From Cetera Bona to Independent General Pledge

Cetera bona pledge: Gai. D. 20.1.15.1

The objects of the pledges discussed in the previous section concerned a class of assets within the debtor's patrimony: buildings, tools, inventory, herd, mer­chandise etc. From the second century ad onwards, we have abundant evidence in the Corpus iuris civilis (but not in the epigraphic sources) of general pledges, which were granted over all the debtor's present and future assets. The direct ancestor of this general ‘all assets' pledge is the so-called cetera bona pledge: the combination of a special pledge over one or more specified assets and a general pledge over all the debtor's (present and future) other assets.

From Gaius we have in D. 20.1.15.1 one of the two most important sources of information on the nature and purpose of the general pledge.^{[1008] [1009] [1010] [1011] [1012] In his com­mentary on the formula hypothecaria, written somewhere between 153 and 179 ad,54 Gaius says that the condition of in bonis esse must be applied differ­ently to special and general (cetera bona) pledges.}

D. 20.1.15.1. Gaius libro singulari ad formulam hypothecariam. Quod dicitur creditorem probare debere, cum conveniebat, rem in bonis debitoris fuisse, ad eam conventionem pertinet, quae specialiter facta est, non ad illam, quae cottidie inseri solet cautionibus, ut specialiter rebus hypothecae nomine datis cetera etiam bona teneantur debitoris, quae nunc habet et quae postea adquisierit, perinde atque si specialiter hae res fuissent obligatae.

When it is said that the creditor should prove that, when he made the agree­ment, the thing was in the debtor's patrimony, this applies to that agreement that has been especially made, not to the clause commonly inserted in deeds that beside the property specially hypothecated, the debtor's remaining assets, both those which he now has and those which he will afterwards acquire, will be liable in the same manner as if these things were especially charged.55

From a dogmatic perspective Gai. D. 20.1.15.1 is important because it says that in respect of assets not pledged specialiter, the condition of the actio Serviana that the pledged goods should at the time of the pledge agreement be in bonis of the debtor does not apply/⁶ From a historical-evolutionary per­spective Gai.

Gaius D. 20.1.15.1 opposes a conventio which is specialiter made to a pledge agreement in respect of the debtor's cetera bona, the latter variant of pledge therefore apparently not being granted specialiter. Why would the parties cre­ate a special pledge and a general one at the same time? Why would they not simply pledge all the debtor's assets? The most plausible explanation is that at the time when this transactional practice originated, the legal status of the general pledge was not yet fully settled. For that reason one or more valuable assets were singled out and specially pledged/^[1016] What does point in this direc­tion is that the parties considered it necessary to say that generally pledged goods will be treated in the same manner as if they were specially pledged (‘perinde atque si specialiter hae res fuissent obligatae’).^{[1017] [1018] [1019] [1020] The point of refer­ence is still the special pledge and by this analogy, the general pledge is meant to become enforceable/4 As such, the cetera bona pledge could be regarded as a transitory form between the special pledge and the independent general pledge.65}

Independent general pledge: Pap.

From 206-212 ad, several decades after Gaius, we have the other most important opinion on the (independent) general pledge.66

D. 20.1.1 pr. Papinianus libro undecimo responsorum. Conventio generalis in pignore dando bonorum vel postea quaesitorum recepta est: in speciem autem alienae rei collata conventione, si non fuit ei qui pignus dabat debita, postea debitori dominio quaesito difficilius creditori, qui non ignoravit alienum, utilis actio dabitur, sed facilior erit possidenti retentio.

A general agreement to create a pledge is recognised also in respect of those assets that are acquired afterwards. But if the agreement covers specific property of another, which is not then owed to the grantor of the pledge but afterwards has become the ownership of the debtor, the creditor who was not unaware that it was someone else's is not so easily given an utilis actio for it, but it is easier for the possessor to retain it.

The gist of this opinion is the same as that of Gai. D. 20.1.15.1: in case of gen­eral pledges it is not required that the pledged assets were in bonis debitoris at the time the pledge was granted. The words ‘recepta est might indicate that the legal recognition of this type of general pledge had occurred in the recent past, although according to Wubbe they merely indicate that the general pledge was widely recognized, without alluding to its time of origin.^{[1021] [1022] [1023] [1024] From that past we do, in any case, have jurists' opinions on the independent general pledge: the first opinions unequivocally concerning the independent general pledge are by Gaius's younger contemporary ScaevolaTh These opinions are followed by a long line of jurists' opinions and imperial constitutions con­firming that the possibility to grant a pledge over all the debtor's present and future assets had become firmly anchored in classical Roman law/9}

Later purpose of the cetera bona pledge

We also find the cetera bona pledge in later fragments, dating from a period in which the general pledge was firmly embedded in Roman private law/⁰ This means that uncertainty about the legal status of the general pledge cannot have been the only motive for creating cetera bona pledges in the classical period.