Pignus, Hypotheca, and Fiducia: Parallel and Divergent Evolution
Although by the end of the Republic, pignus and fiducia had evolved into separate species of real security, possible traces of their common origin could still be found in the classical period.
As we will see throughout this book, in classical law pignus and fiducia did often evolve along parallel lines. The functional similarity between pignus and fiducia created similar problems, for which the jurists found similar solutions.1''[512] It would not have been sensible had the legal consequences of two legal institutions, which performed the same function in the economy, differed too much?'9 Nevertheless, despite the fact that several evolutionary lines of pignus, hypotheca, and fiducia ran parallel courses, there were also important divergences, which had the effect that ultimately fiducia lost the struggle for existence against pignus and hypotheca. Originally fiducia may have had the practical advantage that farmers could offer their farm, land, and cattle as non-possessory collateral to lenders.This advantage disappeared when a pledge could be created as a non-possessory hypotheca.171 This could even take place ‘by mere contract' (nuda conventione), while fiducia continued to require a formalistic mancipatio. Also in other respects in the second and third century ad, pignus and hypotheca acquired certain traits which made them superior to fiducia.Pignus of res mancipi and fiducia of res nec mancipi
My original hypothesis was that originally res mancipi were always provided as collateral by way offiducia and res nec mancipi by way of pignus, and that this continued to be the case in early classical law.[513] Thus, in the archive of the Sulpicii and in other epigraphic sources res mancipi are consistently charged by way offiducia and res nec mancipi by way of pignus. However, we have seen that it is conceivable that already at Cato's time res mancipi were pledged.173 Moreover, it appears that at the time of the Sulpicii res mancipi could also be charged by way of pignus.
This is because in the Digest there are several texts, including on tenant's pledges of invecta et illata,1™ which by the time of early classical jurists seem to be dealing with a right of pignus granted over land or slavesTh5 Therefore, assets charged by way of pignus apparently could include res mancipi, which refutes the hypothesis that still in the early classical period res mancipi were always charged by way offiducia. There can be no doubt that at the beginning of the second century AD it had even become common practice to grant right of pledge over res mancipi.Charging res nec mancipi by way offiducia, on the other hand, must have been rare, if it ever occurred at all. The best candidate for a Digest text which may originally have concerned a fiducia cum creditore in respect of res nec mancipi is from Papinian.
D. 33.10.9.2. Papinianus libro septimo responsorum. Supellectili sua omni legata acceptum argentum pignori non continebitur, quia supellectilem suam legavit, utique si non in usu creditoris id argentum voluntate debitoris fuit, sed propositum propter contractus fidem ac restituendae rei vinculum.
In a legacy of all a man's furniture, silver accepted as a pledge will not be included. Because he legated his own furniture, especially if the silver was not used, with the debtor's consent, by the creditor, but set aside with a view to the (good) faith of the contract and his obligation to restore the thing.
It is unlikely that this text originally dealt with pignus. It would have been self- evident that a legacy of furniture would not include the assets which had been pledged to the testator.176 The question whether charged property would be included in a legacy is only a sensible one when it was owned by the testator. This text implies that if the debtor had allowed the creditor (testator) to use the silverware, it would have been part of the legacy, which only could be the case if the silverware was owned by the creditor.
The most plausible interpretation of this fragment therefore is that it originally must have been on Jtducia.'77 This interpretation makes D. 33.10.9.2 a peculiar text because fiducia is normally associated with res mancipi, while silverware obviously is not. The transfer to the creditor may have been by way of in iure cessio (which could be used for res nec mancipi also), perhaps as part of a larger collection of assets. It is even conceivable that this text constitutes evidence of the fact that in the second century ad, res nec mancipi were sometimes fiduciarily transferred through a traditio, certainly if one assumes that the fiduciary nature of the creditor's ownership is not a consequence of the mancipatio but of the pactum fiduciae.17* Although the creditor is the owner of the silverware, the legacy is interpreted as excluding this fiduciary property, certainly when the creditor was not allowed to use it. In other words, the creditor's ownership is conditioned by its fiduciary nature, as expressed in the pactum fiduciae.179Traces of functionally divided ownership
The writings of the early classical jurists demonstrate that by the end of the Republic, pignus had already acquired its typical characteristics, which were now considerably different from those offiducia. Where for much of the Republic Kaser's theory of functionally divided ownership is plausible, at the beginning of the classical period it certainly no longer applied (as Kaser would be ready to admit). As a consequence of the mancipatio, the creditor acquired dominium ex iure Quiritium (civilian ownership) of the object of fiducia. The debtor was left with merely a personal claim for reconveyance of the property after the secured debt had been paid: the actio fiduciae. From the perspective of property law, the debtor's position was therefore fundamentally which the creditor would upon the debtor's default acquire ownership of the pledged property. The difference, however, between Scaev.
D. 32.101 pr. and Pap. D. 33.10.9.2, is that in Papinian's case the debtor apparently was not in default, because the creditor was still under a duty to return the silverware. It is therefore less plausible to explain Pap. D. 33.10.9.2 in terms of a forfeiture pledge.177 Noordraven 1999: 162-3.
178 See pp. 118-19. Wubbe (2003: 237) notices that, although theoretically a traditio fiduciae causa would appear to have been possible, there is no trace of it, either in the writings of the jurists or in the epigraphic sources. Pap. D. 33.10.9.2 might be the exception.
17 9 Verhagen 2014: 145-6.
different from that in case of pignus. In the latter case, the debtor remained the (civilian or praetorian) owner of the charged property: the creditor merely acquired a subordinate right on someone else's property (ius in re aliena). Unlike fiducia, the right of pignus was an accessory right, whose existence was dependent upon the secured debt (Lab. D. 20.6.14), and upon discharge of the secured debt the right of pledge automatically ceased to exist.[514] [515] The most significant enduring remnant of the old conception of functionally divided ownership was that in case of a possessory pledge the creditor, although now formally a holder for someone else (Fremdbesitzer), would for several purposes still be regarded as possessor. The debtor only possessed for the purposes of usucapio, while for all other purposes (in particular, the possessory interdicts) the creditor was treated as having possession.^ One could call this functionally divided possession.[516] But we can detect traces of the old functional division in other features of classical pignus.[517] For a long time in the classical period, after the granting of a right of pledge, the debtor's powers of disposition were still seriously limited.^[518] The debtor could no longer set free pledged slaves, could not transfer the pledged property to third parties, would commit furtum if he would secretly take away (his own!) pledged property from the creditor, and would not be able to create multiple pledges simultaneously existing over the same pledged property.^[519] Joint treatment in jurists' writings and imperial constitutions It has been argued by Kreller that pignus and fiducia were subject to the same edict.18[520] Although Kaser has convincingly demonstrated that this is not plausible, he also holds that certain of Keller's premises are correct and do shed light on the relationship between pignus and fiducia.187 Where Gaius says that fiducia cum creditore is entered into ‘by way of right of pledge' (‘pignoris iure’), this indicates that these two institutions are not merely similar but that fiducia can even be regarded as a species of the genus ofpignus in a wider senseTh8 This is recognized by other jurists and many of the legal opinions in the Digest can be related to both pignus andfiducia.[521] [522] In many respects pignus and fiducia were treated similarly by the jurists and the emperors, such as in respect of the necessity of secured debts being for the payment of money, the treatment of interest, antichresis, and the liability for expenditures.'^' Also, the enforcement of the security would be subject to the same rules: the creditor's authority to sell, obligation to return the surplus, and duty of care (e.g., announcement of auctions), the debtor's liability for eviction, and the creditor's right to request forfeiture from the emperor (impetratio dominii).[523] [524] In the Digest and Codex one will not find fragments expressly dealing with pignus and fiducia jointly: all references to fiducia have been systematically removed by the compilers of the Corpus iuris civilis. Struggle for existence between pignus and fiducia For a long time the mancipatio (fiducia) may have offered much comfort to secured creditors: it would confer quiritarian ownership upon them and the prescribed formalities would reduce the risk that their debtors would give someone else's property as security. However, by the end of the Republic mancipatio probably had lost much of its publicity function, when Rome from a small agrarian community around the Palatine had developed into a metropolitan city with hundreds of thousands of inhabitants.[529] [530] [531] The formalities of the mancipatio may have become a burden rather than a benefit. The spread of Roman law throughout the empire, especially in the West, where so many cities were either municipia with Latin rights or coloniae (sometimes with the ius Italicum), the requirement that land, slaves, cattle, and horses be treated differently from other property as res mancipi must often have been burdensome.^ For pignus and hypotheca the inability to grant multiple charges was gradually overcome, initially by granting the second pledge conditionally upon discharge of the first pledge.199 A mancipatio, however, could not take place conditionally, so that this obstacle for multiple charges was never removed. Also, in other respects pignus and hypotheca acquired new traits. From the second century ad onwards, only pignus and hypotheca could be created over future assets, over receivables, and by way of ‘floating charge' over a fluctuating fund of mixed assets (real estate, movable property, and receivables).[532] [533] In other words, in this period pignus and hypotheca had acquired certain traits which made this form of real security superior to fiducia. Legal institutions that are no longer used in practice, because they are less adapted to their economic environment, may fall into disuse, or even be abolished by the law makers. This ultimately happened to fiducia, although not until after the end of the classical period.201 The story is well known. At the time of Justinian fiducia had become obsolete. In order to adapt legal opinions and imperial constitutions to their new environment, references to fiducia were replaced with references to its functional equivalents. This means that certain texts from the Digest or Codex which now refer to pignus or hypotheca were originally on fiducia cum creditore. The most systematic and influential attempt to chart these interpolations was that by Lenel, who identified more than fifty Digest fragments which were originally dealing with fiducia.202 Since then almost seventy Digest fragments have been added to this group, as well as almost twenty texts from the Codex.[534] [535] [536] In addition, there are several references on fiducia cum creditore in other collections of legal texts, such as the Pauli Sententiae, as well as in literary sources?'14 Last but not least, we are fortunate to have epigraphic sources recording fiducia cum creditore. Of preeminent importance are the specimens offiducia cum creditore recorded in documents found in Pompeii, Herculaneum, Puteoli, and Baetica?'5
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- Verhagen Hendrik L.. Security and Credit in Roman Law: The Historical Evolution of Pignus and Hypotheca. Oxford University Press,2022. — 448 p., 2022
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