Introduction
The two centuries from 300 to 100 bc are ‘the darkest period of Roman law’.1 For the period before 300 bc we have the (reconstruction of the) Law of the Twelve Tables and for the period after 100 bc, in particular, the writings of Cicero provide a wealth of information on Roman law.
But for pignus and hypotheca even these sources do not yield much.2 But fortunately there are other sources from the Republic from which we can extract data concerning the early evolution of pignus. The ‘Catonian pledges' are ancestors of a form of pledge that later was crucial for the evolution of a full-fledged right of pledge: the tenant’s pledge of invecta et illata (sections 4.2 and 4.3). In a sense one could even say that many features of the fully evolved right of pledge of the classical period find their origins here (or in the templates used by Cato himself): an early and important example of transactional practices with formative effect. For the first century bc the sources again are scarce, although precisely in this final period of the republican age decisive events took place for the evolution of pignus. For the first time in the history of Roman law specific legal remedies were developed for pignus in late republican law. One of these remedies was the interdictum Salvianum, which was a prohibitory interdict that gave the landlord permission to remove pledged assets from the leased farm or land (section 4.4).3 The interdictum de migrando is an early example of a remedy which protected the debtor (tenant) against abuse by the landlord of his right to lock out the tenant. Not long after the introduction of these interdicts, the actio Serviana was included in the praetor’s edict, perhaps originally exclusively for tenant’s pledges, so that in the first century bc at least this form of pledge had evolved into a full-fledged right in rem (section 4.5).1 Watson 1971: 3.
2 For the first century bc Cicero does not give us much information onpignus, other than occasional references to hypotheca and forfeiture in a Hellenistic environment. See section 5.2. For the reconstruction of the actio fiduciae Cicero’s writings are important: see Noordraven 1999: 286-339; Bertoldi 2012: 24-30.
3 Krämer 2007: 198.
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/9780199695836.003.0005
In republican law a second form of real security originated: fiducia cum creditore. Where Gaius writes that fiducia is entered into with a creditor by way of right of pledge', this may be an echo from an earlier period in which fiducia was regarded as a species of the genus of pignus.[382] In any case, because of their functional identity, pignus and fiducia gave rise to similar legal problems for which the classical jurists found similar solutions. Therefore, although this book is on the evolution of pignus and hypotheca, fiducia cannot be ignored. At the end of this chapter, I will not only look at the origin and early evolution offiducia cum creditore in the Republic (section 4.6) but also outline its historical and structural relationships with pignus in the classical period (section 4.7).
4.2
More on the topic Introduction:
- Domingo Rafael. Roman Law: An Introduction. Routledge,2018. — 252 p., 2018
- Chapter 1 Introduction
- Introduction: Themes and Literature
- Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p., 1976
- Introduction
- Introduction
- INTRODUCTION
- Introduction
- Introduction
- Introduction
- INTRODUCTION
- Introduction
- Introduction
- INTRODUCTION