Hypotheca Contracted Nuda Conventione

A pivotal point in the history of pignus is the jurist, Julian. At least, this is the impression one could get after a comprehensive reading of Digest texts on pignus. It is Julian who first uses the expression conventio pignoris, who first mentions that hypotheca could be created by mere agreement (nuda conven­tione), and who may have generalized the actio Serviana.

Pignus, nuda conventione, and hypotheca

In the second century ad it came to be recognized that the right of hypotheca could be created—as Julian says—merely by means of a contract: ‘creditor nuda conventione hypothecam contraxerit’. The real right of pledge would not require a separate disposition (traditio) in addition to the pledge agreement, not even for the pledge of res mancipi. It is remarkable that a right in rem, which was enforceable against any possessor of the pledged object, could be granted by contract alone. In the case of the transfer of ownership, it was never accepted in classical law that this could take place by agreement only: at the end of the third century ad, Diocletian still ruled that the ownership of goods is transferred through traditio and not by ‘naked pacts’.99

The first jurist in our sources to use the expressions nuda conventione and hypotheca is Julian.¹⁰⁰ In this fragment we encounter both expressions.

9 ⁸ See, for example, the texts quoted in this section. For a complete overview, see Manigk 1916b: 362-3. Manigk has counted the number of references to the noun hypotheca (104) and the adjective hypothecaria (16) in the Digest. More than half of the references are by Marcian.

99 Diocl.-Max. C. 2.3.20: 'dominia rerum, non nudis pactis transferuntur. Gordon 1970: 1-2 and passim.

100 The first imperial constitution mentioning hypotheca is Sev.-Ant. C. 8.40.2.1 (207 ad).

D. 41.3.33.4. lulianus libro quadragensimo quarto digestorum. Qui pignori rem dat, usucapit, quamdiu res apud creditorem est: si creditor eius posses­sionem alii tradiderit, interpellabitur usucapio... Plane si creditor nuda conventione hypothecam contraxerit, usucapere debitor perseverabit.

A person giving a thing in pledge usucapts it so long as it is with the creditor; but if the creditor delivers possession of it to someone else, the usucapio is stopped... It is evident that if the creditor contracts a hypothec by mere agreement, the debtor will continue to usucapt.

In the first sentence, Julian indicates that the fact that the pledged object is in the hands of the creditor (possessory pledge) does not adversely affect the debtor's usucapio. A fortiori, according to Julian, this will also be the case where the debtor has granted a hypotheca by mere agreement (‘nuda conven­tione’). In D. 41.3.33.4 the term pignus is used for a possessory pledge, while hypotheca denotes a non-possessory one. In the Digest there is, however, only one text which expressly sets out the difference between pignus and hypotheca.^{[764] [765]}

D. 13.7.9.2. Ulpianus libro vigensimo octavo ad edictum. Proprie pignus dicimus, quod ad creditorem transit, hypothecam, cum non transit nec pos­sessio ad creditorem.

Properly speaking, we use pignus for that which transfers to the creditor and hypotheca for that in which not even possession transfers to the creditor.

D. 13.7.9.2 has been taken from a commentary on fiducia and could have been interpolated.

Although the term hypotheca is more often used in respect of non- possessory pledges, there are also texts where it is used as a general term for possessory and non-possessory pledges."¹⁴ Kaser was not able to identify texts in which hypotheca is used for a possessory pledge only.™⁵ However, Pap. D. 20.1.1.3 discusses an agreement that if interest is not paid in time, the fruits of the hypothecated goods (‘fructus hypothecarum) will be set off against the interest. This means that the creditor was capable of harvesting the fruits, so that he must have been in possession of the pledged fruit-yielding property. In the jurists' writings and imperial constitutions there is no con­sistent and generally accepted terminology for distinguishing possessory from non-possessory pledges.™⁶ Marcian observes that ‘between pignus and hypotheca only the sound of the name differs'.™⁷ Pignus and hypotheca are one species, with basically the same legal consequences.

Hellenistic origin of hypotheca

One of the great ‘riddles' (Kaser) of modern Romanist research is how and why the word hypotheca, borrowed from Greek, was assimilated in Roman

103 Kaser 1982: 131 n 12.

104 According to Manigk hypotheca, like pignus, is also used in order to refer to the pledged object, in particular by Marcian (D. 20.1.16.3.1; D. 20.1.16.6); other references in Manigk 1916b: 344. See also Gai. D. 20.4.11.1; Gai. D. 20.6.7. pr.; Diocl.-Max. C. 8.25.8.

105 Kaser 1982: 131 n 11. Kaser 1982: 133.

107 Marci. D. 20.1.5.1 ("Interpignus autem et hypothecam tantum nominis sonus differt’).

108 In Scaev. D. 20.1.34.1 ‘υποθήκη is called ‘pignus’.

109 For example, Scaev. D. 45.1.122.1 (subpignoribus et hypothecis mercibus’'); Marci. D. 20.4.12 pr. (‘pignori hypothecaeve’); Sev.-Ant. C. 8.40.2.1 (pignora vel hypothecas’). legal speech.¹¹⁰ Is this merely a terminological matter—Greek expressions being used in order to facilitate Greek-speaking communities—or a symptom of a more substantial influence of Greek legal practices? The modern view is that the use of hypotheca in the classical sources is a terminological matter rather than evidence of a full-scale legal transplant from Greek-Hellenistic law to Roman law?“ In my opinion, this does not rule out the possibility that Hellenistic transactional practices did contribute to the origin of new variants of pignus. There is a distinct possibility that the Greek loan word hypotheca indicates that Hellenistic transactional practices (e.g., maritime loans and ύποθηκη) did influence the evolution of pignus and hypotheca to a security right in rem that could be created nuda conventione.

The term hypotheca may have been used specifically for the accomodation of security rights granted pursuant to documents drawn up in accordance with local Hellenistic laws and practices.“⁴ The word hypotheca was frequently used in the Greek-speaking part of the Roman empire and could have entered Roman legal speech via Roman provincial jurisdictions, in order to clarify for a Greek speaking audience which legal institution was covered by the provin­cial edict.“⁵ By Scaevola's time, Roman jurists were quite familiar with the Greek/Hellenistic legal contract of ύποθηκη. In the first century bc, Cicero already referred to ύποθηκη by means of the Latin transliteration hypotheca in a letter he sent to his friend, Q.M. Thermus.“⁶ This example is taken from the Hellenistic Roman East, where at the time Cicero was proconsul of Cilicia

no Kaser 1982: 129. See also Wagner (1968: 24); Fuenteseca 2013: 123-40. See recently also Mauer 2022: 69-93.

in Wagner 1968: 22. “² For a similar argument, see Kaser 1982: 130.

è³ Kaser 1976: 203. Kaser (1971: 463) observes that there are no ‘palpable traces' of an influence of the Greek non-possessory ύποθηκη and warns that the problem of Greek influences of the Roman law of pledge cannot be solved with certainty "mit unseren Mitteln (Kaser 1976: 203).

114 Wagner 1968: 21-2. In stronger terms, Braukmann 2008: 58 (example of a deliberate attempt to introduce the purely contractual pledge in Roman law).

115 Wagner 1968: 20-2; Kaser 1971: 463. Cic., Fam. 13.56. while '1 hermits was the propraetor of Asia. This Greek word may even have trickled down to the formal sources of law. Gaius did write a Liber singularis ad formulam hypothecariam and from the late classical period there is a monograph by Marcian with the same title. The word hypotheca is used consistently by Gaius and Marcian and may be explained by their connec­tions with the eastern part of the Roman empire.^[766] They both had studied in Rome but had a Hellenistic background and wrote and taught in the eastern provinces.“^[767] It is held in modern literature that the terms hypotheca and hypothecaria were not used in the provincial edict itself, which followed the urban edict closely. These expressions would only be employed in the responsa of jurists on rights of pledge granted in a Hellenistic setting.“^[768] In his com­mentary on the provincial edict, Gaius refers to ‘the quasi-Serviana, which is also called hypothecaria’.^{[769] [770]} The ‘et hypothecaria vocatur could suggest that we are dealing with colloquial speech.“i One cannot, however, exclude the pos­sibility that in its formula for the actio Serviana the provincial edict may have used the words ‘pignus hypothecave’ and in conjunction therewith have referred to ‘actio Serviana vel hypothecaria’.^[771] In his monograph Marcian dis­cusses the exceptio ‘si non mihi ante pignori hypothecaeve sit res obligata’^{[772] [773]} Here the word hypotheca is used in a procedural device, which may very well indicate that at that time, hypotheca, and perhaps even actio hypothecaria, had become technical expressions which were included in the provincial edict(s).12⁴ Also the term ‘formula’ in the title of the works of Gaius and Marcian could point in this direction.

Conventio pignoris as ‘real’ contract (contractus re)

Gaius writes in his Institutes that obligations arising out of contract can be divided into four categories. An obligation is contracted through a thing (‘re contrahitur obligatio’), by words (‘verbis’), by writing (‘litteris’), or by agree­ment (‘consensu’) (Gai. Inst. 3.89).“⁵ Obligations ‘contracted through a thing’ only arise once the objects in question are handed over from one party to the other. In his Institutes, the only contract referred to by Gaius as giving rise to an obligation re contrahitur is mutuum (Gai. Inst. 3.90).^{[774] [775] [776] [777] [778] [779] In another work, with respect to pignus, Gaius writes: ‘Also a creditor who received a thing in pledge is liable through a thing; and he is himself liable for return of the very thing which he received' (D. 44.7.1.6).12? The characterization of the pledge agreement as ‘real', therefore, means nothing more than that the creditor's obligation to give back the pledged property arises by operation of law, by the simple fact that physical control has been transferred.^8 This is reflected in the formula in factum of the actio pigneraticia directa, which expressly states that the creditor has not returned the pledged property after discharge of the secured debt.129 In other words, a duty to return the charged property did not have to be expressly agreed upon by the parties: it was sufficient that the debtor could demonstrate that property had been handed over by way of pledge to the creditor. This may explain why—in contrast with fiducia documents—we do not find contractual provisions on the return of the charged property in the pledge documents which have survived?30}

When one thinks in terms of ‘real contract' it is easy to regard the conventio pignoris as an anomaly in so far as it concerns a non-possessory pledge, or to confine the ‘real' nature to pledge agreements purporting to create a posses­sory pledge.131 This ‘real' nature of the conventio pignoris could then be used as evidence that originally pignus could only exist as a possessory pledge. But if one reads Gaius carefully, one can see that he does not characterize the con­ventio pignoris as a real contract but specifically indicates that the creditor's obligation to return the pledged property (after discharge of the secured debt) arises by transferring physical controlTh² It would, therefore, be more accur­ate to speak of ‘real obligations' rather than of ‘real contracts'. In other words, when the conventio pignoris purports to create a non-possessory pledge it is a valid contract, pursuant to which the parties can contractually agree to create certain rights (e.g., the creditor's right to sell the pledged property in case of default) and obligations (e.g., the debtor's assumption of risk). Only when the physical control of the pledged property is actually transferred to the creditor—at the beginning or at a later stage—does the ‘real' nature of the obligation to restore the property entail that it arises by operation of law.^[780] The contract to grant a non-possessory pledge is not an anomaly, nor is Gaius's remark that a creditor who received a thing in pledge is liable ‘through a thing' (D. 44.7.1.6) necessarily a remnant of the idea that the right of pledge could originally only exist as a possessory pledge.

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