Cestui Que - History in German and Roman Law

History in German and Roman Law

It is the opinion of William Holdsworth quoting such scholars as Gilbert, Sanders, Blackstone, Spence and Digby, that cestui que in English law had a Roman origin. An analogy exists between cestui que uses and a usufructus (usufruct) or the bequest of a fideicommissum. These all tended to create a feoffement to one person for the use of another. Gilbert writes, (also seen in Blackstone): "that they answer more to the fideicommissum than the usufructus of the civil law." These were transplanted into England from Roman Civil Law about the close of the reign of Edward III of England by means of foreign ecclesiastics who introduced them to evade the Statute of Mortmain. Others argue that the comparison between cestui que and Roman law is merely superficial. The transfer of land for the use of one person for certain purposes to be carried out either in the lifetime or after the death of the person conveying it has its basis in Germanic law. It was popularly held that land could be transferred for the use from one person to another in local custom. The formal English or Saxon law didn't always recognize this custom. The practice was called Salman or Treuhand. "Sala" is German for "transfer". It is related to the Old English "sellen", "to sell".

The earliest appearance of cestui que in the medieval period was the feoffee to uses, which like the Salman, held on account of another. This was called the cestui que use. It was because the feoffor could impose on him many various duties that landowners acquired through his instrumentality the power to do many things with their land. This was a to avoid the rigidity of medieval common law of land and its uses. Germanic law was familiar with the idea that a man who holds property on account of, or to the use of another is bound to fulfill his trust. Frankish formulas from the Merovingian period describe property given to a church "ad opus sancti illius." Mercian books in the ninth century convey land "ad opus monachorum". The Domesday Book refers to geld or money, sac and soc held in "ad opus regus", or in "reginae" or "vicecomitis". The laws of William I of England speak of the sheriff holding money "al os le rei" ("for the use of the king").

Others state that the cestui que use trust was the product of Roman Law. In England it was the invention of ecclesiastics who wanted to escape the Statute of Mortmain. The goal was to obtain a conveyance of an estate to a friendly person or corporation, with the intent that the use of the estate would reside with the original owner.

Pollock and Maitland describe cestui que use as the first step toward the law of agency. They note that the word "use" as it was employed in medieval English law was not from the Latin "usus", but rather from the Latin word "opus", meaning "work". From this came the Old French words "os" or "oes". Although with time the Latin document for conveying land to the use of John would be written "ad opus Johannis" which was interchageable with "ad usum Johannis", or the fuller formula, "ad opus et ad usum", the earliest history suggests the term "use" evolved from "ad opus".