Introduction

Once it was accepted that a pledge could be created nuda conventione and over tangible and intangible property, the path was cleared for recognizing a pledge of all the assets which were from time to time part of the debtor's patrimony.

For centuries the general pledge has given rise to two questions (which are still relevant and controversial today): what was its object and what were its legal consequences?³ The most plausible answer to the first question is that the general pledge's object was the debtor's entire patrimony rather than a class of assets within that patrimony (generic pledges). As to its legal consequences, controversial in modern literature is the question of whether the debtor could freely dispose of generally pledged assets without the pledge continuing to encumber them. A negative answer to this question would mean that the gen­eral pledge could have seriously disrupted commercial intercourse in the

¹ Wagner 1968: 8 n 59.

² Cf.

³ Wubbe 1960: 224. On the general pledge in classical and Justinian Roman law, ius commune, and modern laws, see Van Hoof 2015 (in Dutch with summary in English).

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/9780199695836.003.0010 Roman empire. If all the debtor's present and future assets were pledged, any purchaser of these assets could be confronted with a secured creditor tak­ing away these assets, even when he could not reasonably have been aware of the pledge.^[962] We will see, however, that the general pledge may have created an equilibrium between, on the one hand, the secured creditor's interest of hav­ing a preferential right of recourse against the assets comprising, from time to time, the debtor's patrimony, and, on the other hand, purchasers' interests of acquiring assets free from a security interest. This equilibrium is essentially the same as that reached by modern rules allowing debtors to sell charged assets free from the charge in the ordinary course of business. In this chapter we will first look at generic pledges as ancestors of the general pledge (section 9.2). The origin of the general pledge, via the intermediate stage of the so-called cetera bona pledge (which was a special pledge combined with a pledge of all the debtor's other assets), will then be examined (section 9.3). In the remaining sections of this chapter the legal consequences of the general pledge will be reviewed (sections 9.4-9.8). It will appear that the Roman gen­eral pledge can be regarded as a ‘floating' charge of all the assets which were from time to time in the debtor's patrimony.

9.2