Possessory and Non-possesory Pledges in the Sulpicii Archive

Where large quantities of agricultural goods (e.g., grain, olives, and wine) were to be pledged, the sheer volume of the pledged assets might create logistical dif­ficulties if, in order to create a right of pledge, they were to be handed over to the creditor and be stored by him.

File C. Novius Eunus (TPSulp 51, 52, and 45)

A typical example of a secured credit transaction from the Sulpicii archive is the ‘file C. Novius Eunus', a series of five documents all concerning one and the same credit relationship, which was arranged and managed by the Sulpicii. The grain trader Gaius Novius Eunus borrowed 10,000 sesterces from Evenus Primianus, against what appears to be a non-possessory pledge. The purpose of this loan has not been expressed, but it may have been taken in order to repay a maritime loan with which the purchase of the pledged goods had been financed, or in order to buy more grain in anticipation of higher grain prices later in season. The loan was entered into in June, at a time when the new season's shipments of grain from Alexandria (or elsewhere) would have arrived in Puteoli. Grain prices would be low and Eunus could have specu­lated that they would rise later in the season. With the profits made from future sales, the loan (plus interest) could be repaid and the pledged wheat and other foodstuffs would also become available for sale at a higher profit.^[699] If all this would not go according to plan and Eunus would fail to repay the 10,000 sesterces, the lender, Evenus Primianus (or the Sulpicii on his behalf), could sell the pledged goods at auction and take recourse against the proceeds.

We encounter pledges of goods stored in warehouses in the archive of the Sulpicii as well as in several Digest texts. From a later period, we have two opinions by Scaevola, which, as they so often do, give us a good insight into Roman law in action. In Scaevola D. 13.7.43.1, grain merchant Titius borrowed money from Gaius Seius and received a possessory pledge of leather bags. These bags were requisitioned by the officio annonae for the distribution of grain while they were stored by Gaius Seius in a warehouse. The horreum mentioned in the text probably wasn't the creditor's own warehouse but that of a professional warehouse operator.^[700] Another case discussed by Scaevola is D.

TPSulp 51: non-possessory pledge

The first document in the file C. Novius Eunus is TPSulp 51, which I shall describe in more detail than the other documents from the archive. TPSulp 51 is a virtually intact triptych of which both the scriptura interior and exterior have been preserved. The scriptura interior was written by its author Gaius Novius Eunus in vulgar Latin. This authentic version of this chirograph has many grammatical and spelling mistakes. The index and the scriptura exterior are reproduced in this section. At the bottom of the last page (side 3) of the scriptura interior there are traces of a seal, which is likely to have been that of C. Novius Eunus. Side 4 of the triptych has a groove (sulcus) with the remains of six seals adjoined by the names of the signatores written in ink. The name of Gaius Novius Eunus is recorded twice (alongside the first and the last seal). The other seals are those of witnesses. One of these witnesses was Gaius Sulpicius Faustus, who may have acted as a financial intermediary for this credit transaction. This may explain why TPSulp 51 is part of the archive, which is confirmed by the fact that it is based on the same template as used by the Sulpicii themselves.^[703]

TPSulp 51 (margines and scriptura exterior)

Chirographum C(aii) Nov | ii Euni HS X mutuorum

Put(eolis) XIV k(alendas) Ìul(ias) || Proculo et Nigrìno co(n)s(ulibus). Cn(aeo) Acerronio Proculo C(aio) Petronio Pontìo Nigrìno co(n)s(ulibus), quartum kalendas Ìulias.

C(aius) Novius Eunus scrìpsi me accepisse mutua ab Eueno Tì(berii) Caesaris Augustì liberto Primiano apsente per Hesychum servum eìus et debere eì sestertium decem mìllia nummum, quae eì reddam cum petìerit, et ea HS X m(ilia) n(ummum), q(uae) s(upra) s(cripta) s(unt), p(roba) r(ecte) d(ari) stipulatus est

Hesychus Euenì Tì(berii) Caesaris Augustì l(iberti) Prìmianì servus, spopondì ego C(aius) Novius Eunus; proque iìs sestertiìs decem m[ill]ibus nummum dedì

ei pignoris arrabonisve nomine tritici Alexandrini

modium septem millia ‘[plu]s minus' et ciceris farris monocopi lentis in saccis duc[en]tis [mod]ium quattuor millia p(lus) m(inus), quae omnia reposita habeo penes me in horreis

Bassianis publicis Pu[teo]lanorum, quae ab omni vi periculo meo esse fat[e]or.

Act(um) Puteolis.

Chirograph of C. Novius Eunus on 10,000 borrowed sesterces

Puteoli, on the 14th day before the Kalends of July under the consuls Proculus and Nigrinus (28 June 37).^{[704] [705]}

During the consulship of Gnaeus Acceronius Proculus and Gaius Petronius Pontius Nigrinus,

on the 4th day before the Calends of July.

I, Gaius Novius Eunus, have written that I have received a loan from Euenus Primianus, freedman of Tiberius Caesar Augustus, in his absence through Hesychus his slave. And that I owe him 10,000 sesterces in cash, which I shall give him back, when he so requires.

And that these aforementioned 10,000 sesterces are to be duly paid in good coin has been stipulated by

Hesychus, slave of Euenus Primianus, freedman of Tiberius Caesar Augustus, and I, Gaius Novius Eunus, have promised. For these 10,000 sesterces I have given him

as pledge or arrabo* 7,000 modii of Alexandrian wheat,

more or less, and 200 sacks of chickpeas, flour, monocopi

and lentils, 4,000 modii, more or less,

all of which I keep with me in the Bassian Public Granaries of the Puteolans, which I admit is at my risk for all danger.

Done in Puteoli.^[706]

In TPSulp 51 the debtor C. Novius Eunus declares, in respect of the wheat and two hundred sacks of other foodstuffs which were pledged in order to secure the initial loan of 10,000 sesterces: ‘all of which I keep with me' in the ‘Bassian' public warehouses of Puteoli.^[707] The words ‘penes me’ (‘with me') already suggest that the debtor was still in control of the pledged goods. Two other documents from the file C. Novius Eunus make it even more plausible that we are actually dealing with such non-possessory pledge: TPSulp 52 and 45.

TPSulp 52 and 45: possessory pledge

In TPSulp 51, 7,000 modii of wheat were given in pledge. Camodeca assumes that the minimum price of wheat was three sesterces per modius.^{[708] [709] [710] [711] Therefore, the value of the wheat was at least 21,000 sesterces?2 The value of the other goods mentioned in TPSulp 51 has been estimated at approximately 9,000 sesterces.}

TPSulp 52 (margines and scriptura interior)

Chirographum C(aii) No || vii Euni HS oo oo oo mutuor(um) praeter alia HS X || ob pignus tritici.

C(aio) Cessasare Germanico Aug(usto)

Ti(berio) Claudio Germanico co(n)s(ulibus),

VI nonas lulias. C(aius) Novius Eunus

scripssi me accepisse muta ab

Hessco Eunni Ti(berii) Cessaris Augusti l(iberti) Primiani ser(vo) et debere ei sestertia tra milia nummu, pret(er) alia HS X n(ummum) que alio chirographo meo eidem debo, et ea sestertia

tra milia num(mum) nummu,

q(uae) s(upra) s(cripta) s(unt), p(roba) r(ecte) recete dari stipulatus ets Hessucus Eunì

Tì(berii) Cessaris Augustì l(iberti) Primiani ser(vus) spepodi ego C(aius) Novius Eunus, in qua ominis suma dedì eì pignoris tridigi Alxadrini modi= um septe mila, quot est possit[um] in horeìs Bassianìs puplicis Putola[nor(um)] medis horeo duode[cimo], et sacos ducen[t]= os lentis c[ice]r[is · · ] + issi monocopì et faris in quibus sunt modium quator milia, qui sunt possiti in ìsdem horeìs, que ominia ab ominì vi priculo meo est, fator.

Actum Putolis.

Chirograph of C. Novius Eunus on HS 3,000 borrowed

in addition to the other HS 10,000 against pledge of wheat.

Under the consuls Gaius Caesar Germanicus Augustus and

Tiberius Claudius Germanicus

on the sixth day before the Nones of July (2 July 37). I, Gaius Novius Eunus, wrote that I received as a loan from

Hesychus, the slave of Evenus Primianus, the freedman of Tiberius Caesar Augustus, and owe him 3,000 sesterces

in cash, in addition to the other 10,000 sesterces in cash

which by my other chirograph

I owe him.

3,000 sesterces in cash,

which are written above, will be duly given in good coin

has been stipulated by Hesychus, the slave of

Evenus Primianus, the freedman of Tiberius Caesar Augustus and I, Gaius Novius Eunus, have promised to do so.

And for the whole sum I gave him

as a pledge 7,000 modii of Alexandrian

wheat, which is stored

in the Bassian Public Granaries of the Puteolans,

in the middle level in grainstall 12, and 200 sacks

of lentils, chickpeas, monocopi,

and flour, which hold 4,000 modii, which are placed

in the same grain-stalls, which I

admit is at my risk for all danger.

Done in Puteoli.

When this additional loan of 3,000 sesterces was granted, the same wheat as already pledged in TPSulp 51 was now pledged again to secure the total debt of 13,000 sesterces. This time, however, in TPSulp 52 Novius Eunus does not declare that the wheat was stored ‘with me’. From another document (TPSulp 45) it becomes clear why.

TPSulp 45 (margines and scriptura exterior)

Chir[ograp]hum Diogne | ti C(aii) Novii Cypaeri servi co[ndu]ctionis hor || rei XII in Bassianis in quo triticum est || p[i]gnori accept(um) a C(aio) Novio Euno.

C(aio) Caesare Germanico Augusto

Tì(berio) Claudio Nerone Germanico co(n)s(ulibus), sextum nonas Ìulias. Dìognetus C(aii) Novi

Cypaerì servus scripsi ìussu Cypaerì dominì

mei coram ipso me locasse Hesycho

Tì(berii) Ìulì Augusti l(iberti) Eueni ser(vo) horreum

duodecimum ìn horreìs Bassianìs publicis

Puteolanorum mediìs, ìn quo repositum

est triticum Alexandrinum, quod pignorì

accepit hac dìe a C(aio) Novio Euno, ìtem

in iìsdem horreìs {horreìs} ìmìs ìnter

columnia, ubì repositos habet saccos du

legumìnum ducentos, quos pignorì accepit ab

eodem Euno.

Ex k(alendis) Ìulìs ìn menses singulos sestertiìs singulis n[u]m(mis).

Act(um) P[u]t(eolis).

Chirograph of Diognetes slave of Gaius Novius Cypaerus

for the lease of storeroom 12 of the Bassian (Public Granaries) in which is wheat accepted as a pledge from Gaius Novius Eunus.

Under the consuls Gaius Caesar Germanicus Augustus and Tiberius Claudius Germanicus

on the sixth day before the Nones of July (2 July 37). I Diognetus, slave of Gaius Novius Cypaerus, have written on the order of my master Cypaerus, in his presence, that I have rented to Hesychus,

the slave of Evenus, the freedman of Tiberius Julius Augustus, the twelfth granary in the middle level of the Bassian Public Granaries of the Puteolans, in which is stored

Alexandrian wheat which he accepted today as a pledge from Gaius Novius Eunus. Also

the spaces between the columns in the lower level of the same granaries, where he has 200 sacks of

vegetables, which he has accepted as a pledge from

the same Eunus.

From the Kalends of July for 1 sesterce in cash per month.

Done in Puteoli.

The creditor rented the space in the warehouses where the pledged wheat, chickpeas, and other foodstuffs were stored,¹⁵ for a nominal amount of one sesterce per month, thus effectively bringing the pledged objects under his control?⁶ What must have happened here is that the pledge, which was origin­ally created as a non-possessory pledge (TPSulp 51), is now converted into a possessory one (TPSulp 52 and TPSulp 45)Th The motivation behind this conversion is not expressed, but is likely to have been that the creditor wished to strengthen his position. Bringing the pledged wheat (etc.) under his con­trol would entail that the creditor could be sure that as long as there was suf­ficient wheat in the storeroom rented by him, the execution proceeds would be sufficient to repay the loans. The creditor's possession may also have had legal advantages; in particular if the actio Serviana was not yet available to all pledge creditors, the creditor's possession would at least give him the protec­tion of the possessory interdicts. The possession of the pledged goods would also be crucial for a sale at auction by way of execution: there would be no need to institute legal proceedings against the debtor or third parties in

15 See Du Plessis 2012: 175-89 on rental agreements between horrearii and their customers.

16 This will be discussed more elaborately shortly with reference to the file L. Marius lucundus.

17 See Krämer 2007: 300-38. Strictly speaking, from a legal perspective, TPSulp 52 probably does not represent a conversion of the original pledge. The right of pledge granted in TPSulp 51 was granted for a loan of 10,000 sesterces. The accessory nature of the right of pledge entails that for new secured debt a new right of pledge must be granted (unless the original pledge was also granted for future obligations, which was not the case in TPSulp 51).

possession.^[712] This effective control—analogous (or perhaps identical) to the traditio of res nec mancipi—may even have functioned as a conditional trans­fer of ownership of the pledged objects in case of default (forfeiture), which would have enabled the creditor to sell and transfer these to third parties?^[713]

File Lucius Marius lucundus

Another client file in the archive is formed by TPSulp 46, 53, and 79, concern­ing the Puteolean mercator frumentarius L. Marius lucundus, this time with one of the Sulpicii acting as creditor. In TPSulp 53 lucundus declares to have borrowed 20,000 sesterces from Gaius Sulpicius Faustus. In another trip- tych/chirograph (TPSulp 79) lucundus declares that in order to secure this loan he has ‘given as a pledge' (‘dedisse pignoris nomine’) Alexandrian grain, which is stored in store room 26 of the upper Barbatian Warehouse of Domitia Lepida.^[714] That this is a possessory pledge appears from TPSulp 46, which records a rental agreement pursuant to which that same storeroom of the Barbatian Warehouse is let to Gaius Sulpicius Faustus.

TPSulp 46 (margines and scriptura exterior)

[Chirographum Nardi P(ublii) Anni Seleuci ser(vi)] con[ductionis (?) h]orr[ei] XXVI [ ] P(ublio) Annio [Seleuco------------------------------------------- ].

C(aio) Laecanio Basso Q(uinto) Ter[en]tio Culleone co(n)s(ulibus),

III i[du]s Martias.

Nardus P(ublii) Anni Seleuci servus sc[ri]psi coram et iussu

Sel[eu]ci domini mei, [q]uod is negaret se litteras scire, m[e] locasse C(aio) Sulpicio Fausto horreum vicensimum et sexstum, quod est in praedis Domi= tiae L[e]pidae B[a]rbatianis superioribus, in quo reposi= tum est tritici Alexandrini millia mod[iu]m decem et tria, [quae] admetietur dominus meus cum s[er]vis [sui]s, m[er]c[ed]e in mensibus singulis

sestertis centenis nummis.

Actum Puteolis.

Chirograph of Nardus, slave of Publius Annius Seleucus for the lease of storeroom 26... Publius Annius Seleucus.

Under the consuls Gaius Laecanius Bassus and Quintus Terentius Culleo on the third day before the Ides of March (13 March 40).^{[715] [716]}

I, Nardus, slave of Publius Annius Seleucus, have written in the presence and on the order of my master Seleucus, because he denied to be able to write, to have let to Gaius Sulpicus Faustus storeroom

26 which is on the lands of Domitia

Lepida in the upper Barbatian Warehouse, in which are stored

13, 000 modii of Alexandrian grain, which my master will measure out with his slaves, with 100 sesterces in cash each month as rent.

Done in Puteoli.

This rental agreement, for a monthly rate of one hundred sesterces, is executed as a triptych/chirograph by Nardus, a slave, who acts on the order and in the presence of the horrearius P. Annius Seleucus (who professed to be unable to write). Unlike in TPsulp 45, this time the rent of the warehouse is not for the nominal amount of one sesterce per month. The rent agreed in TPSulp 46 (HS 100 per month) equals 6 per cent per annum of interest on the borrowed sum. The burden of the rent will in one way or another (e.g., in a separate stipulation or an informal agreement) have been passed on by Faustus to Iucundus.22

It is likely that storeroom 26 was originally rented by the debtor Iucundus²3 and that this original lease was replaced by the lease with Faustus. This oper­ation is equivalent to a traditio of the pledged grain from debtor to creditor. In the Digest we find texts on the traditio of goods stored elsewhere by way of sale. According to these texts, a traditio of goods which have been stored in a warehouse or wine cellar can take place by the seller handing over the keys of these repositories to the buyer?⁴ One would think that a possessory pledge could be created in exactly the same manner. Because delivery of the keys would give access to the goods, it was ‘probably regarded as sufficiently analo­gous to touching or moving to have the effect of giving possession’.²⁵ Whether storeroom 26 was locked and whether the keys were handed over to Faustus, we do not know.²⁶ This may very well not have been the case. In the other lease agreement of the archive (TPSulp 45), part of the pledged objects were stored in ‘the spaces between the columns in the lower level of the same gran­aries, where he has two hundred sacks of vegetables': this is unlikely to have been a closed-off space which could be locked?⁷ But the lease agreement with Seleucus (through his slave Nardus) would also have given Faustus control over the stored goods. It would entail that the staff of the Barbatian warehouse would no longer allow lucundus (or anyone else) to take away the stored grain without the permission of Faustus?⁸

TPSulp 79: a non-possessory pledge?

In Camodeca’s edition the date of the rental agreement in TPSulp 46 reads 13 March 40, the same date as the loan agreement (TPSulp 53), but two days before the pledge agreement (TPSulp 79) was entered into. Camodeca offers a plausible explanation, by suggesting that these two days were necessary in order to enable the warehousemen to weigh and determine the exact quantity of the grain so that the value of the collateral could be determined?⁹ But Camodeca admits that the date is uncertain: it might also have read 15 March 40, the same date as the deed of pledge.³⁰ This is, in any case, more plausible than Kramer’s suggestion that the lease agreement was dated 15 May 40. The latter date would fit nicely with Kramer’s thesis that non-possessory pledges were already recognized at the time of the Sulpicii. The pledge granted by lucundus on 15 March 40 (TPSulp 79) would then have been granted as a non-possessory pledge. Only when the loan was not repaid on 15 May 40 and Iucundus was in default, did Faustus take possession of the pledged grain by positum’). Pap. D. 18.1.74 requires that the keys are handed over in the proximity (') of the warehouse.

25 Gordon 1970: 59.

26 Jakab 2014: 334 deduces from the fact that the quantity was not specified that storeroom 12 was a separate and locked room.

27 Klinck 2015: 63. 28 See also (but more hesitant) Klinck 2015: 62-3.

²⁹ Camodeca 1999: 126. See also Jones 2006: 101.

³⁰ TPSulp 46 does not state the term of the lease, but this will at least have been the same as the term of the loan recorded in TPSulp 79 (two months). However, when lucundus failed to repay the loan, the lease is likely to have continued until the pledged grain was auctioned and delivered to the purchaser at auction.

entering into the lease agreement, in preparation of auctioning it by way of execution.³¹ An argument in favour of Kramer’s interpretation is that in con­trast with TPSulp 45 (‘wheat accepted as a pledge from Gaius Novius Eunus’), no mention at all is made in TPSulp 46 of the fact that the lease agreement is entered into by C. Sulpicius Faustus for the custody of goods pledged to him. This might indicate that the goods were already forfeited to the creditor and that they were stored in anticipation of auction. On the other hand, one of the freedmen of horrearius (P. Annius Seleucus) had acted as a witness to the loan agreement between Faustus and lucundus, which suggests that the warehouse was already involved with this secured loan transaction on ‘day 1’, in anticipa­tion of the lease agreement to be concluded a few days later/² All in all, the file L. Marius lucundus cannot be used as strong evidence for the existence of non-possessory pledges in the first half of the first century ad.

Warehouse operator’s pledge on invecta et illata

Horrea were of crucial importance for Roman societyTh In Puteoli the role of warehouse operators may not have been confined to organizing the storage of goods but could also have extended to financial intermediation in bringing together lenders and borrowers/^{[717] [718] In the archive of the Sulpicii we encounter several horrearii who were connected to the parties to the loan agreement. In the file C. Novius Eunus, the rental of the storage unit is for a nominal amount of one sesterce per month (TPSulp 45). This suggests that there must have been some (commercial or personal) relationship between the warehouse operator and the lender or borrower. In fact, we know that C. Novius Eunus was the freedman (libertus) of horrearius C. Novius Cypaerus/[719] who also acted as witness to TPSulp 52.3® In the file L. Marius lucundus, one of the freedmen of the horrearius acted as a witness to the loan agreement between Gaius Sulpicius Faustus and L. Marius Iucundus (TPSulp 53).}

Privately owned warehouses would be a considerable source of rental income for their owners/^[720] The goods stored in these warehouses would serve as collateral for this income. The leges horreorum provide (inter alia) that (unless other security has been granted) all the goods stored by customers in the warehouse shall be pledged to the warehouse operator in order to secure payment of the storage fees.³⁸ Let us suppose that a similar announcement was made at the entrance of the Bassian (TPSulp 45, 51, and 52) and Barbatian (TPSulp 46 and 79) warehouses. Which rights of pledge would then prevail, the pledges of the warehouse operators pursuant to the leges horreorum or those of the lenders renting the storage units from the horrearii? From the second cen­tury ad the lenders would, if the tenant's pledges came into existence earlier, have a second ranking security interest. In the first century ad, however, they would not even have that. For a long time, the granting of a pledge would deprive the debtor of his power to create other rights of pledge over the same pledged asset.3⁹ In other words, if the warehouse operator did have a prior tenant's pledge, the rights of pledge purported to be granted in TPSulp 51, 52, and 79 would have been invalid. Again, it is difficult to imagine that the Sulpicii would have accepted (for themselves or their clients) an invalid pledge. Each of the warehouse operators may very well have had a pledge over the wheat under the original leases with the borrowers, but this pledge will either have ceased to exist upon termination of this lease and payment of the rentals, or the warehouse operators will have waived their pledges in co-operating with the leases to the lenders.⁴⁰

6.3