Beneficium cedendarum actionum

The triplet of privileges available to the surety was completed by the so-called beneficium cedendarum actionum. It had classical roots, but was first shaped into a general right by Justinian.

(a) The problem of the surety's right of recourse against the main debtor

Such a right of recourse against the principal debtor had always existed with regard to sponsio: according to a lex Publilia (dating from about the 4th/3rd century B.C.), the sponsor could avail himself of an actio depensi if he had not been reimbursed within six months.^[703] This liability of the debtor towards the sponsor, incidentally, had not been introduced by the lex Publilia.^[704] Sponsio was one of the early "liability transactions" by means of which the pledge-like power of seizure, which arose as a consequence of wrongful acts, could be created by the parties.^[705] Where a third party had released the debtor from the creditor's power, the formal solutio per aes et libram originally^[706] effected a transfer of the creditor's power over the debtor to the third party, in return for payment (depensum — from "dependere", "to weigh out") of the ransom. This liability under the third party's recourse, arising from the transfer of power, was at first immediately executable; later on, an action was introduced which had to be brought first, so as to allow a court to go into the matter and examine possible defences of the debtor before manus iniectio could take place.^[707] This was the actio depensi.^[708] The purpose of the lex Publilia, in the days when recourse could be had by the sponsor without prior lawsuit and judgment, had been to alleviate his position by granting a period of six months within which to satisfy the claim of his new creditor.^[709]

In the case of fideiussio,^[710] the actio depensi did not apply.

the principal debtor that an avenue for recourse did not exist.^[714] Nevertheless, the classical lawyers conceived of another possibility enabling the fideiussor to secure his position as far as his right of recourse was concerned: he had to pay only once the creditor had transferred to him, by way of procuratio in rem suam, his own claim against the debtor.^[715] The surety could then use the creditor's old claim for reimbursement purposes.

One might ask what advantage there was for the surety in acquiring this additional action. Indeed, under the actiones mandati contraria and negotiorum gestorum contraria, he could claim not only the amount of the debt he had paid but also any other loss or expense incurred by him as a result of the debtor not having met his obligation—and this was not possible if he used the creditor's claim that had been ceded to him. But then this latter claim was independent of whatever internal relationship might have existed between the principal debtor and the surety and it was available even where the requirements of the actions arising from mandate or negotiorum gestio did not exist, or (especially) where they could not be proved (or were difficult to prove).

(b) The construction of the beneficium cedendarum actionum

There was, however, one particular difficulty as far as this "cession" of the creditor's right was concerned. Once the surety had paid, not only his own but also the principal debtor's obligation was discharged. Consequently, the creditor, having obtained full satisfaction, no longer had any right to cede; to effect this cession before payment was made did not obviate the problem, for payment still extinguished the obligation. How, therefore, could the surety assert the creditor's right when this had ceased to exist?^[717] The answer of the Roman jurists can be found in texts such as Paul. D. 46, 1, 36:

"Cum is qui et reum et fideiussores habens ab uno ex fideiussoribus accepta pecunia praestat actiones, poterit quidem dici nullas iam esse, cum suum perceperit et perceptione omnes liberati sunt, scd non ita est: non cnini in solutum accipit, scd quodammodo nomen debitoris vendidit."

The whole device is treated as a contract of sale, where the surety purchases the creditor's action rather than discharges his obligation. By how far that misses the psychological realities of the situation hardly needs to be stressed; the fiction has, accordingly, been severely criticized.^{[718] [719] [720] Yet, to object to the unrealistic nature of the argument does not seem entirely fair; for the characteristic feature of a fiction is that it deals with a particular set of facts as if a different set of facts were at issue.[721] Also, the Roman lawyers always seem to have been aware of the fictitious nature of this purchase contract[722] and were not led to inappropriate consequences and distortions.[723] As far as the development of recourse devices is concerned, the argument certainly played a very useful role.[724] In fact, it seems to have been extended in the course of time.[725] At first, a specific agreement concerning the cession between surety and creditor was probably necessary (only the interpretation of this agreement as a contract of sale was fictitious), and this agreement, of course,[726] had to be made before solutio had taken place.[727] We find other texts, however, where no such time limit was acknowledged; Paul.}