Evolution of Pignus and Hypotheca: lus Civile, lus Honorarium, and lus Novum

If we look at the forms of pledge which originated during the first half of the classical period, we can see that the ius honorarium recognized new transac­tional practices and thus contributed decisively to the evolution of the Roman law of real security.

During the course of the classical period limitations were placed on the parties' ability to structure their legal relationships themselves. The first limi­tation was that at some stage the creditor became obliged by operation of law to pay back the surplus to the debtor. This obligation may have followed from the bona fides, a ius civile concept with roots in the ius honorarium. From the second century AD onwards the imperial rescript practice, in particular that of the Severan emperors, began to interfere with the law of real security. The late classical Roman concepts and rules protecting the debtor were not part of the ius honorarium but rather of imperial law (ius novum). However, even here it can still be observed that the most important late classical rules on enforcement—prescribing sale of the charged property and a duty for the creditor to pay the surplus back to the debtor—find their origin in transac­tional practices, as we encounter powers of sale coupled with provisions on surplus already in documents dating from the first century ad. The law of pledge at the end of the classical period, which was largely taken over in the Corpus iuris civilis and later received in the European ius commune, has there­fore evolved in different ‘strata' of the legal system: ius civile, ius honorarium, and ius novum.