Incoming Goods: Pledge of Future Property

Special pledges of future property: fruits, offspring, and products

As we can already observe in Cato's templates, future crops could also be pledged separately, without the creditor being granted a pledge of the land yielding the crops. Likewise also, the future offspring of slaves and the young of animals could be pledged independently from their mother.

In D. 20.4.11.3 Gaius holds that where the conventio pignoris purports to pledge natural fruits (e.g., crops), it is sufficient that the assets producing these fruits (e.g., agricultural land) are in bonis of the debtor at the time it is entered into. Accordingly, where pledged harvested crops were sold and delivered by the debtor to a third party, the creditor to whom they were pledged could recover them with the actio Serviana. This would be different, however, when at the time crops were harvested, the land was no longer owned by the debtor. This is confirmed in Pap. D. 20.1.1.2, which also says that if the purchaser in good faith has consumed the pledged fruits then the (analogous) actio Serviana cannot be successfully instituted against him?⁴ It is not so strange that the Roman jurists saw no difficulty in allowing future crops, newly born animals, and slave children to be pledged in advance. They all have their roots in property to which the debtor (as owner) was entitled at the time of the conventio pignoris and they are owned by no one else.^[1047] The clause recommended by the early classical jurist Cassius in D. 13.7.18.3, that ‘whatever things are the creation from and product of the wood' will be pledged, is based on the same idea. Although these products were not regarded as identical to the pledged wood itself and were not automatically subject to the pledge thereof, they do have their origin in property which was owned by the person who granted the pledge and could, therefore, be pledged.

Special pledges of future property: res debita

‘Absolute' future property (i.e., assets which do not yet exist) could therefore be pledged if it was generated by assets which were already owned by the debtor. This is different, however, in respect of ‘relative' future property. These are assets which physically already exist as separate objects, but which at the time of the pledge agreement are still owned by someone else. When someone else's property had been pledged and the property was afterwards acquired by the debtor (for instance, through purchase or inheritance), a ‘convalescence' of the originally imperfect pledge could take place. The creditor would be granted an adapted actio Serviana (utilis), by means of which the pledged assets could be recovered from possessors?^[1048] According to Papinian (in D. 20.1.1 pr.) in this adapted action the condition of in bonis debitoris esse could only be relaxed (i.e., shifted forward in time) when, at the time of the pledge agreement, the pledged property was already owed to the debtor (res debita). When the debtor had concluded a pledge agreement in respect of property which had already been purchased by (but not yet been conveyed to) him, the creditor would upon conveyance by the seller to the debtor automat­ically acquire an enforceable right of pledge on the property. One could regard this as an extension of the idea behind the pledge of fruits and offspring. Here also the debtor did already have, at the time of the pledge agreement, a legally relevant ‘expectation' in respect of the pledged asset. Where the debtor has a claim for its conveyance against a seller, the pledged object is already in the ‘run-up of his in bonis’.^{[1049] [1050] The debtor could have pledged this claim (pignus nominis) to the creditor?8 This claim could then be enforced by the creditor against the seller." Upon delivery by the seller to the creditor, the latter would then acquire a possessory pledge of the purchased property.100 If this were the case, it is only a small step to recognize that also in the absence of a pledge of the claim for conveyance, the pledged property would become charged upon its acquisition by the debtor.}

General pledges and future property

In all the texts up to and including Papinian recognizing pledges of future property, the debtor already had a legally relevant expectation in respect of the pledged future assets, as fruits or offspring of assets already within the debtor's patrimony, or as things already owed to the debtor (res debita). This will have lowered the threshold for accepting that these assets automatically became subject to the pledge once they were acquired by the debtor. The same may have been true for generic pledges, extending to new elements of aggre­gates of things already owned by the debtor (invecta et illata, grex, taberna). This idea may later have spilled over to general pledges. Moreover, a general pledge is by its very nature geared towards after-acquired property."¹² This may have been the most important reason why it was not even necessary that a legally relevant expectation existed. Originally, however, the scope of the general pledge may have been confined to the assets which the debtor owned at the time of granting the pledge. It has been suggested that, under the influ­ence of Hellenistic practices, transactional practices were only later extended to future goods.10³ The transactional practices on which jurists' opinions were based all expressly mention future goods."¹⁴ Wagner inferred from this that no indication for this in the text. With regard to a similar fragment on convalescence— Pap. D. 20.4.3.1—also Potjewijd (1998: 117 n 46) admits that only the asset itself had been pledged and not the claim for its delivery.

⁹⁹ Paul. D. 13.7.18 pr.; Marci. (Pomp.) D. 20.1.13.2. 100 Section 8.3.

101 Wacke 1997: 451. 102 Wacke 1997: 451-2.

103 In particular, Frezza 1963: 171. See also Wagner 1968: 6 n 46. Taubenschlag (1955: 125 n 88) refers to the Roman-Egyptian practice of husbands pledging all their—present and future—assets for the obligation to maintain their wives. See also P. Yadin 10 and 17 from the Babatha archive. In Byzantine legal practice we find general pledges drafted in Greek which were strongly influenced by Roman general pledges (Wagner 1968: 6 n 46).

104 Gai. D. 20.1.15.1 (quae nunc habet et quaepostea adquisierif); Scaev. D. 20.1.34.2 (quidquid in bonis habet habiturusve esse(); Pap. D. 20.1.1 pr. (bonorum velpostea quaesitorum recepta est); Ulp. D. 20.4.7.1 (quae habiturus sum obligaverim’); Ulp. D. 49.14.28 (obligaverat quae habet habiturusque originally the agreement to pledge the debtor's entire patrimony would fun­damentally not cover the debtor's subsequently acquired property and that later this would (perhaps subject to a limited number of exceptions) require an express agreement.¹⁰⁵ From the jurists' opinions, in any case, it can be derived that in order for the general pledge to extend to future assets, this had to be expressly agreed.10⁶

Where the creditor tried to recover possession of assets generally pledged to him, the demonstratio in the formula of the adapted actio Serviana would have been changed. Gaius D. 20.1.15.1 says that in the case of general pledges the creditor did not have to prove that the goods were in bonis of the debtor ‘when he made the agreement'. This still leaves open the possibility that where the actio Serviana was instituted against third parties it was required that the future assets had entered the patrimony of the debtor after the pledge was granted. One would indeed expect that the creditor could only recover pledged goods from third parties if, in the period between the conclusion of the conventio pignoris and the commencement of the actio Serviana proceed­ings, they would have become part of the debtor's patrimony (in bonis). Only in that event would a right of pledge have come into existence which the creditor could enforce against third parties with the actio Serviana.

Pap. D. 20.1.1 pr. and Marci. D. 20.1.16.7

In late classical law it was finally accepted that the creditor and debtor could deliberately grant a special pledge over someone else's property. The right of pledge would be granted ‘subject to the condition that it shall have become the debtor's'.¹¹¹⁷ it was no longer required that the debtor had—at the time of the pledge agreement—a legally relevant expectation, nor would the creditor's knowing that the debtor did not own the pledged asset be an obstacle to the perfection of a pledge.10⁸ Pap. D. 20.1.1 pr. and Marci. D. 20.1.16.7 could be esse(). See also Fragm. de iure fisci 5, FIRA II: 628 (non solum ea quae habent, sed et ea quae postea habituri sunt).

105 Wagner 1982: 415.

106 Wagner 1982: 415. See also Gai. D. 20.1.9 pr., as convincingly emendated (in bonis habui() and interpreted by Wagner 1968: 127-30. In the sixth century ad Justinian considered it still necessary to decree (perhaps in accordance with then prevailing practices) that if the debtor had stated that he pledged ‘his assets' without the addition ‘both present and future’ the general pledge would cover future assets too (Just. C. 8.16.9.1).

107 Marci. D. 20.1.16.7 (‘sub condicione, si debitoris facta fuerif). See also Ulp. (Marcell.) D. 20.4.7.1; Diocl.-Max. C. 8.15.5.

108 The condition itself would imply such knowledge. Van Hoof considers it odd that the limitation of res debita imposed by Pap. D. 20.1.1 pr. could be so easily circumvented, by granting the pledge reconciled by holding that a conventio generalis in pignore dando would by its very nature imply the condition that the right of pledge was conditionally granted in respect of property to be acquired in the future. What is dubious about this assumption is that the first texts on the conditional (special) pledge of future property are from the late classical period.¹⁰⁹ In Ulpian D. 20.4.7.1 the debtor declared: ‘I charge in your favour my future assets and also spe­cially charge certain land, should it become mine, in favour of Titius.' This shows that in late classical law the (unconditional) general pledge was still distinguished from the (conditional) special pledge of a future asset. In other words, the general pledge was not regarded as an implied conditional pledge.

From a chronological perspective it is therefore questionable to explain the general pledge of future goods in terms of a conditional pledge as later con­templated by Marcian. Future assets which were not rooted in the debtor's patrimony could not yet be specially pledged at the time of Papinian, not even conditionally. They could only be pledged by way of generic or general pledge. Pap. D. 20.1.1 pr. and Marci. D. 20.1.16.7 represent different evolutionary stages of the special pledge: while possible only to a limited extent at Papinian's time, Marcian later recognized that all future property could be specially pledged. This principle may have evolved in order to narrow the gap between special and general pledges in this respect. Only under Diocletian, it seems, the imperial chancery did not even require that the granting of the special pledge was framed conditionally by the parties. A constitution from 286 ad rules that the actio Serviana itself did not lie where the debtor had pledged an asset of which he became the owner after the pledge was granted. Nevertheless, equity implies that an actio utilis is given by analogy with the actio Serviana.¹¹⁰ What this constitution does show, however, is that at the end of the third century AD the special pledge of property subsequently acquired was still regarded as a special problem, which had to be solved by granting the creditor an action on the case on the basis of equity.¹¹¹ The general pledge was not a variant of a conditionally granted special pledge of future property but may rather have been one of its ancestors.“²

conditionally, and therefore argues that Marcianus's conditional pledge was confined to res debita (Van Hoof 2017: 480-1). There is no indication for this in the sources.

109 Wubbe 1960: 227.

110 Diocl.-Max. C. 8.15.5 (‘sed tamen aequitatem facere, ut facile utilispersecutio exemplopignorati- ciae daretur).

111 For example, Marci. D. 22.3.23: the creditor who institutes the actio Serviana must not only prove the conventio pignoris, but ‘he must also show that the property was the debtor's at the time of agreement' (‘illud quoque implere debet rem pertinere ad debitorem eo tempore quo convenit de pignore').

112 Wubbe 1960: 227; Wagner 1968: 6.

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