Consumptive, Productive, and Secured Credit
The majority of texts in the Digest and Codex do not provide us much context (if any at all) about the identity of the creditor and debtor, the purpose of the
4 3 Imperial family: TPSulp 45, 51 and 52 (= file C.
Novius Eunus); TPSulp 67, 68, 94 and 95. Senatorial class: TPSulp 54, 73 and 109.44 Camodeca 2003: 86-7. See also Rathbone and Temin 2008: 388.
45 On imperial slaves in the archive of the Sulpicii, see Lerouxel 2016: 220-1, 230-2.
46 Lerouxel 2016: 216-7.
47 Lerouxel 2016: 224. However, the money received from the imperial slave had to be repaid already after one month and ten days, so this may very well have concerned a short-term cash deposit for reasons other than funding the Sulpicii bank. Jones (2006: 65) considers it likely that the cash was deposited in order to pay shippers and merchants of overseas goods destined for the imperial household.
48 For example, TPSulp 51, 52, and 55.
secured debt, or the nature of the collateral. They refer to the pledged objects in neutral terms, such as ‘thing(s)' (res),[287] ‘pledges' (pignora) and/or ‘hypothecs' (hypothecae),[288] or ‘charged object' (res obligata).[289] Creditors and debtors are usually referred to as debitor and creditor and the secured debt (if mentioned at all) with words such as ‘money' (pecunia),[290] [291] [292] [293] [294] ‘principal' (sors)/3 and ‘indebtedness' (debitum).54 I would hypothesize, however, that in the great majority of texts in which these words are used, the secured debts arose under loan agreements, certainly where the same text also refers to interest (usuris). In some texts we find more details about the nature of the collateral. In addition to texts on generic pledges (invecta et illata, grex, taberna) and maritime loans, we have a small number of texts on other objects, such as leather bags (Scaev. D. 13.7.43.1), marble plates (Scaev. D. 20.4.21.1), and precious metals and minerals (e.g., Scaev. D. 32.33.2). There are many texts in the Digest and Codex which expressly state that the pledged objects are land, buildings, or slaves. From most texts it cannot be deduced whether the acquisition of these valuable objects was financed by the loans they secured, but there are some interesting exceptions. We have literary evidence of secured credit granted by professional and non-professional lenders (including the imperial treasury), ranging from small short-term consumptive loans to large long-term productive ones.55 Consumptive credit The hypothesis of Finley is that, as in ancient Greece, there was not much productive credit in Rome. Money was borrowed for consumptive rather than for commercial purposes?6 To be sure, there is plenty of evidence in the legal and epigraphic sources on consumer credit, often secured by pledges of jewellery, precious metals, or valuable cloth(es). Literary texts illustrate that taking up consumptive credit from bankers against collateral was a vital part of the imperial Roman economy.[295] In Pro P. Sestio, Cicero contemptuously refers to a fellow citizen whose ‘books were even often pledged for wine’/[296] In one of his epigrams Martial ridicules someone who pledged his ring to a banker for a small loan to finance a dinner/[297] That these literary texts reflect reality is shown by graffiti from Pompeii. In the house of A. Granius Romanus there are graffiti recording loans for which jewellery and clothes were pledged to the female pawnbroker Faustilla. One of the graffiti reads: CIL IV, 8203 Idibus Iul(i)is inaures pos(i)tas ad Faustilla(m) pro (denariis) II usura(m) deduxit aeris a(ssem) ex sum(ma) XXX. On the Ides of July gold earrings were placed with Faustilla; for two denarii she has deducted one copper as from a total of 30. This inscription states that the interest is ‘deducted' from the principal sum, which appears to refer to the practice of charging interest by deducting it from the money actually paid out by way of mutuum.[298] For another loan by the same Faustilla, with a principal amount of 50 denarii, a traveller’s cloak (paenula) and a small cloak (palliolum) were pledged. Productive credit There is much evidence in the legal sources of productive credit as well, even if one only mainly looks (as I have done) to the evidence of secured credit/0 Not only did the Romans take over the Greek maritime loan: in the archive of the Sulpicii and in the Digest we encounter secured credit granted to grain merchants, marble dealers, cloth merchants, oil sellers, and shipowners.71 There are strong indications that a significant part of the loans in the Sulpicii archive were productive in the sense that they facilitated production and commerce.72 This is what one would expect in case of bankers who were active in the commercial hub that was Puteoli in the first century ad. In particular, the loans to grain traders, secured by a pledge on wheat and other foodstuffs (TPSulp 51, 52, and 79) and the loan to (presumably) a clothes merchant, secured by a pledge of precious cloth or clothing (‘purpuras laconicas’: TPSulp 83 and 84) must have involved productive creditTh There are also testationes in the archive that appear to concern the auction of slaves who were charged (fiducia) in order to secure productive loans to slave traders.[302] In all these cases, productive credit was secured by real security over the type of assets which the borrower used for his business. The same pattern can be detected in many examples of productive credit in the Digest. One example of secured productive credit is Scaev. D. 20.1.34 pr., concerning a pledge of the floating stock of a shop (taberna). Although the purpose of the secured credit is not mentioned, this is likely to have been to finance the purchase of new merchandise/5 In another text from Scaevola (D. 13.7.43.1) the grain merchant Titius borrowed money from Gaius Seius against a pledge of leather bags: again the purpose of the loan is likely to have been the purchase of new grain. In D. 14.5.8 Paul discusses the liability of a master for certain acts of a slave who had been appointed in order to ‘provide loans and to accept pledges^6 and who seems to have been the (sole) manager of a bank financing the grain tradeTh Ulp. D. 14.3.13 pr. is not concerned with secured credit. This text does, however, demonstrate how the master's liability for money borrowed by his slave, who was authorized to manage an olive oil trade in Arles, could depend on the productive nature of the loan. In particular, where it could not be proven by the lender that the slave had also been expressly authorized to take up loans, the master could still be liable if it could be demonstrated that the money was borrowed in order to finance the merchandise. Also in relation to maritime trade we can find many examples of loans with a commercial purpose/8 A right of pignus could also secure commercial sellers' credit. Ulp. D. 14.3.5.15 deals with the scope of the actio institoria in relation to a slave who was an institor of an olive oil business. Ulpian declares that the owner of this ‘slave/manager' shall be liable with the actio institoria when the manager has accepted a pledge for payment of the purchase price but refuses to return the charged object when the purchase price has been fully paid/9 Secured credit in banking and other contexts Secured credit would often be provided by bankers and other professional moneylenders. It would be a mistake, however, to associate pignus, hypotheca, and fiducia exclusively with commercial lending by bankers. The Roman law of real security also played a significant role in renting out rural and urban real estate, as will be elaborated in section 3.5?5 Loans with which members of the senatorial class funded the purchase of agricultural or urban real estate would often be taken from family and friends and would normally not be secured?6 But real security was sometimes agreed between relatives. 3.4
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