8. OTHER IURA IN RE ALIENA

Emphyteusis and superficies. These two institutions, which are noticeable features of modern Civil law, originated in the public law of the Empire, and were not wholly acclimatized in the private law until Byzantine times.

¹ C. J. Gale, Law of Easements (1st edn., 1839). galis was assimilated to emphyteusis, a kindred institution of Greek law, and by the time of Justinian it had been adopted also by private landowners. By this time, too, the holder (emphy­teuta} had not merely possession, but also, like the owner or the usufructuary, an actio in rem, so that, where the emphyteusis was perpetual, he was for all practical purposes an owner, except that his holding might be terminated by his dying without successors, or by forfeiture for non-payment of rent or for irre­mediable damage. In its final form emphyteusis is the Roman law’s nearest approach to the leasehold estate of English law (which cannot indeed be perpetual, but the ordinary landowner is unlikely to make much difference between 999 years and perpetuity). It survives still in modern Civil law, particularly in systems deriving from the French. But because it drains almost all content from ownership, particularly when it is granted in perpetuity, and therefore conflicts with the Roman and Romanistic conception of the unity of ownership,¹ French law limits its duration to 100 years.

Superficies was a closely similar institution, corresponding to the modern English building lease and serving still in modern civil law a similar purpose.

Real security. If one man (the debtor) borrows money from another (the creditor) or incurs towards him some other con­tractual obligation, the creditor will often wish to have some other way of obtaining satisfaction of the debt than his simple action in personam against the debtor. In other words, he wishes to be protected against the possibility that when the debtor is called upon to pay the debt he may either have disappeared or have become insolvent. In legal terms, he wants security for the ¹ See below, p. 157.                ² See above, p. 135. debt. This security may be either real or personal. Real security is the granting of either ownership, possession, or a ius in re aliena over property of the debtor or of some other person prepared to answer in this way for the debtor. It entitles the creditor at the least to retain or recover the property, and usually also to sell it in satisfaction of the debt. The commonest examples of such real securities in modern England are the mortgage and the ‘charge’ given (usually to a bank) by the deposit of title- deeds or share certificates. Personal security, on the other hand, is merely the addition of another debtor (the surety), or perhaps several debtors, to the first. The creditor seeks protection in numbers: if the debtor does not pay, he will have recourse against the surety or sureties, and he trusts that not both or all will simultaneously have disappeared or become insolvent.

The summary description of real security which is given above is, for the modern world, misleading in its emphasis. It suggests that the primary purpose of real security is to ensure the pay­ment of the debt, whereas the modern mortgage is usually an investment. In other words, the mortgagor (the borrower) is concerned to obtain the use of capital for some considerable period and the mortgagee (the lender) is concerned to get an adequate and steady return on his money. Neither, probably, is anxious for an early repayment of the debt, and neither thinks of the mortgagee’s realizing his security as anything more than a remote possibility. But for Rome the emphasis is right.¹ The use of real security as an investment seems to have been but little developed; if a man wished to invest in land he seems to have preferred the direct investment provided by an out-and- out purchase to the indirect investment offered by a mortgage.

’ On what follows see F. Schulz, Classical Roman Law, pp. 401-5.

And there is a further marked difference from modern practice. Personal security in modern life is rare; in the Roman world it was very common—much commoner evidently than real security. It was the normal accompaniment of any substantial transaction on credit, as can be seen from the documents which chance has preserved.

The earliest Roman form of real security, like the late medieval English mortgage, was a conveyance subject to a covenant for reconveyance on payment of the debt. The debtor gave ownership to the creditor by mancipatio or in iure cessio (but not traditw), subject to an agreement or trust {fiducia} that the creditor would reconvey it if and when the debt was paid. The fiducia would also usually contain provisions as to the creditor’s right to sell, and the disposal of any surplus arising from such a sale, and so forth. This type of security had little to recommend it to the debtor. The creditor might, it is true, restore to him the possession of the thing to be held at will {precar io},¹ but there remained two other disadvantages—first, that the debtor took all the risk, in the sense that he retained no right in rem and therefore, if the creditor sold in breach of his undertaking, his remedy (the actio fiduciae} lay only against the creditor; and secondly, that successive mortgages were impossible. Even if the property was worth far more than the total of the debt it could not be used as security for any other debt. Fiducia nevertheless remained in use throughout the classical period, but there grew up side by side with it the informal and more flexible institution of pignus.

Pignus involved a transfer not of ownership but only of posses­sion. The debtor therefore was better protected than in fiducia, but the creditor, to begin with at least, less well.

’ See above, p. 112, n. i,

This development apparently began in the practice of a tenant’s pledging some property, such as agricultural imple­ments, to his landlord as security for future rent. Such an arrangement would defeat its purpose if the landlord actually took possession of the tenant’s property, and the pledge therefore amounted in law to no more than an agreement, not in itself enforceable, that the landlord should be entitled to take posses­sion if the rent were not paid. Such arrangements were given recognition by the Praetor, who gave the landlord an interdict {interdictum Salvianum) by which he could claim possession. This was available, however, only against the tenant. The important step, which created in effect a ius in re aliena and which ignored the line between contract and conveyance, was the granting, also by the Praetor, of an action in rem, the actio Serviana, by which the landlord could assert his claim against anyone. This action was later extended to all cases of pledge, whether posses­sion had been given or not. The terminology in the Digest is confused, but according to some texts the term pignus is properly applied to that form in which possession is given, and the Greek word hypotheca to the simple ‘charge’ without possession. The terminology is convenient provided the conclusion is not drawn that there were two distinct institutions.

The character of hypotheca as a mere ‘charge’ gave it the advantage also that successive mortgages were now possible, the earlier taking priority over the later.¹ For example, X, who owned land worth £5,000, might give a hypotheca on it to A for a debt of £1,000, and subsequently might give other hypothecs for debts of the same amount to B, C, and D, in that order.

may be unable to discover that it is burdened with a hypothec created by some previous owner; and the creditor who takes a charge on it may not know that it has already been charged for as much as it is worth. Here, as in other similar cases, modern systems require registration. Roman law did not attempt such a system until a.d. 472, and then only in the form of a grant of priority to hypothecs created before a public authority. And even this limited step must have been deprived of much of its value by the proviso that a hypothec created before three wit­nesses should rank equally with those made publicly. Moreover, no system of registration could have protected the creditor against the increasing number of‘tacit’ hypothecs (i.e. hypothecs created not by agreement but by operation of law). For example, the fisc had a tacit hypothec to secure the payment of any debt owing to it, and a pupillus likewise had a hypothec over the property of his tutor. No creditor could therefore be secure unless he knew almost every detail of his debtor’s life. And even this would not protect him in the later law, when a number of the tacit hypothecs were ‘privileged’ by the grant of priority even over previously existing express hypothecs. The most im­portant were those of the fisc for taxes and the wife for the return of her dowry.¹ And so, in the example given above, A might appear to be amply secured if the land had been realis­tically valued at £5,000 and if he had taken the precaution of ascertaining that X was unmarried and had no other debts at the time that the hypothec was created, but his security would become worthless if X subsequently married a woman with a dowry of £5,000 and, having squandered the dowry, died insolvent.