Beneficium excussionis vel ordinis

C. 8, 40, 28 paved the way for another reform regarding fideiussio. In Novellae 4, 1 we read:

"Si quis igitur crediderit et fideiussorem... accepcrit: is non primum adversus...

fideiussorem... accedat,... sed veniat primum ad eum qui... debitum... contraxir. Et si quidem inde receperit, ab aliis abstineat."

With this enactment¹⁰³ the liability of the surety became subsidiary: the fideiussor could avail himself of a defence (later on called beneficium

® Starting with F.L. Keller, Ueber Litis Contestation und Unheil nach dassischetn Romischem Recht (1827), and Georg Julius Ribbentrop, Zur Lehre von den Correal-Obligationen (1831); cf. further Windscheid/Kipp, § 292, pp. 197 sq. They quote a statement from 1829 ("Es ist... nicht leicht uber irgend einen anderen Hauptpunkt des romischen Rechts die Literatur so dürftig, wie über diesen") and comment, somewhat sarcastically: "Mancher mochte wohl diesen Zustand zuruckwunschen" (Not easily will one find another main problem in Roman law about which the literature is equally scarce; many a one would probably desire the return of this state of affairs).

^IC0 Scherz und Ernst in der Jurisprudenz (13th ed., 1924), p. 8.

ⁿ Jhering, Geist, vol. II 2, p. 324 (as translated by J. Kerr Wylie, Solidarity and Correality (1923), pp. 5 sq.). Cf. also, again, Rudolf von Jhering, Scherz und Ernst, op. cit., note 100, p. 9: "A juristic writing which fundamentally ignores the practical application of its subject! a cunningly constructed watch which is not intended to go!"

¹⁽² For a new version of pandectism, namely exclusive emphasis on doctrinal consistency (even at the expense of extensive reconstruction of the sources), see J. Kerr Wylie, Solidarity and Correality (1923).

~ On its history cf. Schindler, Justinians Haltung zur Klassik, pp.

36 sqq. excussionis vel ordinis)^{^[686]} which lasted until the creditor had brought action against the principal and execution under the resulting judgment had proved to be abortive; if the debtor was absent, the fideiussor could ask the praetor to be granted some time within which to produce him. It is obvious that a regulation such as this had not been conceivable at a time when litis contestatio still had its barring effect: it would have made suretyship practically worthless. Thus, indeed, throughout the classical period and up to the time of Justinian, the debtor and his surety were liable on an equal footing and not the one only if satisfaction could not be obtained from the other:^{^[687]} in other words, the creditor was free to choose whom of the two he wanted to sue first. And yet, this statement has to be qualified to a certain extent: it is correct, as far as the strictly legal side of things was concerned; in actual practice, however, the surety was what he was (arguably) only intended to be, namely a subsidiary debtor. Public policy and well-established business morals required the creditor to approach the debtor first (out of court, obviously) and turn against the surety only as a last resort: "Non enim aliter salvo pudore ad sponsorem venit creditor quam si recipere a debitore non possit."^{^[688]} To sue the surety when the debt was fairly easily obtainable from the "principal" debtor was regarded as offensive and whoever did this could become liable under the actio iniuriarum: not for having behaved improperly towards the surety but for having insulted the "principal" debtor; "[s]i creditor meus, cui paratus sum solvere, in iniuriam meam fideiussores meos interpellaverit, iniuriarum tenetur."^{^[689]} The Romans were somewhat touchy in pecuniary matters, especially as far as their credit worthiness was concerned;^{^[690]} and even though gossip may no longer have been as important in the Augustan metropolis as in the country town of the times before the Punic wars,^{^[691]} ^{^[692] ^[693]} the mere fact that the creditor had, by implication, not considered the debtor to be able to honour his debt was enough seriously to jeopardize the reputation and social status of the latter. Whether animus iniuriandi (i.e.

the intention to embarrass the debtor by proceeding in the way he did) was required on the part of the creditor to make him liable is not entirely clear;^{^[694]} in any event, he had to be careful because condemnation involved infamia^{^[695]} and this, in turn, severely affected his own standing within the community. But even apart from this, a necessity to create legal rules about the order in which "principal" debtor and surety had to be approached seems not to have really arisen in classical law, because suretyship was not primarily regarded as an alternative avenue to obtain satisfaction, but rather as a means to exercise pressure.^{^[696]} ^{^[697] ^[698]} If amicitia demanded that one stood surety for one's friend, then, by the same token, it was the debtor's officium to do everything in his power not to let his friend's liability materialize. Similar considerations applied where the wealthy patronus succoured his clients: their social status being ultimately dependent on his patronage, they must have considered it imperative to avoid any inconvenience to their benefactor. Thus, again, they would have tried their best, without further ado, to bring his liability to an end. Therefore, even where it had become necessary for the creditor to remind either "principal" debtor or surety that the debt had fallen due, the ensuing negotiations between creditor and debtor or between surety and debtor usually resulted in the debtor settling his debt (as long, of course, as the claim against him was well founded and he was able to pay) rather than having to face the consequences of the creditor's taking action against the surety.

<< | >>

↑

Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Beneficium excussionis vel ordinis

More on the topic Beneficium excussionis vel ordinis: