Maximum rates from the end of the Republic until Justinian

It is clear from this vivid description that very drastic provisions do not always lead to a satisfactory state of affairs. In fact, they can sometimes be counterproductive. Sulla, therefore, in 88 B.C.

i. e. 12 % per year).⁷⁷'^[862] They were maintained, essentially unchanged,^[863] as maximum rates during the imperial times right down to the 6th century.^[864]" Alexander Severus enjoined senators not to charge interest, but soon thereafter a special limit, the usurae dimidiae centesimae (6 %), was fixed for them.^[865] Justinian, under the influence of Christianity, was not favourably disposed towards the charging ot interest. He tightened the usury laws and reduced the ordinary maximum rate to 6 % and to 4 % for senators.^[866] A special concession was made to those "qui ergasteriis praesunt vel aliquam licitam

' As to the terminology which was used for the various interest rates (sextans, i.e. the sixth part of 12 % = 2 %, quadrans = 3 %, etc.), cf. Ins!. II. 14. 5. In the Middle Ages the words "centesimae usurae" were taken to mean 100 % per year: cf. Wielmg, Interesse und Prii'dtstrafe, p. 199.

In 56 B.C., however, it was still possible for two Roman moneylenders (M. Scaptius and P. Matinius) to charge an interest rate of 48 % for a loan to the town of Salamis in Cyprus. The island of Cyprus had been conquered by the Romans (and added to the province of Cilicia) two years betore. The Salammians needed the money in order to bribe the Roman governor, P. Cornelius Lentulus Spinther. and thus to induce him not to billet his soldiers on them during the winter. A long drawn-out dispute arose as to when the loan had to be paid back.

But see Levy. ObUgationcni'echt. pp. 160 sqq.

Billeter, op. cit., note 71, pp. 267 sqq.

Codex TluvJpsianus. 2. 33, 4.

^M" C. 4, 32, 26, 2. Cf. Billeter, op. cit., note 71. pp. 306 sqq.; Managrazia Bianchmi, "La disciplina degli interessi eonvenzionali nclla legislazione giustmianca", in: Studi in oiwrv di Arnaldo Biscardi. vol. II (1982), pp. 391 sqq. negotiatioiiem gerunt": they could charge up to 8%.^8JI Regarding policy, it is interesting to see that the problem of usury was tackled in Roman law by way of penal sanctions."⁴ Like all statutory prohibitions in early law,^{[867] 78 * * * * [868] [869] [870] [871] [872] [873] [874]} the usury laws were not "perfect",^Sf) that is, as long as the correct form had been observed, the illegal act was not invalid. However, according to classical law, the debtor did not have to pay the usurious rate of interest:

"Placuit, sivc supra statutum modum quis usuras stipulatus tucrir sivc usurarum usuras.*⁷ quod illicite adicctum est pro non adiccto haberi et licitas peri posse."⁴⁴

The contract was still valid, but the borrower had to pay only the legal maximum rate. Marcianus arrived at this result by introducing a legal fiction: he treated the stipulation as it the parties had made a core stipulation, involving this legal maximum, to which the illegal part exceeding it had then been added. Thus, one only had to subtract this illegal addition ("pro non adiecto haberi"). This operation did not constitute a major interference with the contractual agreements of the parties: particularly the right of the creditor to claim back his capital remained, ot course, entirely unaffected;⁸" mutuum and interest­stipulation were two separate contracts. It the excessive interest had already been paid by the borrower, the excess was credited against the capital; if it exceeded the capital or if it had been paid per errorem, it could be reclaimed:

"Usurae supra centesimum solutae sortem minuunt, consumpta sorte repeti possunt, usurae, quae centesimam excedunt, per errorem solutae repeti possunt."⁴⁰

3.