Pignus and Fiducia: Common Origin

Although the use offiducia as a security interest may have earlier origins, it may really have taken off at the time of the Punic wars. Frequent and long­term absence from farms because of military service may have resulted in lower profitability of farmland and increased the need for credit for farmers. The availability of cheap corn from Sicily and elsewhere may have forced

Roman farmers to change to other crops (olives) and products (wine) or to cattle breeding. The investments needed for this may have forced small farm­ers to obtain credit from lenders against collateral.^[496] Fiducia had the advan­tage that valuable assets (land, slaves, horses, and cattle) could be offered as collateral, while the borrowing farmers could continue to use these assets on their farms. The mancipatio (or in iure cessio) needed for fiducia did not require the transfer of possession to the creditor.^[497]'¹⁵

Fiducia cum creditore: epigraphic evidence

In the Sulpicii archive there are two groups of documents, all drawn up in the same format, relating to the auction of res mancipi which had been manci- pated by way offiducia cum creditore.^{[498] [499] Although these documents are not records of the actual mancipatio and pactum fiduciae (which have not been preserved in the archive), they do expressly refer to the core of a transfer by way of security: the mancipatio by way offiducia for a nominal amount.}

Poppaea Prisci liberta Note iuravit pueros Simplicem et Petrinum, sive ea mancipia alis nominib[us] sunt sua esse seque possidere, neque ea mancipia [-] ali ulli obligata esse neque sibi cum ulo com[munia] esse eaque man­cipia singula sestertis nu[mmis sin]gulis Dicidia Margaris emit ob seste[rtios n(ummos) LD et] mancipio accepit de Poppea Prisc[i liberta Note] tutore auctore D. Caprasio A[mpliato] libripende in si[ngu]la P. C[- an] testat{us} in singula [-].

[Dicidia Margaris cum] Poppea Prisci li[b(erta) Note pactum conventum fecit] uti ea manc[ipia sumtu inpensa periculoque eius sint supra haec inter se convenerunt pactaeque... inter se sunt.

Actum Pompeis IX Kal.... L. lunio Caesennio Paeto P. Calvisio Rusone cos.]. [Pactum conventum. quae mancipia hodie mihi ven]didi[sti, ita tibi heredive tuo (?) restituentur ut antea pecunia quam], m[u]t[uam] pro duobu[s mancipiis tibi hodie (?) dedi, o]mnis mihi ere[dive meo solvatur vel ad me ut rede] at usu ve[ni]at. Si ea pecu[nia omnis mihi heredive meo] k(alendis) Novem(bribus) primis solu[ta non erit ut mihi heredive meo liceat] ea mancip[ia q(uibus) d(e) a(gitur) i]dibus D[ecembr(ibus) primis pecunia praesenti] Pompeis in foro luce palam [vendere - neve] tibi eg[o] neve heres me[us teneamur nisi proptere]a si minus de dolo malo ea ve[nditione redactum esse...] tatur.

Si quo minoris e[a] mancipia q(uibus) d(e) a(gitur) venie[rint in sortis vi]cem d[e]bebun[t]u[r] mihi herediv[e meo quae reliqua erunt.

Ac[t(um)] Pompeis IX k[al. -] L. lunio Caesennio [Paeto] P. Calvisio Rusone cos.

Poppaea Note, freedwoman of Priscus, swore that the boys Simplex and Petrinus, or if these slaves are (known) by other names, are hers and that she possesses them and that these slaves [-] are not charged to any other person and that they are not (held) in common with anyone, and Dicidia Margaris bought these slaves individually with a single sesterce for [1,450] sesterces and accepted (them) by mancipation from Poppaea Note freedwoman of Priscus, with her tutor D. Caprasius Ampliatus as auctor, P. C[-] (acting as) libripens for the single (nummus), [-] (acting as) antetestatus for the single (nummus) [-.

Dicidia Margaris made a pactum conventum with Poppaea Note, freed­woman of Priscus, that these slaves would be at her assumed expense and danger, about these things they agreed amongst themselves and they made a pact... among themselves.

Done at Pompeii on the ninth day before the kalends of—when L. Junius Caesennius Paetus and P. Calvisius Ruso were consuls.

Pactum conventum. Those slaves who today you have sold to me thus, let them be restored to you or your heir when that previous money, which today

I gave to you as a loan for the two slaves is all paid back to me or my heir or when it returns to me as it happens. If all that money shall not have been paid back to me or my heir by the first kalends of November, be it permitted to me or my heir to sell for cash these slaves whom this matter concerns on the first ides of December, at Pompeii in the forum by day openly and let neither me nor my heir be held unless on this account, if less is returned from this sale on account of malicious fraud.

If these slaves whom this matter concerns shall have sold for some lesser amount, let that which shall be left over be repaid to me or my heir in repay­ment of the remaining (debt). But if these slaves whom this matter concerns shall have sold for more, let that which shall be extra be returned to you or your heir [-] this money [-]. And that these slaves shall be at your assumed expense and danger, this is agreed by me with you and I have made a pact with you.

Dicidia Margaris Poppaea Note, freedwoman of Priscus with her tutor D. Capracius Ampliatus amongst these things they agreed amongst them­selves and made a pact between themselves.

Done at Pompeii on the ninth day before the kalends [of -] when L. Junius Caesennius Paetus and P. Calvisius Ruso were consuls.^[500]

This document has many interesting features: sale for one sesterce, licence to sell for the creditor, reference to sale at auction, obligation for the creditor to return the surplus, the debtor's continuing liability for the deficit. For that reason it has been reproduced completely; we will return to it on several occasions in this book.

Dual structure offiducia and pignus

The Mancipatio Pompeiana and other epigraphic sources show that there is a remarkable structural similarity between pignus and fiducia.

Both legal institutions have a dual structure, consisting of a contractual component (pactum fiduciae and conventio pignoris), in which the creditor and debtor set out their mutual rights and obligations in relation to the charged property, and a proprietary component (mancipatio and traditio), a disposition aimed at conferring a real (in rem) security interest upon the creditor.^[501] The obligation of the creditor to return the charged property upon payment of the secured debt was sanctioned by actiones in personam: the actio fiduciae and the actio pigneraticia (directa), respectively.

In respect of the exact relationship between the pactum fiduciae and the mancipatio, different views have been put forward in modern literature. The Mancipatio Pompeiana has been used in modern literature as an argument in support of the view that the mancipatio and the pactum fiduciae must be neatly separated.1^[502] The mancipatio only served to convey ownership of the charged property. It is the pactum fiduciae that defined the legal relationship between debtor and creditor with respect to the mancipated property and which turned the creditor's ownership into a security interest.^{[503] [504] A second view, however, is that the fiduciary nature of the legal relationship between debtor and creditor was a legal consequence of the mancipatio itself?52 The fact that in all but one of the classical epigraphic sources of the fiducia cum creditore this phrase is used could indicate that the words fidi fiduciae causa did have a specific legal meaning. The Mancipatio Pompeiana, however, which does not include this phrase, is a strong indication that, in any case, the use of the exact words fidi fiduciae causa was not a formal requirement for the credi­tor's obligation to return the property.1'55 The third view holds that mancipatio and pactum fiduciae constitute an inseparable unity consisting of two elements, which as such is governed by the fides. Pursuant to this fides, the creditor's obligation to re-mancipate is enforceable with the actio fiduciae granted to the debtor.154 The general fiduciary nature of the transfer of ownership is expressed in the mancipatio itself, while the pactum fiduciae makes clear what the purpose (management, security, etc.) of the fiduciary transfer is?55 An attract­ive side of the third view is, on the one hand, that like the first view, it substantiates the idea that the creditor's ownership was conditioned by its fiduciary nature. On the other hand, as in the second view, it regards the pactum fiduciae as indispensable for the actio fiduciae, which makes the actio fiduciae the counterpart of the actio pigneraticia (directa) and thus fits well with the structural similarity offiducia and pignus.}

Functionally divided ownership and usureceptio

Throughout his academic career Kaser has insistently argued that originally Roman law endorsed neither an absolute nor a unitary concept of ownership.15⁶ As a preliminary or early stage of ownership there only existed one undifferentiated proprietary interest.¹⁵⁷ In archaic Roman law ownership and subordinated real rights (iura in re aliena) were not neatly separated and several ‘ownership rights' could coexist simultaneously in respect of the same object.15⁸ These ownership rights could be attributed to different persons, in order to grant (what in later law would be) usufructs, servitudes, or rights of pledge.15⁹ When a debtor charged his or her property as collateral, ownership was originally functionally divided between debtor and creditor. Both parties would have a right of ownership that was restricted by the exercise of its corresponding functions?⁶⁰ Thus, as long as the secured debt was not dis­charged, the debtor would be deprived of his or her right to transfer the pledged

Pompeiana is a genuine contract of sale, which is entered into for security purposes and thus was a functional alternative to the fiducia cum creditore. Marra 2017. I find it very hard to believe that the Mancipatio Pompeiana is not a fiducia cum creditore.

154 In this sense Bellocci (1983: 162, 214) and perhaps previously Erbe (1940: 5-6).

155 Lambrini 2016: 218-9.

156 For example, Kaser 1982: 25-6, 55-6, 72-3. Similar views have been adopted by von Lübtow 1957: 318-21 and Wubbe 2003: 22-5, 239. The concept of functionally divided ownership for fiducia andpignus in archaic and pre-classical Roman law is rejected by Diosdi 1970: 116-20. Also critical are Krämer 2007: 194-206 and Perani 2021: 293-7. More positive is Braukmann 2008: 95-7.

157 Kaser 1982: 72-3. 158 Kaser 1982: 22-5, 239.

159 Kaser 1982: 28. For a detailed account of the emergence of iura in re aliena, see Giuffre 1992: 114-224.

160 Diosdi 1970: 107.

property and in the event of default this right could be exercised by the cred­itor. The creditor would acquire a redeemable (and thus temporary) ‘security ownership, while the debtor retained a right of ownership for the ‘remainder. In the event of default the creditor's security ownership would convert into full ownership (forfeiture). One remaining trace in classical law of this func­tional division is the usureceptio fiduciae.^[505]

The usureceptio fiduciae is a very old institution possibly dating back to the time of the Twelve Tables.^[506]''² Under this special form of usucapio the debtor in possession of the object offiducia regained civil ownership of it after one year, also in respect of land (where the general usucapio term was two years). Gaius says that usureceptio only takes place when, during the time the secured debt has not yet been discharged, the debtor neither rents the prop­erty from the creditor nor holds it as bailee (precarium).^{[507] [508] [509] [510] Apparently it was felt that where he consented to a non-possessory fiducia the creditor should not, before the debt was discharged, lose ownership as a consequence of the ‘lighter' usureceptio rules?'4 For the majority of cases, therefore, usureceptio is not as odd as it may initially seem. The creditor could prevent usureceptio from taking place by allowing the debtor to use the object offiducia pursuant to locatio conductio or precarium. When the secured debt was discharged the locatio conductio or precarium would automatically terminate, which would only then trigger the usureceptio mechanism?'5 Here usureceptio would even have the advantage for the creditor and debtor of dispensing with the neces­sity of a formal re-mancipation. The debtor would, after discharge of the secured debt, automatically reacquire civilian ownership of the collateral after one year. During that year the debtor would have the position of a prae­torian owner and would have the actio Publiciana (or an analogous action) at his or her disposal for recovering the property from third parties.166 The law was adapted to the economically most efficient solution, by giving debtors the right to use the collateral while at the same time protecting creditors against the adverse consequences of an ancient legal institution (usureceptio). One feature of usureceptio that is peculiar, however, is that if the debtor had taken away the property from the creditor's premises without the latter's permis­sion, it could lead to loss of ownership on the side of the creditor before the secured debt had been discharged. Several explanations have been offered in modern literature for this peculiarity, including the one offered by Wubbe that usureceptio reflects that the debtor was in some respects still regarded as the owner of the charged property.[511]}

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