Cato’s De agricultura

Donicum pecuniam attests to a remarkable evolution of the institution of pignus: on a technical level the pledge of invecta et illata is much more elabor­ate than the simple possessory pledge that could be created by giving posses­sion of a valuable object to the creditor.^[407] According to La Rosa this evolution was determined by the need to satisfy the demands of a modest rural econ­omy. The entire estate of tenant-farmers (coloni) consisted of a few tools, ani­mals, and slaves and that was the only collateral they could offer, and they could not arrange for someone to stand as surety for their debts/⁴ The situ­ations dealt with by Cato, however, concern forms of agriculture which were capital intensive and do not represent a ‘modest' rural economy at all. The Catonian pledge existed in a time that Roman agriculture underwent drastic changes and—in many parts of the newly created empire—small farms were replaced by larger agricultural estates devoted to commercial production and owned by absentee elite ‘investment farmers/⁵ This form of agriculture was capital intensive and required that the aristocratic investment farmers pro­vided credit to their tenants or purchasers of olives, grapes, wine, and (the produce of) sheep.

Ancestor of tenant’s pledge of invecta et illata

Cato's pledge templates can be regarded as ancestors of the tenant’s pledge over invecta et illata, which, as we will see later, played a crucial role in the evolution of pignus and hypotheca.^[409] In classical law the tenant’s pledge pre­supposed that the creditor (landlord) and debtor (tenant) had entered into a contract of locatio conductio. The contracts giving rise to the secured obliga­tions in Cato’s pledge templates are, however, regarded by Cato as contracts of sale. In c. 146, for instance, the debtor is presented as a purchaser (emptor) of the olives on the tree,^[410] rather than as a tenant of the olive yard. Also under classical law it would have been possible to sell olives and grapes as future crops.4^[411] The fact that the commercial arrangements recorded in c. 146, c. 147, and c. 148 also allow the purchaser to use the land for a certain period of time in order to produce the oil, and the wine on the land does not in itself exclude the characterization as a true sale. When we look at the ‘sale’ of win­ter pasturage, however, it becomes clear that Cato is also advising on legal arrangements which under later law would be leases of land (locatio conduc­tio): this really is a form of tenancy?^{[412] [413] Cato had modelled his contract tem­plates on the granting of public landTh The ‘emptio venditio’ of public land is unlikely to have been a true sale in the sense of a contract aimed at transfer­ring ownership of the land to the ‘purchaser’.[414] In the second century bc the lease of land and other property was not yet regarded as a form of locatio conductio.[415] The ‘sale’ of winter pasturage is exactly the same as what classical jurists regarded as a lease of land (locatio conductio), so that the pledge recommended by Cato in c.}

In his important study on the private tenancy of farmland De Neeve dis­agrees with the view endorsed by many Romanists that the Catonian pledges are the ancestors of the tenant's pledges, which were later sanctioned by the interdictum Salvianum.^[417] The scope of the interdictum Salvianum was— according to Gai. Inst. 4.147—confined to contracts between a landowner and a colonus, for the use of the land on which the latter—as farmer—conducted his agricultural enterprise. According to De Neeve, the jurists were very pre­cise as to where they used the word colonus: it was only used for a farmer who leased the farm's land (and buildings) from the landowner.^[418] The interdictum Salvianum was intended for rights of pledge securing the debts of coloni and not for the arrangements discussed by Cato?^[419] This is, according to De Neeve, no coincidence. The tenancy of farmland by tenant-farmers (coloni) became economically significant from around 100 bc, many decades after Cato wrote De agricultura. The interdictum Salvianum can be regarded as the law's response to this. The reason why it was precisely here that the law responded in order to protect landowners was that the rented lands were not within their physical control. This was different in case of the contracts discussed by Cato, where the ‘purchasers' or ‘tenants' carried out their activities on lands which were supervised by (or on behalf of) the landowner.^{[420] [421] The olives, grapes, and sheep (c. 146-148, 150) would be situated on the owner's plantation, while winter pasturages (c. 149) would either border the landowner's estate or at least be very close to it. The latter is demonstrated by Cato's mention of the landowner's right to graze his own animals and his right of way on the winter pasturages.51 In these cases it will not have been difficult for the landowner to seize the pledged objects and take recourse against them/2 However, even if none of Cato's contracts would have been within the scope of the interdictum Salvianum, the right of pledge securing these contracts can still be regarded as an ancestor of the tenant's pledge of invecta et illata. Labeo's opinion in D. 20.6.14 confirms this. The words ‘ut invecta importata pignori essent, donec merces tibi soluta aut satisfactum esset in D. 20.6.14 seem to echo De agricultura c. 146: ‘donicum solutum erit aut itasatis datum erit, quae in fundo inlata erunt, pigneri sunto’33 These words must either have been derived from Cato, or at least have a common ancestor. In both cases we are dealing with generic pledges on all present and future property brought on the land, which would terminate upon repayment or the offering of alternative (personal) security.}

Satisfactio

In Lenel’s reconstruction of the formula of the classical actio Serviana, a nega­tive condition is included: ‘that this money has not been paid nor otherwise satisfaction has been given for this claim’.⁵⁴ This ‘satisfaction clause' has ancient origins, which may very well lie in transactional practices. We already come across it in the Catonian pledge templates.'⁵'⁵ Cato’s De agricultura c. 150 provides that the right of pledge shall exist for as long as the creditor has not been satisfied or paid (‘satisfecerit aut solverit’) by the debtor. At the time of the Catonian pledge templates, this satisfactio would take place when a guar­antee (surety) would be executed in favour of the creditor in the form of a sponsio. Satisfaction is even mentioned before payment: the right of pledge shall exist until a formal guarantee has been given by a surety or the debt has been paid. This is an indication that at Cato’s time, personal security in the form of sponsio was still preferred over real security. The harsh rules on the execution against the person (here: the surety), which originally could cost the surety his life or freedom and later his entire estate, would cause a surety to monitor the solvency of the debtor closely. The economic function of monitoring would thus not (exclusively) be performed by the creditor himself but (also) by the surety. Moreover, the fact that someone was prepared to assume the (high) risk of standing surety would send positive signals to cred­itors about the debtor’s economic and ethical qualities/⁶

In later epigraphic sources we also encounter the satisfaction clause. For example, a marble tablet found near Rome in 1885 contains the following words:

Quae in his horreis invecta inlata [erunt pignori erunt horreario, si quis pro pensionib]us satis ei [non fecejritTh ^{[422] [423] [424]}

Whatever shall be introduced and brought in the warehouses shall be pledged to the warehouseman, if he shall not have given satisfaction for the rents.^[425]

In one of his opinions, Labeo confirms the accessory nature of the right of pledge for early classical law (Lab. D. 20.6.14). The tenant's pledge of invecta et illata automatically ceases to exist—without anything like an express release being necessary—when the secured debt is paid or the creditor has otherwise been satisfied. Moreover, it shows that satisfactio consisted of replacing real security (tenant's pledge) with personal security (fideiussio). We find exactly the same construction with Cato's De agricultura, which makes it likely that this was a well-settled transactional practice. For the whole of the classical period the satisfaction clause remained an integral part of the formula of the actio Serviana: we still find it with late classical jurists/^[426] Thus, a direct evolu­tionary line can be drawn between transactional practices from the second century bc and the mature Roman law of the third century ad.

Pignus of res mancipi?

In modern Romanist literature it has been argued that Cato merely gave recommendations on taking real security and expected the parties to use the appropriate legal instruments to give effect to these recommendations.^[427] This leaves open the possibility that the ‘pledges' of c. 149 and 150, which con­cerned res mancipi, would have been in the form of a mancipatio fiduciae causa. It is more likely, however, that at Cato's time pignus stricto sensu (i.e., not including fiducia) was possible in respect of res mancipi. In Plautus's Pseudolus, Calidorus complains to his slave Pseudolus that ‘he can find credit nowhere' and asks his slave for a loan of one drachma just for one day. The slave answers: ‘Hardly, I think, even if I offer myself as a pledge (si me opponam pignori)'⁶¹ The term pignus is here probably not used as a generic term for real security (as in Gai. Inst. 2.60) but appears to designate pignus specifically. In texts from the Digest the expression pignori ponere is relatively often used in order to refer to the granting of a (usually possessory) pledge.

For instance, in Paul. (Alf.) D. 12.6.36 a slave had (without his master's knowledge) lent a plate to someone, who ‘placed it as a pledge' (pignori eam posuit) and then disappeared.^[428] Therefore, it is plausible that by Cato's time, in the second century bc, res mancipi could be charged by way ofpignus. Originally, like in Greek law, pignus may not have entailed that the creditor could directly enforce the pledge against third parties/^[429] It merely meant that the property was encumbered in the sense that the creditor, in case of default by the debtor, could attach the property and take recourse against it as provided in the con­ventio pignoris. The conventio pignoris was a proprietary disposition, origin­ally aimed at making the object of pledge itself exclusively ‘liable' for recourse by the creditor. This is a proprietary effect, in the sense that it is attached to the property itself rather than to the person of the debtor/^[430] It is certainly pos­sible that the conventio pignoris may originally also have had this proprietary effect in respect of res mancipi.^{[431] [432]}

A right of pignus on res mancipi may have put the creditor in a less strong position than under a fiducia cum creditore, in particular where he would have wanted to recover charged res mancipi (e.g., runaway slaves) from third parties in possession. For this reason, in practice creditors would often have preferred a mancipatio by way of fiducia, so that the creditor—as owner— would have had the legis actio sacramento in rem or rei vindicatio at his dis­posal. However, in respect of short-term credit and generically defined collateral (as in c. 149), mancipationes may not have been practical and the creditor would have settled for pignus.

Cato's pledges as ancestor of hypotheca

The Catonian pledges can be characterized as a hybrid institution with pos­sessory and non-possessory elements/'' A common characteristic with a non- possessory pledge is that the debtor had physical control over the pledged assets and could continue to use them (on the creditor's estate). At the same time the pledged assets were to some extent also under the control of the creditor (landowner), in the sense that they were situated on land or in buildings which he owned and possessed. De Neeve has pointed out that a difference between the tenant's pledges of the classical period and the Catonian pledges is that in the latter case, the landowner or his manager would still be present on the estate.^[433] This would make the possessory elem­ents of the Catonian pledges stronger than those of the tenant's pledges of classical law. Moreover, unlike a pure non-possessory pledge (hypotheca), this form of pledge was not created nuda conventione but required that the pledged assets were brought into the estate/^[434] Although the ‘primitive phase' of the traditio, with its immediate transfer of possession to the creditor, was over­come, this could be regarded as equivalent to a datio pignoris.^[435] The inductio on the estate would have conferred possession upon the creditor, so that he could have used the possessory interdicts against persons threatening to interfere with the pledged assets. It would also have conferred ownership upon the creditor where the debtor would fail to discharge the secured debt. Likewise, Kaser suggests that the deportation clause can be regarded as a ‘fiktive traditio ex iusta causa’.^{[436] [437] As soon as a pledged object was removed from the land its ownership would transfer to the landowner, as if it had been delivered to him. In respect of res nec mancipi, such as olives (c. 146), grapes (c. 147), and wine (c. 148), such traditio would confer full ownership upon the creditor. In rela­tion to res mancipi, however, a deportation clause acting as a ‘fictitious traditio' could not have this effect because here the transfer of full (quiritarian) owner­ship would require a mancipatio or in iure cessio. This could explain why Cato does not include a deportation clause in respect of the res mancipi pledged in c. 149 (cattle and slaves) and c. 150 (slave)/1}

4.4