INTRODUCTION: SECURING A LOAN IN THE LATE BYZANTINE PAPYRI

Modern scholarship has devoted much attention to pignus and hypotheca as forms of real security in classical Roman law.¹ The same could be said about the research on the practical application of these forms, or vice versa, the apparent practical origins of the later dogmatic forms: there has been an extensive study on real securities in Greek and Hellenistic traditions.

Obviously, this type of collateral, called in the German doctrine Sicherungsübereignung,^[452] which consists of a (conditional) surrender of the debtor’s property to the creditor, is not limited to Byzantine Egypt. Any scholar of Roman law will recall the original form of the Roman real secu­rity, fiducia, still practised under classical Roman law - yet erased from the Codification.^[453] There are also, quite naturally, Graeco-Egyptian counterparts of the same. The Ptolemaic and early Roman documents provide us with information about the so-called ‘purchase on trust’ (ώνη έν πίστει).^[454] In the deeds documenting these sales, nothing hints at their fiduciary character; they were, however, accompanied by a corresponding loan document, sometimes written in the second column of the sheet of the papyrus.^[455] Had the latter not been preserved, we probably would not be able to detect the mock character of the sales. It has been argued that evolution of ‘purchase on trust’ was due to two distinctive but teleologically similar forms of sale upon redemption practised in mainland Greece^[456] and the Demotic ‘mortgage’ (yet it is not certain whether the latter actually temporarily preceded the ‘sale on trust’).^[457] Another interesting counterpart of Sicherungsübereignung were the Demotic conditional sales,^[458] whereby the transfer of property was condi­tioned by the non-repayment of the loan on time (hence a form quite similar to the Roman lex commissoria).

The function of the examples that I will discuss here is identical to the above-mentioned cases. Yet, they differ from the ‘sale on trust’, demotic conditional sale, or Roman fiducia. Unlike them, they never expressively refer to any sum lent, there is nothing that suggests that any separate loan agreements have ever been made. In fact, the only reason to interpret them as guarantees rather than typical deeds of sale is the fact that they all constitute part of what modern papyrologists, following Alain Martin, describe as an archive, that is, they pertain to the same person or persons and were assem­bled together and selected already in Antiquity. It is therefore the context of each particular archive, which is not necessarily visible in these papyri, that reveals their true nature.

I will analyse three cases of such securities from two different archives. In order to present some conclusion, I will compare these with an instance of an actual pledge/mortgage¹⁰ dated to late Antiquity as well.

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