Forfeiture

The question of whether the original form of pledge in Roman law was a for­feiture pledge has caused fierce controversy in modern literature.^[539] According to Kaser, the forfeiture pledge can be regarded as a command of legal logic determined by the purpose of real security: if someone places an object at the disposal of someone else to secure the fulfilment of his debt, he should regain the object when the debt is settled; if the latter has not been effected, the other person may retain the object (as owner).

Hellenistic forfeiture pledges

At the end of the Republic the Romans were well aware of the existence of forfeiture pledges in the Greek world. The forfeiture of charged real estate was even a source of wealth for Roman equites acting as moneylenders in the provinces.^[542] From Cicero we have an account of a Hellenistic forfeiture pledge.

Philocles Alabandensis hypothekas Cluvio dedit. Eae commissae sunt. Velim cures ut aut de hypothecis decedat easque procuratoribus Cluvi tradat aut pecuniam solvat.

Philocles of Alabanda has given Cluvius hypothecs. These are forfeited. I should be grateful if you would see that he either gives up the hypothecated properties and delivers them to Cluvius's agents or else pays the money.^[543]

Philocles had granted non-possessory security over local pieces of land in Alabanda (Caria in Asia Minor) to Cluvius. Philocles must have failed to repay one or more loans in time because the security had become enforceable. Cicero asked Thermus, the propraetor of Asia, to take care of the interests of Philocles, by seeing to it that he either gave up the possession of the charged properties or else paid the money owed. So apparently, the properties had been forfeited (‘commissae’), but debtor Philocles was still in a position to redeem the security. If Philocles failed to do so, Cluvius would have a right to possession and the charged properties would be definitively forfeited to him.^[544] We are dealing with a non-possessory (‘hypothekas’, ‘hypothecis’) forfeiture pledge.⁹

In modern literature it has been argued that no arguments can be derived from the comparison between the development of law in Rome and in other ancient legal systems, specifically in Greece, in order to substantiate the exist­ence of a forfeiture pledge in republican and early classical law.¹⁰ A Greek influence on the Roman law of real security, however, cannot a priori be excluded.“ in fact, as we will see throughout this book, Greek-Hellenistic influences are conceivable for maritime loans, hypotheca, multiple pledge, antichresis, the general pledge, fiscal pledges, and the conditional sale of pledged property. Irrespective of this, there would not necessarily have been any Greek influence in pre-classical and early classical law.

Noordraven 1999: 157 and, in particular, Bertoldi 2012: 47-50. The Greek form of security may have been the npaois ˆni Xvoei (Bertoldi 2012: 48).

9 Manigk 1916: 356-7. ^w Wacke 1998: 176-7.

11 Wieacker 1988: 300-4. See also Krämer 2007: 175-6. Schanbacher (2006: 69-70) even asserts that the Roman pledge is a legal institution taken from Greece.

12 Zweigert and Kotz 1998: 40. There are, of course, many exceptions to this statistical law.

13 Finley 1953: 266.

14 See the references in Krämer 2007: 173 n 3; Verhagen 2011a: 12 (Merovingian law, medieval Dutch laws) and Verhagen 2013b: 150-1 (English law).

15 Van Gessel 2003: 97. 1⁶ Klingenberg 1992: 361.

Lex commissoria

One of Cato's templates expressly provides that the pledged tools shall be forfeited to the landowner if they are removed from the land: ‘si quid deportaverit, domino esto’^[545] This clause is a strong indication that upon the debtor's failure to pay the secured debt, the pledged objects were also for­feited to the creditor?^[546] Cato had a profound knowledge of Roman law and of agricultural management and was a financier of a complex maritime venture: surely he would also have recommended an express forfeiture clause if—as a matter of law—the creditor would have nothing more than a possessory lien (right of retention), the hypothetical alternative to a forfeit­ure pledge.1^[547] The purpose of the deportation clause was to ensure that the removal of pledged assets would have the same consequence as payment default: forfeiture.

Although for Roman law epigraphic evidence is lacking, in the late Republic and early Principate pledge agreements presumably did frequently contain a forfeiture clause: a lex commissoria.^[548] Classical Roman law knew two vari­ations of the lex commissoria.^[549] The first one was the transfer of sold property under the resolutive condition of non-payment of the purchase price. The second variation can be characterized as the transfer of ownership of pledged property under the suspensive condition of non-payment of the secured debt. The Latin term ‘lex commissoria’ has been suspected to be post-classical in respect of pignus,^{[550] [551] [552] although in respect of the seller's right to recover the sold thing as owner it is attested by classical sources?3}

Dernburg has reconstructed the lex commissoria in a pledge agreement as follows:

If the money is not paid on the day on which it falls due, the land shall become the creditor's?⁴

One might refer to this clause as an express forfeiture clause: the conventio pignoris would state that upon the debtor's failure to pay the creditor would acquire ownership of the pledged property, without there being a different legal basis (e.g., sale) other than the clause itself necessary to this effect.^{[553] [554]} There is not much evidence of these express forfeiture clauses in the Corpus iuris civilis.

Fiducia cum creditore and pignus

In the Sulpicii archive there are two groups of documents, all drawn up in the same format, relating to the auction of res mancipi, which have been man- cipated by way offiducia cum creditore.^[556]* The pacta fiduciae accompanying the mancipationes to the Sulpicii or their clients would have expressed that if the debtor failed to repay the secured debt in time then the creditor's duty to reconvey the charged property would be extinguished?^[557] The creditor's ownership would then enable him to transfer the charged slaves and land to purchasers at auction. Therefore, in early classical law, in fiducia cum creditore upon the debtor's failure to pay a creditor retained ownership of the charged res mancipi without there being a clause necessary to this effect.^[558]

Noordraven observes that a simple right of retention is implausible and forfeiture of the charged property to the creditor is the only meaningful completion of the fiducia cum creditore.^[559] But it is also the only meaningful completion of pignus. I find it difficult to imagine that in the first century ad, in the absence of an express lex commissoria (as in TPSulp 51, 52, and 55) the position of a creditor with a right of pledge over res nec mancipi was much weaker than that of a creditor to whom res mancipi were transferred by way of fiducia cum creditore.

Traditio pignoris causa

In classical law, pignus and fiducia were in principle dealt with in a similar manner by the jurists. This would only be different where the position of the parties under property law required a different approach.^[560] But isn't that pre­cisely the case here? In case offiducia, at the time of default by the debtor the creditor already owned the property, as a consequence of the mancipatio on ‘day 1' of the transaction.^[561] In case of pignus, however, in classical law owner­ship did not transfer to the creditor on day 1. How can one explain that in pignus the creditor did acquire ownership of pledged property in case of default?^[562] If one assumes (which I do) that the acquisition of the pledged property by the creditor must comply with the same requirements as those applicable to the transfer of res nec mancipi in general,^[563] one will have to con­struct a traditio in this respect. This is not too difficult. In early classical law the physical delivery of a pledged object to the creditor would have been equivalent to, or may actually have been, a traditio aimed at the conditional transfer of ownership.3^[564] In other words, the datio pignoris was equivalent to a traditio, which took place by way of conditional payment (pro soluto).³⁷ If upon the granting of the pledge the creditor was given actual control over the pledged property,^[565] the transfer of possession required for traditio was present and all requirements for the transfer of res nec mancipi were met/^[566]

In many texts the creation of a possessory pledge is described in terms of tradere or traditio.^[567] There are even opinions by Julian and his pupil Africanus which speak of a traditio taking place pignoris causa.^[568] Whenever these texts on pignus speak of traditio, this is, in my view, a genuine traditio in the legal sense.^{[569] [570] [571] [572] [573] For certain purposes this traditio did result in the creditor having possessio as a matter of law. From a legal perspective the creditor's possession differed significantly from that of someone to whom possession had been transferred pursuant to a contract of sale, donation, dowry, or other ‘title' for the transfer of ownership. The creditor's lack of will to possess as owner entailed that the creditor possessed on behalf of someone elseTh This ‘natural' (naturaliter) possession did, however, have legal consequences.'1'1 In D. 41.3.16, lavolenus describes what one could call functionally divided possession/5 ‘one who gives a pledge possesses only for the purposes of usucapio but, for all other purposes, the one who accepts (the pledge) possesses/6 In particular, the creditor to whom a possessory pledge had been granted would, for the purposes of the interdicts, be treated as a possessor. The creditor could rely on the possessory interdicts against persons who interfered with his possession of the pledged property. This could be justified by the general idea that until the secured debt has been discharged, the creditor's interest in the pledged property is more significant than the debtor’s.[574] Another trace of this idea is that initially both the debtor and the creditor could institute the actio furti: the creditor for the amount of the secured debt and the debtor for the surplus value.4[575] It is, therefore, not at all strange that the jurists frequently use the words tradere and traditio when they are dealing with a possessory pledge. This would be even less strange if one accepts that the traditio’s original purpose was to con­fer ownership upon the creditor, upon the debtor’s failure to pay (forfeiture).}

5.3