Introduction
In economies where debts are valuable and saleable assets, they will also have value as collateral. The first evidence of the pledge of debts (pignus nominis) is from the second century ad (Pomponius), but its origins may lie in an earlier period, perhaps even in the Republic.1 The pledge of claims may have originated as a pledge granted by handing over the documents evidencing the debt to the creditor.
This is, however, certainly no longer the case in high and late classical law, where pignus nominis (even if accompanied by the delivery of debt instruments) is a variant of a pledge granted nuda conventione (section 8.2). The praetor would protect pledge agreements in which the pledged assets were not defined as movable or immovable property but rather as contractual claims owed by third parties to the debtor (section 8.3). In particular where the pledge creditor was entitled to demand payment from the debtor's tenants, pignus nominis is not always easy to distinguish from a so-called anti- chretic pledge of leased real estate.2 From the third century ad we have evidence that the granting of a pledge could be accompanied by an agreement pursuant to which the creditor was entitled to use the charged property (houses, agricultural land, slaves) and to take its (natural or civil) fruits (section 8.4). The value of the use or the fruits would then serve as payment of principal or interest. This type of arrangement is since the Middle Ages commonly referred to as antichresis, although in the Corpus iuris civilis itself this term is used only twice.3 Late classical Roman law knew three variants of antichresis: implied, default, and independent antichresis.For both variants of pledge—pignus nominis and antichresis—the jurists were prepared to introduce drastic innovations in order to give legal effect to a conventio pignoris, or an independent pactum antichreticum, which allowed
1 In this chapter (and elsewhere in this book) I will speak interchangeably of the pledge of ‘claims, ‘debts, or ‘receivables,
2 See in particular Ulp.
D. 20.1.20 (section 8.2).3 Marci. D. 13.7.33 and D. 20.1.11.1. For a comparative account of antichresis in the papyri of Roman Egypt and in classical Roman law, see Bobbink and Mauer 2019.
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/9780199695836.003.0009 the creditor to demand payment of debts owed to his debtor. The actio utilis derived from the actio Serviana was an actio in personam with which the creditor demanded payment of debts owed to the debtor, despite the fact that the actio Serviana itself was an actio in rem with which the creditor sought to recover possession of the pledged asset. Moreover, the formula of the actio Serviana was also adapted in order to make independent antichresis enforceable, pursuant to which the creditor was entitled to use property and take its fruits independent of a right of pledge.
8.2
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