Definition
A Latin term with two distinct legal meanings depending on context.
1. In the law of corporations and charitable institutions: A founder — the person or authority responsible for bringing a legal institution into existence, whether by act of incorporation or by endowment with funds. Medieval and early common law jurisprudence divided this role into two formal subtypes: the fundator incipiens (the incipient or initiating founder, typically the Crown or sovereign authority that granted the charter of incorporation) and the fundator perficiens (the perficient or completing founder, the private donor who endowed the institution with property and funds sufficient to sustain its purpose). The distinction tracked the difference between legal creation and material endowment — a corporation could have a sovereign as its legal originator and a private benefactor as its practical sustainer.
2. In old English law: A founder, caster, or melter of metals. This usage, appearing in Fleta, referred to craftsmen or tradespeople engaged in metallurgical work and carried no corporate or institutional connotation.
Common Confusion
The two definitions of fundator share no substantive overlap and arise from different Latin roots. Bouvier and Burrill both note the distinction explicitly: the corporate-law meaning derives from fundare (to found or establish); the metallurgical meaning derives from fundere (to pour or cast). Researchers encountering the term in historical sources must determine which root is operative before applying any definition. In legal sources after the medieval period, the corporate-law meaning is far more commonly encountered.
Recognized Forms
/SUBTYPES
Fundator incipiens — The incipient founder. The sovereign or state that grants the act of incorporation, bringing the legal entity into existence. This role was associated with the Crown in English law and reflects the principle that corporations could not form without sovereign authority.
Fundator perficiens — The perficient founder. The private individual or entity that endows the institution with property, giving it the material means to operate. This is the founder in the sense most commonly understood today: the benefactor whose contribution gives a charitable or educational institution its practical character and identity.
Why It Matters in Research
This term appears most frequently in English legal sources dealing with the founding and governance of colleges, hospitals, churches, and other charitable corporations — particularly in disputes over visitation rights, dissolution, and the privileges of heirs of founders. The fundator perficiens carried specific legal consequences: heirs of the perficient founder typically retained the right of visitation over the institution and, in some circumstances, the right to reclaim property if the institution failed its founding purpose.
The incipiens/perficiens distinction is significant for researching the constitutional and legal status of early American colleges and charitable institutions, many of which traced their legal existence to royal charters (incipiens) while owing their practical character to private donors (perficiens). Kent's Commentaries at volume 2 page 303 is the primary American secondary source synthesizing this framework, and researchers working in early American corporation law will find it the most accessible entry point.
In historical sources, fundator without qualification may refer to either subtype, requiring contextual analysis. The metallurgical sense is confined almost entirely to medieval English administrative and legal sources such as Fleta and will rarely appear in post-medieval legal research.
Historical Dictionary Support
Black's entry is minimal — a bare cross-reference to founder — offering no analytical value beyond pointing researchers elsewhere. Burrill and Bouvier are substantively identical and together constitute the primary historical dictionary treatment. Both rely on Kent's Commentaries and Fleta as their authoritative sources, and both flag the dual-root etymology as the key to distinguishing the two meanings.
What the historical dictionaries do not address is the practical legal consequence of the incipiens/perficiens distinction in litigation — particularly in visitation disputes, which were a significant category of early English chancery and common law cases involving charitable corporations. Researchers pursuing those questions must move beyond the dictionary entries to treatise sources and case reporters.
Jurisdictional Note
The fundator framework is primarily English in origin and has most direct application in English ecclesiastical, corporate, and charitable law. American courts and commentators, following Kent, adopted the vocabulary principally in discussions of the legal theory of corporate founding, but the incipiens/perficiens distinction had limited practical application in American law, where sovereign incorporation and private endowment were not separated in the same formal way.