Early Classical Ancestors of Hypotheca in the Digest

In all likelihood the right of pignus originated in the early ius civile as a form of possessory security/⁵ It has been argued, however, that when in the second century bc pignus surfaces in Cato and the Comedies, it was in the form of a security interest that could be created by mere agreement and could take the form of a non-possessory pledge.^[739] As such, it was a Fremdkorper (alien body) in the world of Roman law and must have been a legal transplant from Greece.

The Greeks recognized such a purely contractual pledge, and it is from them that it came to Rome.^[740] There is an element of speculation in this bold assertion, but it also has a grain of truth. As we can see repeatedly in this chapter (maritime loans) and elsewere in this book (hypotheca, antichresis, multiple pledge, fiscal pledge, and conditional sale), Greek-Hellenistic influences cannot be excluded, although perhaps more through transactional practices than by a reception of legal rules or institutions. Moreover, whether or not of Greek extraction, we find ancestors of the hypotheca in Roman law from before the age of Julian. Not only are there republican ancestors of hypotheca and first- century ad epigraphic sources attesting a non-possessory pledge, there are also several early classical jurists' opinions which appear to be dealing with non-possessory pledges.^[741] Although one cannot say that the non-possessory pledge is firmly rooted in surviving pre-Julian jurisprudence, at the same time there are indications in the writings of late republican and early classical jurists making it plausible that non-possessory pledges were recognized by (at least some of) them. These texts were, in any case, all regarded by the Compilatores of the Corpus iuris civilis as concerning pignus.^[742] ^{^[743] Alfenus on the pledge of a boat
There is speculation in modern literature that, under republican law, a creditor to whom a pledge had been granted without possession was entitled to pignoris capio.
Kaser thinks this is an ‘old' institution which can be regarded as the ‘real' version (execution on a res) of the manus iniectio (execution on the person of the debtor)/⁰ This is not the legis actio per pignoris capionem which, according to Gaius, was based on statute or custom, but an informal remedy which was based on the (express or implied) will of the debtor.^[744] ^{^[745] ^[746] ^[747] ^[748] ^[749] It is therefore conceivable that the conventio pignoris itself would give the creditor the right to pignoris capio, that is to take possession without judicial permission/² The case discussed by the late republican jurist Alfenus in D. 13.7.30 may be an example of this. Alfenus Varus (consul in 39 bc) was the first jurist to write a work with the title Digesta, from which Paulus took the fragment which follows/³ He was one of the most important pupils of Servius Sulpicius Rufus: the ‘respondit in the text may very well be a reference to Alfenus’s master/⁴ There is, therefore, a distinct possibility that the text reflects a point of view taken by the possible ‘inventer’ of the actio Serviana.
D. 13.7.30. Paulus libro quinto epitomarum Alfeni digestorum. Qui ratiario crediderat, cum ad diem pecunia non solveretur, ratem in flumine sua auctoritate detinuit: postea flumen crevit et ratem abstulit. Si invito ratiario retinuisset, eius periculo ratem fuisse respondit: sed si debitor sua voluntate concessisset, ut retineret, culpam dumtaxat ei praestandam, non vim maiorem. Someone who lent to a waterman, when the debt was not paid on the day, detained the boat on the river on his own authority. Then, the river rose and swept the boat away. On this, the reply was that if he held the boat against the will of the waterman, the risk of its loss was on him; but if the debtor consented to giving it up to be detained, then the lender was only liable for fault, not for force majeure/⁵
Alfenus (or Servius) distinguishes between two variants of the fact pattern under review, one in which the creditor ‘on his own authority’ (‘sua auctoritate’) detained the boat against the will of the debtor and another one in which the creditor detained the boat with the consent of the debtor/⁶ The first variant could be regarded as evidence of the continuing existence of an archaic self-help remedy allowing ordinary (unsecured) creditors to take possession of goods belonging to the debtor.^[750] ^{^[751] ^[752] In the second variant of the fact pattern discussed by Alfenus, the ‘consent to giving it up to be detained' could be read as the granting of a right of pledge.}
The words ‘si debitor sua voluntate concessisset, ut retineret' should then be regarded as equivalent to phrases like ‘si debitor pignori dedisset or ‘si debitor rem suam obligavisset In modern literature this has been interpreted as the granting of a non-possessory pledge/⁸ This non-possessory pledge would allow the lender to take physical control of the boat when the borrower was in default, in a similar manner as a landlord's perclusio pursuant to an urban tenant's pledge. From the late classical period we have evidence of such a self-help remedy available to creditors with a non- possessory pledge. Ulp. D. 47.2.56 says that when a creditor takes the pledged object with him, he is not regarded as wrongfully appropriating it but as ‘looking after his pledge' (‘pignori suo incumbere’). In an imperial constitution from 205 ad by Septimius Severus and Caracalla, reference is made to secured creditors who enforce their pledge by taking possession of the pledged assets when their debtor is in default/⁹ According to the constitution they must not be regarded as having used force, although the possession must be gained with the permission of the governor. In another respect too, Alf. D. 13.7.30 aligns with the law on pignus. In early classical law the creditor with a possessory pledge would be liable for culpa: this is precisely the degree of liability imposed here on the creditor after he has taken possession of the boat.80 Cassius on the pledge of (a) wood and a ship
Gaius Cassius Longinus was a great-grandson of Servius Sulpicius Rufus and was a follower of Sabinus/¹ In D. 13.7.18.3, Paul reports an opinion by Cassius on what very well could have been a non-possessory pledge.
D. 13.7.18.3. Paulus libro vicensimo nono ad edictum. Si quis caverit, ut silva sibi pignori esset, navem ex ea materia factam non esse pignori Cassius ait, quia aliud sit materia, aliud navis: et ideo nominatim in dando pignore adiciendum esse ait: ‘Quaeque ex silva facta natave sint’.
If someone provides that wood shall be a pledge for him, Cassius holds that a ship made from this material is not within the scope of the pledge; for the material is one thing and the ship is another. Hence, he holds it necessary to add expressly when the pledge is given: ‘whatever things are the creation from or product of the wood’. ^[753] ^{^[754] ^[755] ^[756] ^[757]}
When someone has negotiated that ‘silva’ shall be pledged to him, a ship built from the wood shall not be subject to the pledge, because the wood and the ship are different materials. In order to achieve that the ship is also charged, Cassius recommends that a clause is included in the pledge agreement which expressly provides that the pledge shall extend to ‘whatever things are the creation from and product of the wood’. One thing is clear about this text. If it is dealing with a right of pignus, this must have been a non-possessory pledge. The ship must have been built by, or on behalf of, the debtor, which presupposes that the pledged material from which it was built was still under his physical control/³ In several other respects, however, the text is thought to be problematic/⁴
A possible translation of silva could be ‘coppice’: trees which have been felled. This translation solves a problem, which is connected with the fact that if silva means woodland or forest it would have been a res mancipi (unless it was situated in the provinces). In Cassius’s time a mancipatio by way offiducia cum creditore would normally be the preferred security interest for res manci- pi.*⁵ Nevertheless, I consider it plausible that D. 13.7.18.3 is on pignus, even when the pledged object was woodland. There are other early classical Digest texts which may have concerned pignus of res mancipi.*⁶ The clause ‘quaeque ex silva facta natave sint’ is typical for pignus and may have been derived by Cassius from the formula of the interdictum de migrando (‘ibi nata factave essent’) or from standard form tenant’s pledges.
It is similar to clauses reported by later jurists in respect of the produce of pledged land. In D. 20.1.32, Scaevola discusses a conventio pignoris, which expressly provided that ‘whatever was brought on the pledged land or there arose or was produced was to be pledged’. This is, in my view, the clearest indication that we are probably not dealing with fiducia cum creditore. Even if the woodland had been mancipated to the creditor, the ship (as res nec mancipi) would have had to be charged by way of pignus (or separately fiduciarily transferred by way of in iure cessio). In theory it would have been possible to add a supplemental conventio pignoris to the document recording the pactum fiduciae. The clause recommended by Cassius is, however, much more likely to have been part of an independent conventio pignoris concerning the wood itself. Another indication is that D. 13.7.18.3 is taken from book 29 of Paul's commentary of the praetor's edict, which was concerned with pignus. There is much to be said, therefore, for considering D. 13.7.18.3 as genuinely dealing with pignus in the shape of a non-possessory pledge, either on wood or on woodland. Labeo on the right to sell an apartment building
Marcus Antistius Labeo (f 10-21 AD) was the son of a jurist and had been a praetor.^[758] ^{^[759] His working life as a jurist partly coincided with the reign of emperor Augustus, whose politics he seriously disapproved and whose offer of a consulship he refused^ Pomponius's Enchiridion says that ‘Labeo set out to make a great many innovations on account of the quality of his genius and the trust he had in his own learning which had drawn heavily on other branches of knowledge'/^[760] Labeo's most innovative thinking is concerned with the enforceability of pacta conventa.⁹⁰ He was prepared to grant actions for the enforcement of agreements which were not recognized by the ius civile as enforceable contracts. Labeo's opinion in D.}
20.1.35, which was apparently considered by the Compilatores as dealing with pignus, is precisely concerned with such a pactum conventum. D. 20.1.35. Labeo libro primo pithanon a Paulo epitomarum. Si insula, quam tibi ex pacto convento licuit vendere, combusta est, deinde a debitore suo restituta, idem in nova insula iuris habes.
If a block which by agreement you had the right to sell is burned down and rebuilt by the debtor at his own expense, you have the same right in the new block.⁹¹
This fragment may have been concerned with a right of pignus created on an appartment block (insula) and holds that when the block burned down and was rebuilt by the debtor at his own expense, the creditor shall have the same right in the new block. If dealing with pignus, Labeo D. 20.1.35 would—for several reasons—be an important opinion. First of all, it would be an early classical example of a jurist's opinion on a right of pignus charged on a res mancipi. It would also be an early classical example of a pledge which was to be enforced by selling the pledged property (rather than by way of retention or forfeiture). And finally, Labeo D. 20.1.35 would also be an early classical example of a non-possessory pledge, as the fact that the debtor rebuilt the building presupposes that it was in his full possession.^[761]
The words ‘ex pacto convento licuit vendere' are in all likelihood a reference to the conventio pignoris, giving the creditor the right to sell the pledged property?^[762] These words are hardly different, for instance, from those of Pomp. D. 13.7.8.5: ‘cum pignus ex pactione venire potest’.^[763] Here also, an agreement allowing one party to sell his debtor's property is characterized as an agreement to pledge that property. One cannot entirely exclude the possibility that Lab. D. 20.1.35 was concerned with fiducia cum creditore, as the charged property was a res mancipi.⁹⁵ However, I consider it not very likely that where real estate had been mancipated by way of fiducia, Labeo would refer to this transaction as ex pacto convento licuit vendere. It is true, a mancipatio fiduciae causa would have been accompanied by a pactum fiduciae, which would have included a licence to sell?⁶ However, it would be odd that Labeo would use a clause in this supplemental agreement in order to refer to a fiducia cum creditore, rather than to its constitutive acts (mancipatio and pactum fiduciae). This looks much more like a conventio pignoris, which (at Labeo's time) may still have been enforceable on the basis of the edictum de pactis or otherwise (separate edict for actio Serviana, actio utilis, or actio in factum).⁹⁷ In case of pignus the conventio pignoris is the constitutive act, so that here a reference to one of its components is less strange. In conclusion, a good case can be made for regarding Lab. D. 20.1.35 as an early classical non-possessory pledge.
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Source: Verhagen Hendrik L.. Security and Credit in Roman Law: The Historical Evolution of Pignus and Hypotheca. Oxford University Press,2022. — 448 p.. 2022

Early Classical Ancestors of Hypotheca in the Digest

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