Project assistance

Laws.Studio ©

info@laws.studio
 <<
↑
>>

Introduction

The archive of the Sulpicii provides evidence for an ancestor of another ‘modern’ variant of pledge. It seems that pignus already could exist as a non- possessory security right long before the second-century ad jurist, Julian, who is the author of the earliest legal opinions on the hypotheca granted nuda conventione.

The archive of the Sulpicii provides epigraphic evidence of a transactional practice of granting possessory and non-possessory pledges over goods stored in a warehouse, which took place without a transfer of physical possession (section 6.2). Also, the practice of granting of what were effectively non-possessory pledges in order to secure maritime loans may have its roots in late republican or early classical legal practices (section 6.3). From long before Julian, texts have been preserved in the Digest which can be regarded as witnesses of ancestors of the high and late classical hypotheca (section 6.4).

The transfer of possession through traditio would have originally served as a mode of transferring ownership to a creditor upon default (forfeiture). However, when it came to be accepted in the second century ad that the exer­cise of the creditor’s power of sale did not require him to be the owner, the traditio was no longer needed for this purpose. Thus, indirectly, the recogni­tion of the creditor’s independent power of sale may have paved the way for the pledge created ‘by mere agreement’(section 6.5). This hypotheca granted nuda conventione was the outcome of a long evolutionary process triggered by transactional practices. Julian’s main role may have been that he ‘codified’ the generalized formula of the actio Serviana. The fact that it appeared from the Edictum perpetuum that a right of pledge could be granted by mere agree­ment layed down a firm basis for future developments of the law of real secur­ity: the multiple pledge, pignus nominis, and the general pledge are all pledges which were granted nuda conventione. Not only in the personal (in personam) actiones pigneraticiae but also in the formula of the actio Serviana in the Edictum perpetuum, the conventio pignoris was the central element. This

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/9780199695836.003.0007 enabled contracting parties to adjust real security interests to their economic needs (section 6.6).

High and late classical legal sources still attest to the continuing use of cer­tain transactional practices with a ‘diluted' possessory element, which may already have been employed before the Edictum perpetuum was codified: pledge and lease-back and the handing over of title documents (section 6.7).

6.2

<< | >>
↑
Source: Verhagen Hendrik L.. Security and Credit in Roman Law: The Historical Evolution of Pignus and Hypotheca. Oxford University Press,2022. — 448 p.. 2022

More on the topic Introduction:

  1. Domingo Rafael. Roman Law: An Introduction. Routledge,2018. — 252 p., 2018
  2. Chapter 1 Introduction
  3. Introduction: Themes and Literature
  4. Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p., 1976
  5. Introduction
  6. INTRODUCTION
  7. Introduction
  8. Introduction
  9. Introduction
  10. Introduction
  11. Introduction
  12. INTRODUCTION
  13. INTRODUCTION
  14. Introduction
  15. Introduction
  16. INTRODUCTION
  17. INTRODUCTION
  18. Introduction
  19. Introduction
- History of state and law - Roman law -
- Advocacy - Agricultural law - History of the state and law - Theory of state and law -

Laws.Studio ©

info@laws.studio