Real security and personal security

As is evident both from the standard of jurisprudential analysis and the amount of legislative activity, personal security was much more important in Roman law than it is today. Today creditors usually prefer real security.^[608] It provides them with assets of a rather stable value which can be converted into cash even in the event of insolvency and it excludes the risk of a (second) lawsuit against the surety (who may be unwilling to pay), or of being faced with his financial collapse too.

The first and most important reason relates to the value system that permeated Roman law and society. Friendship played a far greater social role than it does today; amicitia was a permanent relationship based on fidelity which gave rise to numerous and strict (extralegal) duties.^[611] "Omnia... alter pro altero suscipiet":^[612] this is a characteristic expression of such an attitude; and one of the things friends undertook as a matter of course was to stand surety for each other.^[613] It was part of the "officium" to help one's friend in every situation and no matter what the sacrifice—so much so that Cicero could state with only a mild degree of rhetorical exaggeration:.. sine amicitia vitam esse nullam, si modo velint aliqua ex parte liberaliter vivere. "^[614] While, therefore, amicitia made personal security a much more viable and popular institution in Roman society, Roman fides, to quite a considerable extent, alleviated the risks involved in it for the creditor: if it was in any event of prime concern for the Roman citizen to keep his word, he would certainly do everything in his power to honour a promise given for a friend.

Secondly, personal security had a much more potent effect than security by pledge; the harshness of personal execution made whoever was personally liable try to discharge his obligation almost at all cost. And, finally, one should also mention in this context the relatively unsatisfactory nature of the Roman law of real security, even though that was probably to a large extent a consequence of, rather than a reason for, the attractiveness of personal security. Usefulness and reliability of real security were seriously impaired by the lack of publicity: already by the time of the Republic, a right of pledge could be granted without transfer of the object to the creditor; later on, statutory liens with automatic priority in rank were introduced and in addition (non-possessory) general hypothecs over a whole property or parts of it gained considerable importance. Particularly during the 19th century, the deficiencies of the Roman law of real security were overemphasized ("eine wahre Pest", "etwas Fürchterliches").^[615] The absence of a secure mortgage of land may well have contributed towards the rise of latifundia in Italy: whoever wanted to invest in land had to buy; the small farmers, in turn, because of the unavailability of real credit, were often forced to sell.^[616] On the other hand, a desirable result was achieved in that at least free (i.e. largely unencumbered) ownership of land had been preserved.^[617] Now, in the wake of 19th-century liberal expansionism, the "freedom" was proclaimed to incur debts by way of mortgage loans. A refined and consolidated land register provided the basis for what was called "mobilization of land value".^[618] The consequence was that landed property soon became overcharged with debts. Before the First World War in Germany a total of 60 billion Marks was invested in mortgages, the sum total of the national wealth being less than 350 billion Marks.^[619] Also, as far as the right of pledge on moveable things was concerned, the 19th century saw a move away from Roman law: delivery of the pledge to the creditor was made a mandatory requirement in terms of § 1205 BGB.^[620] It did not take long, however, before what is effectively a non-possessory pledge slipped in again through the back door: the constitutum possessorium of § 930 BGB provided a convenient starting point for the "modern" lease back transactions ("Sicherungsubereig-ming").