Origin of Fiscal Pledges

Ptolemaic Egypt knew the protopraxia (npwronpaifia), a preferential right over all the taxable person's assets in favour of the royal treasury. In the first two centuries ad this preferential right was maintained in the Roman province of Egypt.

There is even a provincial edict by a Roman prefect on the enforceability of the protopraxia. Wieacker in particular has tried to demonstrate that a number of imperial constitutions which seem to be concerned with Roman fiscal pledges were actually concerned with protopraxia.^[1124] According to other Romanists it cannot be proven, and it is unlikely, that an imperial legal pledge evolved from legal institutions from the eastern Mediterranean (which themselves were derived from Hellenistic examples).^[1125] There are certainly originally Roman legal institutions which can be regarded as forerunners of the late classical fiscal general pledge, but whether they are really its ancestors cannot be proven. The direct ancestor of general pledges arising by operation of law in favour of the treasury appears to be the conventional general pledge.

Purely Roman origins?

There are candidates for indigenous Roman ancestors of the fiscal general pledge. One of these ancestors could perhaps have been the subsignatio praediorum. Local magistrates would enter into contracts with citizens on tax farming (publicani), concessions (e.g., fishery), and contracts for the building of public works. The amounts to be paid for acquiring these contracts from the municipality were often so large that Roman citizens would form partnerships to exploit these contracts with municipalities. The contract itself would, however, be entered into with one partner only (the so-called manceps). The Republican state treasury (aerarium populi Romani) or local treasuries could also grant loans to individual citizens.^[1126] In all these cases the contractual counterparty of the state treasury or municipality would be required to grant security in favour of these public creditors.^[1127] From Puteoli we have an early— second century bc—reference to this legal institution.

A document setting out the terms and conditions for public construction contains the following term:

Lex parieti faciendo in area quae est ante aedem Serapi trans viam: qui redemerit praedes dato praediaque subsignato duumvirum arbitratu.

Contract for making a wall in the area in front of the temple of Serapis across the road. He who acquires (the contract) shall provide praedes and register praedia as requested by the duumvirs.^[1128]

In modern literature this special form of (personal and real) security is often referred to as cautio praedibus praediisque or ‘praediature’.^[1129] ^{^[1130] This was not a private law institution but rather a charge arising under public law.“ Nevertheless, there is an almost perfect analogy with security subject to private law. As in private law there is a clear distinction between personal and real security. In all legislative sources the term praedes (sing.: praes) refers to the persons engaging themselves for someone else's debts to the state or municipality. In the case of tax farming, building contracts, and other commercial contracts, the partners of the citizen who had contracted with the authorities are likely to have acted as such guarantors.^[1131] The term praedium refers to real security (subsignatio praediorum),^[1132] ^{^[1133] ^[1134] ^[1135] ^[1136] giving the state special rights of recourse against one or more specific immovable properties of the grantor of this form of security. This form of public real security is—like conventional pignus—clearly an encumbrance on the property owned by the grantor of this security interest. Like conventional pledges, it would in practice be enforced by selling the charged property, so that the secured debt could be satisfied out of the proceeds of the sale. The earliest surviving municipal laws which mention this form of public charge date from the first two centuries bc. The institution is, however, said to be rooted in practices which already existed for many centuries and which may go back to the beginnings of the Republic.1⁴ Its continuing use is attested by the sources until the end of the first century ad/⁵}}

The grantor of this special security interest would remain in possession of the charged real estate, so that we are dealing with an early manifestation of non-possessory security?⁶ Although it is not possible to determine whether this security interest has actually contributed to the recognition of the hypotheca as a private non-possessory pledge?⁷ the subsignatio praediorum might historically be related to pignus, hypotheca, and fiducia cum creditore.

According to Biscardi, the ‘primordial concept' of obligatio rei extended not only to pignus, hypotheca, and fiducia cum creditore but also to praedia subsignata and other forms of ‘real liability' (such as assets sold subject to lex commissoria or slaves encumbered with noxal liability)^⁸ It expresses that a thing is ‘liable' for recourse by a creditor. In a document from the first century ad, recording a fiducia cum creditore (TH 65), the debtor swears (‘iuravit’) that the mancipated slave girl is ‘neither publicly nor privately charged' (‘in publicum privatumve ob[lig]atam esse'). This could be a reference to publicly charged slaves who were resident on praedia obligata.^[1137] The praediature was, however, not a general charge over all the debtor's present and future assets.^[1138] ^{^[1139] ^[1140] ^[1141] ^[1142] Fragmenta de iurefisci
Another potential ancestor is from the Augustan period?¹ The Fragmenta de iure fisci (§ 5) contain the following provision:
Bona e qui cum fisco contrahun...e uacuaria [vicesima] velut oris iure fisco otur, non solum ea q habent, sed ea quae postea habituri sunt.22
The goods of those who contract with the fiscus by the law regarding the vacua [vicesima] are charged to the fiscus, as it were by right of pledge, not just those which they have, but also those which they will acquire later?³
If the reading of ‘lege vicesima’ (emendation by Bocking) is correct, the lex lulia de vicesima hereditatum (6 ad) would have introduced a form of fiscal pledge securing the rent payable by tax farmers (publicani) for the right to collect inheritance tax?⁴ This tax was introduced for the aerarium militare, which functioned as a pension fund for veterans. It has, however, been argued that the fragment actually did read ‘lege vacuaria' (not ‘lege vicesima’), which has been connected with a lex in vacuum vendendis as appears in the municipal laws of Irni and Malaca?⁵ A sale in vacuum by local magistrates could take place under more relaxed rules when an execution sale in accordance with the rules for praedia obligata failed to produce a purchaser?⁶
The fragment stems from a work from the late classical period and originally it may not have concerned a pledge of all the debtor's assets at all.
Wagner holds that the scope of this fiscal pledge was originally confined to tax farmers' praedia and this Augustan statutory pledge may have partly replaced the subsignatio praediorum.^[1143] Its main significance for the history of fiscal pledges is that it is an early example of a right of pledge arising by operation of law in order to safeguard the payment of debts due to the treasury, although not necessarily a general one. Fiscal pledges evolved into general pledges only after conventional general pledges were recognized. In other words, the present text of § 5 of the Fragmenta de iure fisci, which refers to all the debtor's present and future goods, only reflects the law as it stood in the high or late classical period.^[1144] Mixed origins
On the basis of a detailed comparison of Egyptian sources with imperial constitutions and jurists' writings Wieacker concludes that they ‘add up to a closed picture'. The privilegium (ius) fisci of imperial law, pursuant to which the debtor's patrimony is liable ‘as if it were a pledge' (veluti pignoris or pignoris vice), corresponds in its scope, ranking, and realization with the protopraxia. Protopraxia, privilegium fisci, ius fisci, veluti pignoris ius, and pignoris vice all are terms for the same phenomenon?^[1145] This phenomenon is, according to Wieacker, not a variety of pignus. The protopraxia and its west-Roman equivalents differ from pignus and hypotheca not only in their creation (by operation of law rather than by agreement) but also in their function and substance.^[1146] ^{^[1147] ^[1148] ^[1149] The Roman jurists use the images of veluti pignoris ius and pignoris vice in order to approximate the legal consequences (enforceability against third parties, execution) of the protopraxia in terms of Roman private law, whose forms of thinking they had to apply?¹ The main difference between the protopraxia and the fiscal privileges of imperial constitutions is that the protopraxia could only be enforced against third parties after it was publicized?2}
The origins of Roman institutions (e.g., subsignatio praediorum) and of the protopraxia are not necessarily mutually exclusive, but could be cumulative?3 The oldest forerunner of the fiscal pledge could have been a Greek-Hellenistic institution, but its reception in general imperial law may have benefited from pre-existing Roman institutions.^[1150] There is, in any case, a remarkable coincidence between the subsignatio praediorum and the protopraxia.
Under both institutions the state's security is made public and the security cannot be enforced against third parties if the assets have been duly conveyed (i.e., without the intention to defraud the state's right of recourse). This similarity could be a consequence of parallel (analogous) evolution, but Wieling considers Roman influence on the protopraxia (rather than vice versa) more likely/^[1151] In his monograph on general pledges arising by operation of law, Wagner holds that the protopraxia is a Greco-Egyptian institution which is never mentioned by the Roman jurists and is unlikely to have been received in Roman law. There was, rather, a parallel evolution between the protopraxia and the fiscal ius pignoris.^[1152] ^{^[1153] ^[1154] ^[1155] ^[1156] In the Sulpicii archive, however, there is a (poorly preserved) document which does refer to protopraxia. TPSulp 106 from 57 ad seems to concern the auction in Puteoli of a ship from Sidon (Syria) and/or its cargo, with (presumably) local authorities claiming a preferential right in respect of the proceeds.3⁷ Because of the fragmentary nature of TPSulp 106 we are left in the dark about the legal background of the auction. The word ‘avertisset’ can be clearly read and might point at the embezzlement of cargo or the evasion of harbour taxes or customs duties/⁸ The document expressly refers to the ‘protopraxia’ to which the Puteolean authorities claimed to be entitled according to ‘law and custom' (‘protopraxia [e]t lure ipso et consue[tu]dine sibi esset’). The Greek origins of Puteoli and the presence of a Greek community in this city could explain the presence of the protopraxia as a local custom of Greek origin, which was later confirmed by Roman magistrates or the Emperor/⁹ In a letter to Trajan from 111 ad Plinius refers to the granting of protopraxia to local communities in Pontus and Bithynia by the Roman provincial administration/⁰ TSulp 106 may thus provide some support to Wieacker's theory that Roman fiscal pledges find their origin in the Hellenistic protopraxia.
The presence of this fiscal preference on Roman soil may have caused the Roman state or local municipalities to introduce similar local fiscal preferences, which together with indigenous Roman institutions (subsignatio praediorum and the statutory pledge of the Fragmenta de iure fisci) contributed to the ‘gene pool' from which fiscal general pledges evolved. Fiscal and conventional general pledges
From the second century ad onwards there is an increasing number of cases in which all of someone's assets would be subject to a general right of pledge arising in favour of the imperial treasury.⁴¹ In this century and the next one the fiscus Caesaris evolved into a separate bureaucracy^² employing many functionaries, who were involved with the extensive financial activities of the Roman stated³ The public interest was deemed to be best served with granting the treasury preferential rights against the assets of its debtors, both taxable persons and ordinary debtors (e.g. borrowers, tax farmers). There was a close relationship between fiscal and conventional general pledges, and the borderline between the two cannot always be sharply drawn. The general pledges arising by operation of law for the benefit of the imperial treasury appear to have evolved from ‘tacit' pledges, which in their turn evolved from express contractual provisions on general pledge. In particular, where the imperial treasury would enter into ordinary contracts (e.g., loan agreements) with citizens, a conventional right of pledge would be granted to the treasury. In one of the first opinions on the general pledge (Scaev. D. 20.4.21 pr.) someone had borrowed money from the imperial treasury and had expressly pledged all his present and future goods to it.44 In imperial constitutions fiscal pledges were sometimes deemed to be granted conventionally. A constitution by Caracalla from 214 ad (C. 8.14.2) deals with a general pledge securing
Antioch to enforce a pledge (ius persequendi pignoris' pursuant to a "privilegium" existing under its own law (lege sua’) in respect of the assets of a deceased person.
41 The earliest direct witnesses of fiscal general pledges in the Corpus iuris civilis are rescripts from Caracalla (e.g., Ant. C. 8.14.1 (213 ad)) and responsa from Papinian (e.g., Ulp. (Pap.) D. 49.14.28). Decisions by Septimius Severus on what must have been fiscal general pledges are reported by Paul, such as ‘Moschis's case' (Paul. D. 49.14.47 pr.) discussed later in this chapter.
42 In addition to the imperial fiscus, there were also other fiscs and treasuries (e.g. aerarium Saturni). For the purpose of this chapter I will use ‘treasury' as the generic term. On the legal personality of the fiscus Caesaris, see Lenz 1994: 6-11; Koops 2012: 280.
43 Lenz 1994: 3-11; Koops 2012: 279-81.
44 See also Alex. C. 7.73.3. See Wieling 1989: 411.
contracts entered into between the treasury and ordinary citizens.^[1157] A general right of pledge does arise, according to the constitution, even if it has not been expressly agreed. This suggests that it was deemed to have been impliedly agreed: the general pledge arising in favour of the treasury is constructed as a fictitious conventional general pledge over all the debtor's assets?^[1158] This implied contract construction may very well have been used with a view to the actio Serviana, whose formula did, after all, require ‘convenisse’.^[1159] ^{^[1160] ^[1161] ^[1162] ^[1163] ^[1164] ^[1165] This does not appear to be, however, an invention by Caracalla's chancery. The words ‘certum est’ in C. 8.14.2 could indicate that the implied fiscal pledge was already a settled institution at the time this constitution was issued?⁸ The reference in C. 8.14.2 to a pledge which had been expressly granted may also have had a similar function as in Gai. D. 20.1.15.1 for conventional general pledges?⁹ There, because the legal status of the general pledge was not yet fully settled, the parties stated that generally pledged goods would be treated in the same manner as specifically pledged goods?⁰ Besides, for a general pledge securing contractual debts vis-à-vis the treasury a contractual analogy for the granting of the pledge suggests itself easier than for a tax debt: in Caracalla's constitution from the year before (C. 8.14.1) the fiction of an implied contract is not used for tax debts?¹ One cannot even rule out entirely that fiscal privileges were not descendants of actual rights of pignus or hypotheca at all, but were rather analogous ‘pledge-like' rights of recourse, whose content and enforcement were subject to the same rules as applicable to conventional pledges?²}
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Source: Verhagen Hendrik L.. Security and Credit in Roman Law: The Historical Evolution of Pignus and Hypotheca. Oxford University Press,2022. — 448 p.. 2022

Origin of Fiscal Pledges

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