Introduction
The value of certain assets as collateral and borrowers' access to credit could be enhanced if the law would allow security rights to be granted over the same property in favour of several creditors.
In particular where the liquidation value of a charged asset considerably exceeds the amount of the original secured debt, there may be sufficient residual value in the collateral for other creditors to be prepared to accept lower-ranking rights of pledge. Here, however, Roman law was rather slow to adapt to the needs of the credit markets. Although there is good reason to assume that non-possessory pledges were recognized relatively early, the recognition of their ‘logical sequel'1—the multiple pledge—has taken longer. For a considerable time the granting of a pledge would deprive the debtor (during the continuance of the pledge) of the legal power to grant other rights of pledge over the same pledged property (section 7.2). In the second century ad one way was found of getting around this: the pledge of the superfluum of the execution of the original pledge. Another was to recognize that subsequent rights of pledge could be granted conditionally (section 7.3). Later in the second century ad it came to be accepted that multiple unconditional pledges could coexist over the same property and that each creditor could institute the actio Serviana against any possessor of the pledged property (except creditors with a prior pledge). As a corollary of the multiple pledge, the right of lower-ranking creditors to take over the preferential position of higher-ranking creditors (ius offerendi et succedendi) originated (section 7.4). A veritable tour deforce was the extension by the jurists of this ius offerendi et succedendi to novation, where a creditor would succeed in his ‘own' original ranking. These evolutionary processes took place through trial and error. The persons who drafted the contractual clauses were not always perfectly schooled in the strict legal conceptions of the classical jurists.2 In the late classical period we even find transactional practices1 Kunkel 1973: 155.
2 Kaser 1976: 201. E.g. Tryph. D. 20.4.20; Marci. D. 20.4.12.8; Pomp. D. 13.7.2.
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/9780199695836.003.0008 associated with earlier periods, which were clumsily drafted (section 7.5). The obstacles for creating multiple layers of security only gradually disappeared, as a result of the constructive manner in which the jurists interpreted transactional practices. The multiple pledge again illustrates that the evolutionary history ofpignus and hypotheca is largely the product of an iterative relationship between practitioners drafting contractual clauses and the jurists accommodating these practices into the Roman legal system.
7.2
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
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