Scope and Structure of this Book
The scope of this book is largely confined to the classical Roman law of the Principate.[19] Classical Roman law knew two forms of real security: pignus/ hypotheca and fiducia (cum creditore).
In this book, I have not been able to give fiducia the more elaborate treatment that I originally planned, although there are still many references to it. Also, a comparison with personal security (e.g., fideiussio) has been omitted, although again there will be occasional references to this form of security.[20] [21] In my contribution to the second volume of Roman Law and Economics the effectiveness of the Roman law of real security is discussed more elaborately than here (including publicity and its alternatives).2i The developments in post-classical law are (with a few exceptions) not discussed in this book: Deo volente they will be reviewed in future publications. In this book I concentrate on those issues which are directly concerned with its main theme: legal rules and institutions connected with pignus and hypotheca which find their origin in transactional practices.The first three chapters of this book lay the groundwork for a detailed account of the evolutionary history of pignus and hypotheca. In chapter 1 there are general observations on the co-evolution of Roman law and economy, with reference to social systems theory and socio-cultural evolution theory. Chapter 2 gives an outline of the specific institutional mechanisms for the evolution of Roman private law in the Principate, including the formulary procedure and the edictal system, and reviews the role of the jurists. Chapter 3 discusses the economic environment of the law of real security, in particular in the context of secured lending and the rental markets. The origins of pignus and fiducia and its remedies in the Republic will be discussed in chapter 4.
The evolutionary trajectories of pignus and hypotheca in the first two centuries ad will largely be charted in chapters 5 and 6, which map the evolution of pignus from a forfeiture pledge to a pledge enforceable by sale (chapter 5), as well as the evolution of hypotheca and its ancestors as a non-possessory pledge that could be granted nuda conventione (chapter 6). In subsequent chapters, dealing with the Nerva-Antonine age, we look at variants of the ‘contractual' pledge: multiple pledges (chapter 7), pignus nominis and antichresis (chapter 8), and the general pledge (chapter 9). In chapters 10 and 11 developments in the Severan age will be discussed, with a focus on the emergence and evolution of ‘pledge-like' preferential rights of the Roman treasury and publicity (chapter 10), and the execution of charged assets (chapter 11). Did the evolutionary trajectories mapped in the preceding chapters result in a law that was well-adapted to its economic environment and could it have contributed to economic growth in the Roman empire? In chapter 12 the outcome of the largely (but certainly not completely) spontaneous evolution of the Roman law of real security will be assessed. The order of this book is largely chronological, the chronology usually being determined by the time of origin of a new variant of pignus. The chronology will, however, not always be strictly maintained: on many occasions we will look forward to future developments, while discussions of the emergence of new variations will often be preceded by a brief glance back at their ancestors in the past.[22] [23]
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