Loans to merchants involved in overseas trade
(a) Pccunia tvaiecticia as a form of marine insurance
It has been said above that the borrower remains liable even though he might have lost what he had received by fire, earthquake or shipwreck.
The risk, as a matter ot course, was on the borrower/owner. Yet, there was one situation in which the capital was supposed to be at the risk of the lender: pecunia traiecticia[934] or, to use the more accurate post-classical term, fenus nauticum.177 This was a loan of money given to a merchant involved in overseas trade, who lacked the capital to buy the merchandise and to ship it at his own risk. Sea voyages on the Mediterranean were dangerous in Greek and Roman times because of storms and pirates17" and the average merchant therefore looked for some kind of marine insurance. This was the function served by fenus nauticum: the money had to be repaid only if the ship arrived safely in port with the cargo on board (si navis intra certum tempus pervenerit in portum). Usually, the loan was given for both the voyage out and the return journey: the merchant would use the money to buy articles suitable for exporting at the port of departure, in order to sell them overseas. He would then avail himself of the proceeds to import other articles on the homebound journey. Because of the risk which the lender assumed, the rate of interest, up to the time ofjustinian, was not limited;[935] [936] to charge high interest rates was not regarded as objectionable and usurious as it was not merely a compensation for the use of the capital but a premium periculi,1H1) an equivalent for the assumption of the risk of the various maritime vagaries.1111 We do not know what rates were in accordance with ordinary trade usage in Rome; Greek moneylenders during the 4th century B.C. charged between 22- and 33A per cent depending on the distance to be covered by the ship.[937] The merchants, of course, were sometimes tempted to avoid having to pay- such large parts of their profit margin to the lender; thus we read of feigned shipwrecks and intentional sinkings of the ships concerned.[938] To avoid manipulations of this kind, the lender usually sent one of his slaves to take part in the whole voyage.(b) Greek custom and Roman practice
This form of marine insurance by way of fenus nauticum, like most Roman rules of maritime law, came from the Hellenistic East. The Greek bottomry loan was essentially based on the idea of surrogation.[939] [940] Otherwise than in Roman law, the lender still seems to have been entitled to the capital, even after it had been handed over. Likewise, he was entitled to whatever was bought with this money. Thus the merchandise was regarded as pledged to him. If the goods got lost during the sea journey, the creditor had lost the object to which the liability of the borrower attached and, as a consequence, his claim for repayment fell away too. The Roman lawyers seem to have had certain difficulties in accommodating this foreign custom and translating it into the terms and concepts of their law.183 That is apparent, for instance, from the term "pecunia traiecticia" and from the definition given by Modestinus: "Traiecticia ea pecunia est quae trans mare vehitur. 1,1 [941] This statement does not reflect the main characteristic of the transaction, namely the assumption of risk on the part of the lender. But even on a descriptive level it is inaccurate,[942] for it was normally not the money that travelled overseas (that would not have been a very meaningful form of a fenus nauticum because it would have exposed the money to the perils of the sea without using it to yield a profit); it was the merchandise bought with the borrowed money that was in danger of perishing in one o( the many possible maritime disasters. Nevertheless, Roman practice followed the Greek custom (in classical times some sort of ius gentium of all seafaring nations) very closely.!8fl An instructive example is the detailed account by Quintus Cervidius Scaevola of a transaction concerning a merchant by the name of Callimachus.11H Stichns, a slave of a (Roman) moneylender, had handed over a certain sum of money as a loan to Callimachus in Berytus. The latter was supposed to buy merchandise and to ship it to Brentesium (Brindisi); there he had to sell the goods, use the proceeds to buy import articles and ship them back to the home port, Berytus, Both the merchandise bought in Berytus and that acquired in Brentesium served as a pledge for the lender's claim and travelled at his risk.1911 Callimachus, furthermore, was liable for the maintenance of the lender's slaves accompanying the transport (in the end, however, only the slave Eros took part in the voyage). Finally, the loan had been given to Callimachus for a maximum period of 200 days, within which both the outward journey and return trip had to be completed. However, it was also agreed that he had to leave Brentesium intra idus Septembres, i. e. on or before 13 September, and to head back directly to Syria.191 The whole of the contract was affirmed by way of stipulation;1"2 observance of the right time of departure from Brentesium was secured by stipulatio poenae: if Callimachus should still be in Brentesium on 1Ü× Scaev. Ï. 45. 1, 122, 1. On the fragment, sec Ulrich von Liibtow. "Das Seedarlchen des Callimachus", in: Festschrift fur Max Kaser (1976), pp. 329 sqq.; Purpura, (1987) 39 Amiali Palermo 212 sqq., 301 sqq. Generally on pledges in connection with tenus nauticum. Litewski, (1973) 24 lura 169 sqq. An interesting case (Paul. I). 22. 2, 6) is discussed by Robert Rohle, "Zum Beispiel D. 22, 2, 6", (1979) 45 SDH1 549 sqq. He vindicates the exegesis given by Cuiacius (Conmtcnttirii in Lib. XXV Quaest. Pauli, col. 1216 sqq.) against modem interpretations. The key to the solution is the acccssoriness of pignus. Cf. also Purpura, (1987) 39 Aiuiali Palermo 273 sqq· This date of departure from Brindisi had to be specifically agreed upon in view of the fact that the period of 201) days might otherwise have run into the winter season, during which the seas were "closed" (Vcgetius. 142 Generally on the form in which a tenus nauticum was concluded. 14 September, the whole ot the capital plus interest would become exactable "quasi perfecto navigio".[943] This transaction contains all the typical elements of a fenus nauticum;[944] of course, many variations were possible. Thus, we find an ingenious combination ot fenus nauticum and commercial partnership in Cato's moneylcnding transactions/[945] He gave the capital to one of his liberti (a certain Quinctius) who had to get together 50 shipowners and merchants for the purpose of overseas trading. Thus, the partners could share the risk involved; if one of the 50 ships sank, the proportional share of the loss for each of them was only —. Cato, who incidentally was not very keen on voyages by ship himself,[946] has been criticized by his biographer, Plutarch, for indulging in this "most condemn able of loan transactions" (namely fenus nauticum). Such an evaluation, however, does not do justice to a man whom Livius reters to as "vir sanctus et innocens'"1'[947] [948] and who has gone down in history as the epitome of Roman austerity and uprightness; it is based on an unRoman perception of business activities involving the loan ot money on a commercial basis as something dishonest and discreditable/7* Writers in later centuries struggled to comprehend dogmatically and fit in the fenus nauticum;[949] nevertheless, it continued to be practised. During the time of the usus modernus, it came to be amalgamated with the medieval bottomry loan.200 3.
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