Outgoing Goods: Dispositions of Generally Pledged Assets

Could the creditor with a general pledge institute the actio Serviana against any current possessor who had acquired assets from the debtor in the period after the general pledge was granted? Would such a creditor only need to prove that at some point in time in this period they had been within the patri­mony of the debtor? Such right of recovery against purchasers could have paralyzed the debtor's business and disrupted commercial intercourse,^{[1068] [1069] [1070] [1071] also given the facts that general pledges were not publicly registered and that Roman law did not protect a bona fide possessor against a pledge unknown to him.133 In respect of the other variants of pledge the Roman jurists and imperial constitutions generally reach sensible results from an economic per- spective.134 If we assume that the Roman jurists realized that there was a prac­tical necessity that the debtor who had granted a general pledge over all his present and future assets could continue to dispose of his assets free from the pledge, how can this be construed as a matter of Roman law? One possible construction would be to accept that every general pledge implied an author­ization of the debtor by the creditor to sell pledged assets freely.}

Cetera bona pledge

The most compelling argument supporting the hypothesis that generally pledged assets could be disposed of free from the pledge is connected with the continuing use of the cetera bona pledge in Roman practice, in a period in which the general pledge was firmly embedded in Roman private lawTh⁵ This shows that uncertainty about the legal status of the general pledge can no longer have been the motive for creating cetera bona pledges in the late clas­sical period.

This distinction between special and general pledges may be reflected in an opinion of Julian.

D. 47.2.67 pr. Paulus libro septimo ad Plautium. Si is, qui rem pignori dedit, vendiderit eam: quamvis dominus sit, furtum facit, sive eam tradiderat creditori sive speciali pactione tantum obligaverat: idque et Iulianus putat.

Even though he owns the thing, if a man sells the thing which he has given in pledge, he commits theft, whether he actually delivered the thing to his creditor or charged it by special pact; and so thinks Julian.

The sale of pledged property by the debtor constitutes theft (furtum), according to Julian and Paul, where it was charged by way of special pledge or—which is also a form of special pledge—possessory pledge. This seems to imply that where the debtor had granted a general pledge he could freely (i.e., without committing theft) dispose of his assets.¹³⁷ From the late third century ad there are two imperial constitutions from Diocletian, which reflect high and late classical law.

36 Wubbe 1960: 226; Van Hoof: 2017: 490. to follow (droit de suite). Where the debtor had disposed of the pledged prop­erty, the creditor not only had a personal action against his contractual coun­terparty (the debtor) but could also recover possession of the property from a purchaser. The other constitution (Diocl.-Max. C. 8.13.10) could indicate that the recovery of generally pledged assets from purchasers was excepted from this principle. What is particularly interesting about this constitution is that it expressly mentions that (at least according to the creditor) the pledged assets were specified in the deed of pledge (‘quas instrumento specialiter comprehen­sas’). Could this be an indication that the creditor would not have such rem­edy (actio Serviana) against a purchaser of a generally pledged asset? One cannot be sure: the reference to ‘specialiter may also simply have been a restatement of the facts of the case.

37 Van Hoof 2022.

Authorization for dispositions in the ordinary course of business

We have a large number of texts on (special) pledges indicating that the cred­itor's permission to sell the pledged assets would enable the debtor to dispose of the pledged assets free from the pledge.^{[1072] [1073] [1074] [1075] In modern literature it is held that a general pledge over all the debtor's present and future assets would cre­ate a presumption that the debtor was authorized to dispose of the pledged assets in the ordinary course of his dealings.1·19 There are, however, no jurists' opinions or imperial constitutions in which such an implied authorization is unequivocally confirmed?40 In modern literature this view is therefore not unanimously endorsed. In his monograph on the herd, Hammerstein notes that the discharge of animals transferred to third parties was not dependent on whether this was a disposition in the ordinary course of business.}