Fiscal Privileges: Third-party Effect

Legal rules which were developed for the ranking and execution of conven­tional pledges were applicable—as it were by cross-reference—to pledges or ‘pledge-like' rights which arose by operation of law?³ The fiscal general pledges were also in other respects subject to the same principles and rules as conventional general pledges, in particular the enforceability against third parties.

Third-party effect in jurisprudence and imperial constitutions

The objects of fiscal general pledges were defined in exactly the same manner as those of conventional pledges: not just those goods which fiscal debtors currently have but also those which they will acquire later. These fiscal general pledges mainly differed from conventional general pledges in their manner of creation: (certainly for tax debts) by operation of law rather than by way of conventio pignoris.5⁶ They were otherwise largely subject to the same principles and rules as conventional general pledges. For example, Pap. D. 50.15.5.2 refers to an execution sale of land for failure to pay direct taxes (‘tributi), which takes place pursuant to right of pledge (‘iure pignoris distrahituf). In Alex. C. 8.45.1 pr. (223 ad) the emperor rules that where ‘my proc urator’, because of debts owed to the treasury, sells land which has been charged (‘praedium obligatum), there shall be no liability for eviction. The constitu­tion justifies this on the analogy of an execution sale by a private pledge cred­itor, who is only liable for eviction where this has been expressly promised by way of stipulation.

A constitution by Caracalla from 215 ad is concerned with the recovery by the treasury from someone who purchased land from the debtor.

C. 8.14.2 (‘ veluti pignoris titulo obligari). See also: Paul. D. 27.9.2 (ius pignoris'); Paul. D. 40.1.10 (iure pignoris’); Herm. D. 49.14.46.3 (‘ius pignorum’).

54 Modern literature is divided. Wagner (1974: 161) calls it (with reference to Wubbe) a ‘false per­ception' that objects which the debtor has transferred to third parties are no longer charged in favour of the treasury. Medicus (1976: 429) observes that while for special pledges limitless third-party effects would be acceptable, for general pledges this could hardly be maintained, because it would prevent the debtor from disposing of any of his assets. For this reason, Medicus considers it plausible that—within certain limits (e.g., the ordinary course of business)—the debtor could freely dispose of generally pledged assets which were charged in favour of the treasury.

55 Paul. D. 49.14.45 pr. 56 Wagner 1974: 3.

Ant. C. 7.73.4. Si debitor, cuius fundum fuisse et ipse confiteris, prius eum distraxit, quam fisco aliquid debuit, inquietandum te non esse procurator meus cognoscet. nam etsi postea debitor extitit, non ideo tamen ea, quae de dominio eius excesserunt, pignoris iure fisco potuerunt obligari.

If the debtor whose land it was, as you yourself admit, sold it (to you) before he owed anything to the treasury, my procurator will find that you should not be disturbed. For although he became its debtor subsequently, that is no reason why things that had passed from his ownership should have been charged by way of pledge to the treasury.

The constitution rules that land sold and transferred by someone, who at the time of this transaction did not owe anything to the treasury, cannot be recovered for debts incurred afterwards. Although the constitution does not say this in so many words, it would seem to imply that a fundus sold and conveyed by someone after he had incurred a debt towards the treasury would be charged with a fiscal pledge and could be recovered from the purchaser.

D. 49.14.47 pr. Paulus libro primo decretorum. Moschis quaedam, fisci debi­trix ex conductione vectigalis, heredes habuerat, a quibus post aditam hereditatem Faria Senilla et alii praedia emerant. cum convenirentur prop­ter Moschidis reliqua et dicebant heredes Moschidis idoneos esse et multos alios ex isdem bonis emisse, aequum putavit imperator prius heredes conve­niri debere, in reliquum possessorem omnem: et ita pronuntiavit.

A certain Moschis, who owed money to the imperial treasury arising from the farming of a vectigal, had left heirs from whom, after they had entered on their inheritance, Faria Senilla and others had bought landed estates. When they were sued over the arrears left by Moschis, they alleged both that Moschis' heirs were solvent and that many others had bought from the same estate; the emperor thought it right that the heirs ought first to be sued, and thereafter every person in possession for the balance; and he gave judgment accordingly.

Moschis had rented the right from the treasury to collect a certain tax (vectigal)^3S When she died Moschis still owed money to the treasury pursu­ant to this tax farming contract. For this the treasury tried to take recourse against pieces of land sold by Moschis's heirs to a woman called Faria Senilla and other purchasers. The emperor ruled that the treasury should first pro­ceed against the heirs of Moschis and that only for the remaining debt recourse could be taken against third parties in possession of property formerly owned by Moschis. This imperial ruling reported by Paul assumes that the treasury did have a general right of pledge (or similar right of recourse), which was enforceable against purchasers of the debtor's property. The interests of third parties in possession (‘omnis possessor) are taken into account, in the sense that the treasury can only recover the assets from possessors to the extent that the heirs of the treasury's debtor fail to pay the fiscal debt.^{[1167] [1168]}

Another instance of third-party effect can be found in a constitution from 240 ad by Gordianus.

Evaluation

Fiscal pledges could therefore—in certain circumstances—be enforced against purchasers of the debtor's assets. It is possible, however, to reconcile Moschis's case with the nature of the general pledge as a ‘floating charge, which allowed the debtor to dispose of her assets until an event of default or similar event had occurred. First of all, the sale of Moschis's land took place after she died: it was not the debtor herself who disposed of her assets, but her heirs had sold the land to third parties. The debtor's power to dispose of her assets free from the fiscal charge would, as we have seen in other contexts, meet its natural end upon her death.^[1171] Secondly, there is a parallel with the termination of the tenant's authority to manumit slaves pledged as invecta et illata when the landlord exercises his right of lock-out for payment default/^[1172] Likewise, only transfers of Moschis's lands which had taken place after she had defaulted in the payment of the rents for the vectigals may have been affected by the treasury's right of recovery.

10.4