Introduction
For a long time, it was purely at the creditor's discretion whether or not recourse would be taken against the charged assets by selling them (at auction or otherwise) and returning any surplus to the debtor.
Such a creditor-friendly legal regime could discourage certain persons from borrowing and could thus reduce the demand for credit.1 The growth of the credit markets and the increasing use of real security may during the course of the Principate have provided stimuli for gradually improving the position of the debtor, in the sense that execution sale would become the general rule and that the creditor became obliged by operation of law to pay the superfluum to the debtor.2 Manigk has observed that in all ancient legal systems this evolution from forfeiture pledge to a pledge enforceable by sale takes place entirely through party autonomy (‘privatautonom), and not as a consequence of legislative intervention.3 In this chapter we will see that for Roman law this is largely, but not completely, true. It was the praetor, who—in accordance with jurisprudence— will at some stage have imposed a mandatory duty upon the creditor to pay the superfluum to the debtor and the emperor did intervene by ordering that enforcement should take place by way of execution sale. However, even here it can still be observed that these late classical rules on enforcement find their origin in transactional practices, as we encounter powers of sale coupled with provisions on surplus in documents dating from the first century ad.This evolution from forfeiture to sale entailed that in high and late classical law forfeiture was no longer the general rule (section 11.2). The secured creditor would normally take recourse by selling the charged property to third parties, but even at the end of the classical period such a sale could also take place to the creditor himself.
Where the monetary system itself malfunctions (due to heavy inflation) creditors may be more interested in the physical assets or their products than in realizing their monetary value. In this chapter1 Lerouxel 2016: 245. 2 Kaser 1982: 213. 3 Manigk 1941: 1264.
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/9780199695836.003.0012 we will examine how (express and constructive) forfeiture arrangements—datio in solutum (section 11.3) and conditional sale (section 11.4)—can be reconciled with the evolution of pignus and hypotheca into a security interest, which was enforceable by sale and pursuant to which the creditor could only take recourse for the amount of the secured debt. The conclusion for classical law is that during the entire classical period forfeiture arrangements were deemed legally valid, possibly at first as express forfeiture clauses and over time as constructive forfeiture arrangements. It seems, however, that at the end of the classical period forfeiture arrangements, under which the surplus value accrued to the creditor, became invalid. Under emperor Constantine leges commissoriae were expressly declared void in 320 or 326 ad (section 11.5).
11.2
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