the continuity of a function, a project, or an interest.
The goal is no longer necessarily to prevent the heritage from changing, but to allow it to evolve without losing the purpose for which it was organized.
We are therefore not faced with a return to the feudal system, nor a complete renunciation of the modern principle of patrimonial responsibility.
Rather, we are witnessing the affirmation of a legal pluralism in which individual property continues to represent the general model, but no longer exhausts all possible forms of organizing wealth.
The challenge of contemporary property law is to find a balance between freedom of disposal, creditor protection, family interests, and economic continuity.
Ultimately, it is the same problem that Justinian faced almost fifteen hundred years ago: to what extent can a person's will govern the fate of his assets beyond his life?
The modern response no longer consists in indefinitely tying up heritage, but in building rules capable of combining continuity, responsibility, and adaptation.
It is in this balance that one of the most important functions of modern asset governance lies.
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About the Author
Edoardo Tamagnone is a lawyer and partner at the law firm Tamagnone Di Marco Avvocati Associati . He focuses on international taxation, investment structures, and wealth planning for investors, family offices, and businesses with cross-border operations.
He works between Turin and international contexts, focusing on the intersection of law, economics, and global capital.
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