FIDUCIA CAUSA І ВІДНОСИНИ INTUITU PERSONAE У РИМСЬКОМУ І СУЧАСНОМУ ПРАВІ

The article examines the Roman law construct of fiducia causa and its relationship to intuitu personae relationships in both Roman and contemporary law. It critically reassesses the widespread modern use of terms such as “fiduciary relations”, “fiduciary contract” and “fiduciary agreement”, arguing that Roman law did not know a distinct “contract of fiducia” but rather a trust‑based legal ground (iusta causa fiduciae) underlying specific property‑obligation structures such as fiducia cum amico and fiducia cum creditore. Drawing on classical sources (in particular Gaius 2, 59), the author shows that fiducia causa combined the acquisition by the fiduciary of full real rights (erga omnes) through mancipatio or in iure cessio with a corresponding duty to reconvey the thing to the fiduciant when certain conditions were met; this duty could not be derived from conditional ownership and therefore rested on fides (trust) and was protected by the actio fiduciae. The article demonstrates that this reciprocity of trust within fiducia causa became one of the sources of the bona fides principle in the law of contract, which later extended to civil obligations in general. In contrast, the evolution of fiducia cum creditore (via the notion of bonitary ownership) contributed to the development of the continental idea of fiduciary ownership, exemplified by the German Treuhand. In contrast, a separate category of intuitu personae relationships is analyzed, in which the decisive element is not so much trust as the irreplaceability of a specific person by virtue of their physical, intellectual‑volitional, moral or other personal characteristics. Such relationships include marriage, guardianship, employment, certain real rights (usufruct, rights of use and habitation), pre‑emptive rights, and a range of contractual obligations (simple partnership, contracts for work and services, agency, insurance), where rights and duties do not pass to successors and substitution of a party or assignment of rights is generally prohibited without consent. The author stresses that not all intuitu personae relations are inherently trust‑based, but identifies a specific subgroup of “personal‑trust” relationships in which loss of trust, alongside the personal character of the parties, may independently justify termination of the contract; the mandate (agency) contract, which either party may terminate at any time, is given as a key example. The article concludes that Roman fiducia causa, like many Roman legal concepts, was a catalyst for the development of ideas of trust and good faith. In contrast, modern intuitu personae relations follow a related yet distinct line of development centred on the personal qualities of the parties and on the non‑transferability and inalienability of rights exercised within such relationships.