Introduction

In 40 ad a borrower from the Campanian port city Puteoli declared to his creditor:

If on the Ides of May I shall not give, pay or satisfy the above-mentioned 20,000 sesterces, then you will be authorised to sell at auction the grain in question under the terms of the pledge.

Two hundred years later, this contractual clause had evolved into a manda­tory rule of law, which almost 2,000 years later is still included in most (if not all) Western codifications.² Where the debtor fails to pay his debt in time, the creditor shall be authorized to sell the charged objects and shall be liable to pay any surplus proceeds (superfluum) to the debtor. What we see here is an example of how a contractual practice can trigger an evolutionary process leading to the formation of a legal rule. This is the main subject of this book, for which the classical Roman law of real security has been taken as a specific illustrative theme.³ Much variety in law is generated by transactional prac­tices, which are designed by legal practitioners in order to meet the economic demands of their clients.⁴ These transactional ‘legal variants' provide input to the legal system and may trigger legal change when they become the subject of litigation or (less frequently in Rome) legislation.⁵ There is no other legal institution than pignus and hypotheca where the formative effect of legal prac­tice can be so clearly observed.⁶

¹TPSulp 79. Original Latin text on p. 137.

² For example, art. 2346 French civil code, § 1228 German civil code, art. 2796 and 2797 Italian civil code and art. 3:250 Dutch civil code.

³ Inspired by Frier 1980: xvii.

⁴ For the purpose of this book ‘transactional practices' are contractual clauses, entire contracts, or multi-contractual constructions (e.g., a pledge agreement combined with a rental agreement), which are regularly used within a population.

⁵ But see Constantine's constitution outlawing forfeiture clauses (C. 8.34.3) discussed in section 11.5.

⁶ Kaser 1976: 172; Kaser 1982: 218.

Security and Credit in Roman Law: The historical evolution of pignus and hypotheca. Hendrik L. E. Verhagen,

Oxford University Press. © Hendrik L. E. Verhagen 2022. DOI: 10.1093/oso/9780199695836.003.0001

Much law finds its origin not in parliaments, justice departments, imperial chanceries, or court rooms, but in contractual and other (e.g., testamentary) transactional practices.^[7] As one of the founders of the sociology of law, Eugen Ehrlich, observed, transaction documents are ‘levers of legal development’.^[8] This book outlines the legal history of pignus and hypotheca in terms of an iterative relationship between transactional lawyers drafting legal transac­tions and jurists deploying their analytical skills and practical insights in order to accommodate new transactional practices into the Roman legal sys­tem. Legal rules which find their origin in transactional practices may have come into existence under the pressure of the particular interests of certain parties (e.g., bankers) having a stronger bargaining power and may be sup­ported by jurists who were members of a particular class.^[9] Legislation can correct or supplement the results of spontaneous evolution triggered by transactional practices, by imposing certain duties upon ‘stronger’ parties (e.g., to sell charged property and pay the surplus to the debtor) or invalidat­ing certain transactional practices (e.g., forfeiture clauses) in order to protect structurally weaker parties. This is what happened in the Roman empire. In the late classical period, although the law of real security did remain by and large creditor-friendly, the imperial chancery increasingly interfered with it in order to provide a considerable degree of protection to debtors. This aspect of legal evolution will not be ignored in this book.^[10]