Generic Pledges
The first stage in the evolution of the general pledge lies in the Republic. The oldest ancestor of the general pledge is a generic pledge of invecta et illata, which we encounter as early as Cato's De agricultura in the second century bc.[963] For other generic pledges (grex, taberna) the evidence is from a much later period.
These generic pledges were only encumbering a class of assets within the patrimony of the debtor (although in fact these assets may have been virtually all the debtor's assets). It is not entirely clear whether these generic pledges were regarded by the Roman jurists as being granted generaliter, or whether that term was reserved for the pledge of the debtor's entire patrimony. However, what is far more important than terminology is that generic and general pledges share common legal characteristics, which distinguish them from pledges of individually specified assets. For this reason and because they can be regarded as the ancestors of the general pledge, in this section we will first have a closer look at generic pledges.Invecta et illata
As early as during the Republic we find generic descriptions of the pledged assets in pledge agreements. Cato's pledge templates define the pledged objects as ‘all that which is brought on the land' (‘quae in fundo inlata erunt') and ‘all cattle and servants which shall be there' (‘pecus et familia, quae illic erit’).[964] The formulae of the interdictum de migrando and the interdictum Salvianum contain similar generic descriptions of the pledged assets.[965] In the early classical period we encounter more or less the same description of the pledged assets in Labeo's opinion on tenant's pledges,[966] as well as in many later jurists' opinions and imperial constitutions from the Principate.[967] We also have epigraphic sources recording tenant's pledges of invecta et illata.[968] Thus the leges horreorum use phrasing like ‘quae in his horreis invecta inlata importata erunt’11 The tenant's pledge of invecta et illata served as a model for other variations of generic pledges.
Thus in Scaev. D. 20.1.32, ‘whatever was brought on the pledged land or there arose or was produced' (‘quaecumque in praedia pignori data inducta invecta importata ibi nata paratave essent') was pledged by a landowning farmer to the lender to whom also the land itself had been pledged. In D. 13.7.18.3 the early classical jurist Cassius recommends that in order to achieve that a ship built from the timber of pledged ‘wood' (‘silva') shall also be pledged, it should be expressly provided in the pledge agreement: ‘whatever things are the creation from and product of the wood' (‘quaeque ex silva facta natave sint').Grex pignori obligatus: pledge of a herd
The herd or flock (grex) was of immense importance for the largely agricultural Roman economy. In their treatment of the herd the jurists have tried to adapt the law to the demands of the Roman agricultural economy.[969] [970] [971] [972] [973] [974] Under the influence of Roman agricultural treatises and (perhaps) Stoic philosophy the Roman jurists developed what could be called a ‘legal doctrine of the herd?3 In the first century ad, Columella writes in his De re rustica that the purchase of individual animals entailed the risk that they would not get along with the other animals of the herd?4 This would often make it more attractive for buyers to purchase a herd as a whole, rather than individual animals from different sellers.15 This synergistic effect could also benefit the creditor with a right of pledge over the herd where he would sell the entire herd by way of execution. The herd is, moreover, a dynamic aggregate of assets, in the sense that its elements are in a constant flux: old animals die, young animals are born. In accordance with agronomical literature the jurists treated—for some purposes— the herd as such as the object of legal actions and transactions. Thus, as early as in the republican legisactio proceedings, the herd as such could be recovered by its owner from its possessor, and for classical law, the ‘vindication of a herd' (vindicatio gregis) is also attested?6 The herd as such could also be the object of a right of usufruct and the vindicatio ususfructus could be instituted by the ususfructuary in respect of the herd as such. The jurists' treatment of the usufructuary's duty to replace dead, sick, or wounded animals shows a keen awareness of agricultural practices recorded in agronomical literature, and a willingness to take account of economic necessities?7 Hammerstein's general conclusion is that the views of economic life have had a persistent influence on the formation of the legal rules concerning the ususfructus gregis. This legal doctrine of the herd is also underlying the only known classical text on the pledge of a herd (Marci. D. 20.1.13 pr.), which dates from the third century ad.i8 The granting of a pledge over a ‘herd' is regarded as entirely unproblematic?9 The only question it raises is whether animals born after the pledge was granted are subject to the pledge. That question is answered positively. D. 20.1.13 pr. Marcianus libro singulari ad formulam hypothecariam. Grege pignori obligato quae postea nascuntur tenentur: sed et si prioribus capitibus decedentibus totus grex fuerit renovatus, pignori tenebitur. If a herd has been charged with a pledge, later born animals are included. Indeed, if the whole herd dies and is renewed, it remains subject to the pledge. The nature of the herd as a dynamic aggregate of assets in particular requires that ‘incoming goods' are automatically subject to the pledge. Newly born animals added to the herd would indeed automatically be subject to the pledge, as Marci. D. 20.1.13 pr. confirms. One would also expect, however, that individual animals that were no longer part of the herd, because they were sold and delivered by the owner of the herd, would no longer be subject to the pledge.[975] This is indeed what is assumed in modern literature, although Roman legal sources are lacking. Thus both Wubbe and Hammerstein hold that the debtor could dispose of individual animals free from the pledge. According to Wubbe the pledge of a herd was even regarded by the Roman jurists as the pledge of one single res.[976] The individual animals were not pledged but the entire herd as such. There is, however, an alternative interpretation to the grex as a single res. Hammerstein has not found any evidence of specific influences of stoic propositions on the legal treatment of the herd. The background of the treatment of the grex as one entity and the individual rules of the usufructus gregis (which is more elaborated in jurists' writings than the grex pignori obligatus) do not lie in philosophical doctrine but in the perception of economic reality?3 Pomponius, however, endorses a characterization of the nature of the grex, which may very well have been influenced by Stoic philosophy?4 One category of things (res) distinguished by Pomponius concerns ‘that which is composed of individual entities, subsumed under one designation, such as a nation, a legion, or a herd?5 The grexpignori obligatus of Marci. D. 20.1.13 pr. could be a pledge of goods belonging to this category of corpora ex distantibus.[981] Pomponius considers that, although ‘the essence of a herd is such that it subsists through the accretion of animals', there is ‘possession of individual animals' and there can be ‘no usucapio of the herd as such'?[982] According to Pomponius this entails that if there are stolen animals in the herd, they are not usucapted, even though ownership of the remainder of the animals is acquired by way of usucapio. Translated to pignus this would mean that rights of pledge would encumber individual animals, which were generically designated by the one term grex and were from time to time part of the herd. Pledge of a ‘taberna’ For another important sector of the Roman economy, the retail business, the jurists again adopted a flexible approach and considered it possible to grant a generic pledge over the merchandise located from time to time in a taberna. D. 20.1.34 pr. Scaevola libro vicesimo septimo digestorum. Cum tabernam debitor creditori pignori dederit, quaesitum est, utrum eo facto nihil egerit an tabernae appellatione merces, quae in ea erant, obligasse videatur? et si eas merces per tempora distraxerit et alias comparaverit easque in eam tabernam intulerit et decesserit, an omnia quae ibi deprehenduntur creditor hypothecaria actione petere possit, cum et mercium species mutatae sint et res aliae illatae? respondit: ea, quae mortis tempore debitoris in taberna inventa sunt, pignori obligata esse videntur. When a debtor pledged a shop to the creditor, the question was put whether this was invalid or whether by ‘shop’ the merchandise in the shop was to be taken as charged. Two questions are raised in this text.[986] The first is whether the pledging of a taberna was invalid, or whether it must be understood as a pledge of the merchandise located in the shop. The second question is whether the pledge of floating stock would be effective in the sense that merchandise that was purchased after the pledge had been granted also would be charged. Scaevola appears to answer the second question only, although perhaps his affirmative answer to that question can be read as also affirming the second part of the first one (pledge of 'taberna' = pledge of merchandise?). In D. 20.1.34 pr. the pledge of a 'taberna' is not construed as a pledge of the building structure itself/[987] It gave rise to the question of whether this must be understood as concerning the merchandise (merces) which was situated in the taberna.[988] At the time of Scaevola it may not have been completely settled that the single term taberna covered the shopkeeper's entire floating stock-intrade. In the second century ad it may still have been rather bold to designate the merchandise with the word taberna because—unlike the herd—it is less clearly one entity.[989] From Scaevola's answer, however, it can be read that there was nothing which could invalidate such a pledge. Scaevola concludes that the merchandise, which was present in the taberna at the time of the shopkeeper's death, was subject to the pledge/[990] This implies that the merchandise which entered the taberna in the period between the granting of the pledge and the shopkeeper's death would be subject to the pledge. In respect of general pledges, Scaevola himself indicated that the pledged assets did not need to be in bonis debitoris at the time of the conventio pignoris.[991] [992] [993] [994] However, even if we regard the pledge of a ‘taberna’ as a general pledge it is still not without problems. From the jurists' opinions it can be derived that in order for a general pledge to extend to future assets, this normally had to be expressly agreed.37 If that is so, simply pledging a ‘taberna’ might have been insufficient to charge incoming goods. This may have been the reason why Scaevola appears somewhat reluctant to answer the question whether the pledge of a ‘taberna’ was valid. In any case, the (second) question, whether a pledge of merchandise encumbers new stock, is expressly (and positively) answered by Scaevola. In this respect the pledge of a taberna is treated in the same way as the pledge of a herd. The merces located in the taberna, however, certainly are not regarded as one res with renewable components/8 Fundus cum instrumento Despite its enormous importance for the Roman economy and the treatment of the fundus cum instrumento in Roman agricultural literature as one entity, the pledge of a fundus was not conceived by the jurists as a charge over an aggregate of economically linked assets/9 The jurists, although they were familiar with the agronomists' writings and did have knowledge of the operation of agricultural estates, did not recognize the fundus as a ‘solid legal entity’.[995] They did not attribute legal significance to the connection between farm buildings on different sites as conditioned by their belonging to the same agricultural enterprise?[996] Where several plots of land were used for the operation of the farm, they would be individually specified in the conventio pignoris. This is illustrated by the tabulae alimentariae from the second century ad, which record the granting of security over real estate in order to secure loans granted by the imperial treasury. In all the recorded transactions several praedia rustica are specified (by name, location, and often buildings situated on the land) as properties securing one lending transaction?[997] In these documents, the buildings on the land are also expressly mentioned, although as a consequence of the rule superficies solo cedit the charge over the farmland would automatically extend to the buildings on the land?[998] [999] The agronomists again were largely responsible for the conceptual unification of the notion of instrumentum—the range of movable assets which were permanently connected with the operation of a fundus as an economic unit?4 The fundus cum instrumento was regarded as a ‘separate patrimony’ in agricultural literature. For legacies of a fundus cum instrumento a large number of legal opinions have been collected in Title 33.7 of the Digest. These texts are part of a rich jurisprudential literature on the interpretation of terms in legacies designating aggregates of things (e.g., a slave’s peculium, taberna, furniture (suppellex), and fundus cum instrumento).[1000] Thus according to Labeo and many other classical jurists it was possible to make a legacy of an operating farm by defining the bequeathed property as ‘fundus cum instrumento’ (or ‘fundus instruct us').[1001] [1002] Much casuistry has been preserved in the Digest on which slaves and objects exactly were covered by this concept in individual cases.47 However, I have not been able to find one text in the Digest or Codex expressly dealing with the granting of a pledge over a fundus cum instrumento (or its synonym fundus instructus). But that does not necessarily mean that this did not happen in practice: the lack of evidence could be a consequence of failed transmission of jurists' opinions and imperial constitutions. In fact, in one of the few surviving epigraphic sources on charging land we appear to encounter the granting of security over a fundus cum instrumento (although another term is used). In the Formula Baetica the charged real estate is defined as: fundum Baianum, qui est in agro qui Veneriensis vocatur, pago Olbensi, uti optumus maxumusq(ue) esset....[1003] the fundus Baianus, which is located in the territory that is called Veneriensis, in the Olbensis region, in best and fullest condition.... The expression ‘uti optimus maximusq(ue)’ is defined by Paul. D. 33.7.22 pr. Paulus libro tertio sententiarum. Fundo legato ‘ut optimus maximusque est' retia apraria et cetera venationis instrumenta continebuntur: quod etiam ad instrumenta pertinet, si quaestus fundi ex maxima parte in venationibus consistat?[1004] When a farm is legated ‘in best and fullest condition’, boar nets and other hunting gear will be included, which also belong to the instrumentum if the income of the farm is chiefly derived from hunting. The phrase ‘ut optimus maximusque est' is equivalent to instrumentum. Where a mancipatio by way of fiducia cum creditore of a fundus cum instrumento took place in practice, it is plausible that pledges of a fundus ut optimus maximusque est’ also occurred. Alternatively, the scope of the pledged assets of an operating farm could be defined by making use of the ancient and much-used concept of invecta et illata. In Scaev. D. 20.1.32 this concept is given an economically sensible interpretation: not all the slaves who at some time had worked on the land are subject to the pledge but only those slaves who were permanent staff. In Mod. D. 20.1.26.2 the debtor granted a pledge not only over several pieces of land but also over the slaves working on the land from time to time (‘praedia et mancipia quae in praediis erant’).[1005] From the second half of the second century ad farms as an economic unit could be pledged by way of a general ‘all assets' pledge. 9.3
More on the topic Generic Pledges:
- General Pledges and Special Pledges: Ranking
- Generic sales
- Initial Impossibility of Multiple Pledges
- Origin of Fiscal Pledges
- Possessory and Non-possesory Pledges in the Sulpicii Archive
- Terminology
- Fiscal Privileges: Third-party Effect
- Ranking of Fiscal Privileges
- Continuation of older practices
- Title Registries
- Introduction
- Origin of the Actio Serviana
- Introduction