Policies of the Roman Republic

Moneylending transactions, in so far as they go beyond loans between friends or neighbours, have at all times posed a challenge to the legislator.⁶⁷ The borrower is usually in a weak position economically (otherwise he would not be in need of money), and thus a strong possibility exists that the lender may be tempted to exploit his predicament.

In order to prevent usurious⁶⁸ abuses, the State is therefore called upon to interfere and to afford some protection to the disadvantaged party. The Roman legislator responded to this challenge in a twofold way. He tried to combat usurious interest rates and he addressed himself specifically to the situation where sons in power had taken up a loan.

Roman law is marked by its emphasis on the autonomy of the contracting partners to regulate their own affairs, based on the principle of liberty and corresponding to the authoritative position of the paterfamilias in Roman society.⁶⁹ Thus, for instance, Roman law never provided for judicial reconsideration of contracts of sale or lease in cases of gross imbalance between performance and counterperformance. Yet, there is one area in which the law intervened at an early stage: usurious interest rates. In contracts of loan, the freedom of the parties to negotiate usually amounts to the freedom of the creditor to dictate the terms of the contract. The XII Tables already contained a rule "ne quis unciario faenore amplius exerceret".⁷⁰ The term "unciarium fenus" (interest of—of the capital) is somewhat enigmatical and has led modern scholars to argue about whether it constituted a ceiling rate of $1 %, 10 %, 831 % or 100 %.⁷> This dispute arises because it is uncertain whether the interest, according to the XII Tables, had to be calculated per year or per month, and whether the calculation was based on a year ^[860] ^{^[861] containing ten or twelve months.⁷² It is clear, however, that in case of contravention the usurer incurred a criminal sanction: he had to pay the poena quadrupli.}

In the course of the following centuries, this limit for the charging of interest rates varied; in 347 B.C., for instance, it was cut down by half (fenus semiunciarium).⁷³ In practice, however,⁷⁴ higher interest rates often seem to have been charged and the borrowers were far from being well protected. Therefore, only five years later, a lex Genucia forbade the charging of interest altogether.⁷⁵ But even that did not stop usurious practices. From Appian⁷⁶ we hear about a dramatic uprising in 89 B. c.:

"About the same time dissensions arose in the city between debtors and creditors, since the latter exacted the money due to them with interest, although an old law distinctly forbade lending on interest and imposed a penalty upon any one doing so.... But, since time had sanctioned the practice of taking interest, the creditors

The old Roman year is said to have contained only 10 months. It started with the month of March, i.e. the time of thaw, when nature awoke and flora and fauna regained their vitality; the flowing of the Ufe-sap was seen, apparently, as something essentially male, for the term "Martins" derives from mas, -aris. It is not clear whether this year ran from spring to spring (an interest rate of fenus unciarium based on a yearly calculation would then amount to 8- %) or whether it comprised only the period of agrarian productivity, so that the time of nature's hibernation was not counted (under these circumsrances, — for ten months would amount to — for twelve months — 10 %). King Numa is said to have added two further months (namely januarius and Februarius, as nos. 11 and 12) and he thus introduced a year based on twelve months and containing 355 days. Because the year was running ahead of the solar year by 10 - days, intercalations were necessary. Normally, therefore, every second year in the middle of February a whole mensis intercalaris of either 22 or 23 days was inserted.

On that basis, however, the calendar overshot the solar year by one day. The question of intercalations seems to have been handled very arbitrarily and was sometimes dependent upon considerations of political expediency. In 190 B.C., for instance, the calendar was 190 days out of step with the solar year. Julius Caesar was the first to introduce a rational system of intercalations. Atter having intercalated 90 days in the year 46, he started the new (Julian) calendar on 1 January 45. The year consisted of 12 months (January now being the first month) or 365 days; every fourth year, one day in February (the 24th or 25th) was counted twice, thus bringing it up to 366 days. In the Middle Ages it became apparent that the calendar had, again, run out of tune with the tropical year. Thus, in his bull "Inter Gravissimas" Pope Gregory XIII (one of many lawyers on the Holy See), decreed that 10 days, the 5th to the 14th October 1582, had to be leaped over and that henceforth every centenary year (except every fourth one, starting from 1600) should cease ro have the intercalary day. During the Middle Ages, incidentally, the year was considered to begin at Easter, which might be at any time between 22 March and 22 April. Usually, however, a fixed date was set (25 March). All the names of our months (with two exceptions) go back to the old Roman calendar prior to the Julian reform. The names September to December, based on the numerals from seven to ten, still bear witness to the fact that, at that time, the year commenced on 1 March. The Quintilis was changed to July in honour of Julius Caesar (his birthday was on 13 July), Sextilis to Augustus in honour of the first princeps (who had conquered Alexandria, and thus finally triumphed over his rival Antonius during the first days of August in 30 B.C.). For further details, see A. Michels. The Calendar of the Roman Republic (1967); Hans Kaletsch, Tag und Jahr (1970); Alan E. Samuel, Greek and Roman Chronology (1972), pp.

153 sqq.

⁷³ Tacitus, Annales, Lib. VI, 16; Livius, Ab urbe condita, Lib. VII, XXVII, 3.

⁷¹ On what was ordinarily charged in practice, sec Billeter, op. cit., note 71, pp. 163 sqq., 228 sqq.

" Cf. Max Kaser, Verbotsgesetze, p. 36; Giuseppe Tilli, "... postremo vetita versura", (1984) 86/87 BIDR 147 sqq. See, in this context, too, the lex Marcia, mentioned in Gai. IV, 23. ⁷⁶ Bella civilia. Lib. I, 54.

demanded it according to custom. The debtors, on the other hand, put otf their payments on the plea of war and civil commotion. Some indeed threatened to exact the legal penalty from the interest-takers. The praetor Asellio. who had charge ot these matters, as he was not able to compose their differences by persuasion, allowed them to proceed against each other in the courts, thus bringing the deadlock due to the conflict ot law and custom before the judges. The lenders, exasperated that the now obsolete law was being revived, killed the praetor."

Asellio was slain in the centre ot the forum Romanum. The Senate offered a reward to anybody who would give testimony leading to the conviction of the murderers of Asellio, but to no avail. The moneylenders covered up everything.

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

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