Introduction
Throughout history the financial world proves to be a stimulating environment in complex societies for the origin and evolution of legal institutions. For ancient Rome one could think of constitutum debiti, receptum argentarii, set-off, and, most importantly, real security.
It would, however, be a mistake to associate pignus, hypotheca, and fiducia cum creditore exclusively with commercial lending by banks. Agriculture was the most important sector of the economic environment and it is no coincidence that it was this sector that triggered important developments in the law of real security. Specific late republican legal remedies for pignus—the interdictum Salvianum and (perhaps) the actio Serviana—were designed specifically for security granted to owners of agricultural estates by tenant farmers. Another republican legal remedy, the interdictum de migrando, demonstrates that real security was also important for the law of landlord and tenant in an urban context, both for living accommodation and for commercial real estate (e.g., tabernae).1 Real security was even frequently granted within the context of family relationships, for example to secure dowries, and in order to secure (tax and other) claims by the state. Nevertheless, although the other contexts will not be ignored, in this book the emphasis will be on how the law of pignus and hypotheca evolved in the context of commercial lending. Between the end of the third century and the middle of the first century bc, a ‘remarkable qualitative change in the structure of the Roman economy' took place.2 Not only was there a shift in agriculture towards commercialization and specialization but there was also a substantial increase in trade and commerce.3 These economic changes were accompanied by the development of financial1 Frier 1980: 105-35; Du Plessis 2007. 2 Kay 2q14: 2.
3 On investment farming and agricultural exploitation, see Kay 2014: 131-88; on trade, see Kay 2014: 189-213; on credit and banking, see Kay 2014: 107-28. By the mid-third century bc, manufacturing and commerce were significant in the city of Rome (De Ligt 2020: 93).
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/9780199695836.003.0004 intermediation and increased availability of credit.[270] From this time and during the whole of the Principate, ‘irritations' produced by the financial sector were significant stimuli for the evolution of the Roman law of real security. In this chapter, we will first look at the role of bankers and elite financiers in the Roman credit markets (section 3.2) and various forms of credit will be reviewed (consumptive, productive, and secured credit: section 3.3). Subsequently an overview will be given of several categories of valuable capital goods for important sectors of the Roman economy (agriculture, urban economy, maritime trade), which were financed and served as collateral (section 3.4). As will be shown at the end of this chapter, real security was significant not only for secured lending but also for the rural and urban rental markets (section 3.5).
3.2
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