Title Registries

Roman fiscal pledges were not registered in a public register. This increased the chance that ordinary creditors would be granted a pledge on property that was already charged to the treasury.

The same lack of publicity was inherent to conventional pledges. Certainly when it was accepted that non-possessory pledges could be granted nuda conventione, and later even by way of a general pledge, secured creditors could be confronted with earlier charges. In addition, the risk existed that debtors lacked the power to grant a pledge because they (whether or not fraudulently) charged property they did not own. There was no simple and reliable method available for a creditor in order to check whether the real estate offered by his debtor as security was owned by him and was without previous encumbrances. This was not compensated for by rules protecting bona fide third parties. In Roman Egypt a property registry for public and private entitlements did exist. In the western part of the Roman empire, there were criminal sanctions, social norms, and practices which would in many cases have prevented debtors from granting security over previously charged assets or assets they did not own. For a long time they may have been effective, although the late classical period shows symptoms of them malfunctioning.

Title registries in the Roman empire

In Egypt the Romans introduced in the first century ad a new registration system for the most valuable assets (real estate and slaves): the ‘archive of acquisitions' (βιβλιοθήκη ίγκτησεων).^[1194] In particular, one concern of the Romans was to prevent that dispositions were made of land, houses, and slaves by persons without title.^[1195] ^{^[1196] ^[1197] However, the archive also recorded security interests, so that potential purchasers or secured creditors could see whether the property had been previously charged?⁵ Von Woess and more recently Lerouxel have stressed the high quality and accessibility of the archive?⁶ Lerouxel even considers the creation of the archive a ‘pivotal moment' in the history of the private credit market in Roman Egypt, causing a ‘tremendous growth' in the number of secured loans and the amounts loaned out by private parties?⁷ The Romans must have been aware—in the first century ad — that the registry they created for Egypt had been very beneficial for the availability of credit.}

Is it too speculative to conclude from this that they would surely have set up similar registries in the city of Rome if their own law of real security was, because of lack of registries, so poorly adapted to the needs of the financial world? After all, the registration of charges of real estate was not a phenomenon completely unknown to Roman Italy?⁸ We have seen that in the Republic when citizens entered into certain contracts with the state treasury or with local municipalities, they might be required to grant a special security interest over real estate in favour of these bodies: subsignatio praediorum." This form of security was created by a special declaration of the owner of the estate (subsignatio), which was registered in the records of the state (tabulae publicae) or of the municipality (tabulae communes).¹⁰⁰ As Schulz observed, ‘whenever we cross the boundary of private law we enter a new world: we find documents, registration and publicity, phenomena which were entirely foreign to classical private law’?oi Another form of security granted over real estate to public bodies is recorded in the so-called tabulae alimentariae.¹⁰² In the second century ad the imperial treasury granted loans secured by a pledge over real estate, with the intention that the interest generated by these loans was for the benefit of children in need. The secured loans were recorded in a document containing the names of the borrowers, descriptions of the real estate, the amounts of the loans, and the rates of interest, all of which were stored in public archives."'·¹ For taxation purposes, registries of land in the census existed from the time of August.¹"⁴

A puzzling question is why the Romans did introduce a property registry for public and private entitlements in Egypt, but failed to do so in their home territory.™⁵ In Egypt the Romans built upon existing registration systems set up and operated under the Ptolemies?"⁶ The costs of building upon existing registration systems, including a body of professionals (notaries) experienced in executing and registering transaction documents, may be considerably lower than setting up an entirely new system?"⁷ Also the Romans' desire to get a grip on property and commercial relationships in their new province may have played a role, in particular with a view to taxation.

Another reason, however, is more of a cultural nature and may be that Roman citizens would consider it an unacceptable infringement upon their privacy if third parties could see whether their property had been charged for indebtedness?"⁸ In the republican period Tiberius Gracchus's attempt to set up land registries was never carried out to completion and (with other archives) were a ‘subject of

" See also section 10.2. For a comparison of the subsignatio praediorum and the archive of acquisitions, see Lerouxel 2016: 272-80.

i°° Crawford 1996: 302. i°i Schulz 1951: 412-13. ^W2 Criniti 1991.

i°³ Wenger 1953: 761-6.

i°⁴ That such registers could also be relevant in property disputes between private parties is demonstrated by Pap. D. 10.1.11, where it is observed that in boundary disputes, when there are no ‘old records' ("vetera monumenta"), one should follow the most recent registration by the tax authorities (census).

i°⁵ According to Arrunada 2020: 262, the costs of archiving should not have been a serious obstacle for creating property registries.

i°⁶ Von Woess 1924: 28.

i°7 Lerouxel 2012: 958 writes: "A lepoque romaine, l’Egypte est donc une grande terre de notariat et elle a atteint un haut degre de culture pratique de lecrit.

i°8 Von Woess 1924: 30. See also Moatti 2015: 128-31. For a different view, see Arrunada 2020: 268. antagonism and altercation’.^{^[1198]} ^{^[1199] ^[1200] ^[1201]} A lesser degree of social cohesion in Roman Egypt than in Rome may also provide (part of) the explanation. As will be discussed shortly, an important reason why no title registries were set up in Rome and why no principle protecting third parties in good faith evolved in Roman law is likely to have been that in the Republic and for much of the Principate social norms (e.g., amicitia) generally provided safeguards against a defrauding debtor who charged someone else’s property or failed to disclose an earlier charge.¹"' These social norms may not have been as stringently observed in Roman Egypt, where the population was largely non-Romand“

Registration of protopraxia and fiscal pledges

An edict promulgated in 68 ad by the prefect of Egypt, Tiberius Alexander, provides that the protopraxia can only be enforced against third parties (e.g., purchasers or pledge creditors) if the liability of the debtor’s patrimony vis-à- vis the state has been made known to the public.“² This could take place by public announcement, by entry into the treasury’s debtors’ register or by entry into the archive of acquisitions (βιβλιοθήκη εγκτησεων).

In other words, only those third parties who had been warned could be confronted with the state’s preferential rights.“³ Tiberius Alexander’s edict has been linked to a text by Ulpian.“⁴ The facts of the case discussed by this late classical jurist were that the treasury had succeeded in a claim which originally belonged to a private creditor. The question whether the treasury for this claim can exercise its privilegium is, as Ulpian lets us know, answered differently in rescripts. Ulpian himself is of the opinion that the fiscal privilege only applied from the moment at which the claim is registered in the debtors’ register. This in all likelihood was a register kept by the treasury in which (defaulting) debtors were registered and which must have been available for inspection by the public.^[1202] Before the claim transferred to the treasury, any purchaser from the debtor would acquire the purchased property free from the charge (unless it had been conventionally pledged to another creditor). This would be different, however, where at the time of the purchase the treasury was a ‘direct' creditor of the seller (e.g., taxes, loan by the treasury). Now all the seller's assets would be subject to a general charge arising by operation of law. This must already have adversely affected commercial intercourse. This would have become even more disrupted if the fiscal preference could also be enforced against third parties for claims which were originated by private creditors and had subsequently been acquired by the treasury, for instance through assignment or inheritance. It appears from Ulpian's opinion that in imperial rescripts different positions had been taken as to whether third parties should be protected. Ulpian's view is that they should be. His position entails that a prospective purchaser can inspect the treasury's debtors' register in order to examine whether the seller is a defaulting debtor of claims owed to the treasury. If the transferred claim is not entered into this register, the purchaser can be sure that the purchased property will not be charged with a fiscal charge on account of claims originated by private creditors which had transferred to the treasury.“^[1203]

Ulpian's opinion could point towards an influence of provincial law (Egypt) on the law of the empire (Reichsrecht).

It should be noted, however, that this protection of bona fide third parties does not apply to debts originated by the treasury itself (e.g., taxes, loans by the treasury). Unlike under Tiberius Alexander's edict for Roman Egypt, in the western part of the Roman empire publicity was not a general requirement for the third-party effect of fiscal pledges. There is, therefore, a sharp contrast between Tiberius Alexander's general concern that only those third parties who had been warned could be confronted with the state's preferential rights and the incidental protection of third parties in good faith in Ulpian's opinion.“⁷ In Roman Egypt publicity was adequately taken care of (in particular: registration in the archive of acquisitions), while in Rome publicity would only be relevant in marginal cases. Even for these marginal cases some imperial constitutions must have refused to protect third parties in good faith, as can be inferred from Ulpian's reference to differing rescripts. It is truly remarkable that where in Roman Egypt the public authorities were actively engaged with reforming the institutional framework through publicity measures in order to protect commercial and financial intercourse,^[1204] ^{^[1205] ^[1206] ^[1207] this was only of marginal significance for the western part of the Roman empire. Thus, a constitution by Caracalla from 215 ad implies that land sold (and conveyed) by a tax debtor after he had incurred a (contractual or tax debt) towards the treasury will be charged with a fiscal pledge and can be recovered from the purchaser. There is no mention at all that recovery by the treasury from purchasers of generally pledged property can only take place when the fiscal pledge has been made public.“⁹ Perhaps in the third century ad the financial position of the imperial treasury had become so predominant that it should prevail over the interests of commercial intercourse?²⁰ Alternative publicity; false wealth
In ancient Athens there was a practice of placing ‘mortgage stones' (horoi) on mortgaged real estate, indicating the name of the creditor and the amount secured by the mortgage.'2' Even this (simple) practice is not attested for Rome.
But this is not to say that Roman legal practice did not have other methods informing third parties or otherwise reducing the risk that secured creditors would be confronted with adverse claims by the real owner or another secured creditor. Thus in Rome creditors used the columna Maenia on the Forum in order to share information publicly on the solvency and behaviour of their debtors?²² Where a debtor charged someone else's property, or had failed to disclose already existing charges on newly pledged property, this information may very well have been posted on the columna Maenia. Certain types of pledge, in particular tenant's pledges of invecta et illata, were so common that prospective creditors and purchasers must have been aware of their existence?²³ For fiducia cum creditore, certainly, the mancipatio must have offered some compensation for the absence of title registries. The mancipatio required the presence of six Roman citizens: five witnesses and a sixth person, the libripens, who held a pair of scales. The large number of witnesses not only served to facilitate proof that the mancipatio had actually taken place, it also enhanced publicity in the preliminary stageTh⁴ The mancipatio may have served this publicity function well when Rome was a small agrarian community around the Palatine but must have lost much of its effectiveness when Rome developed into a much larger community with hundreds of thousands of inhabitants.^[1208] ^{^[1209] ^[1210] ^[1211] In the European codifications of the nineteenth century the main function of the creditor's possession was that of preventing ‘false wealth'?²⁶ By only allowing possessory pledges, which made it necessary that the pledged assets were removed from the debtor's physical control, situations were avoided in which other creditors would be disappointed where the assets present at the debtor's premises turned out to be charged to a bank or some other secured creditor. In other words, prospective creditors could be sure that the assets which were in possession of debtors were not charged with a security interest. It is unlikely that the desire to prevent false wealth was present with the Roman jurists. We do not find any reference to it in our sources. It is true that as long as a right of pledge could only be granted by a traditio to the creditor, any false appearance of wealth would be prevented (because pledged assets would be in the factual possession of the creditor). However, when granting hypotheca became common practice in the second century AD and false appearances of wealth could occur, the jurists show no concern at all for this. Even where a pledge had been granted as a possessory pledge, factual control was not required for the entire duration of the pledge, this in contrast with modern codifications.12⁷ Thus Julian D. 21.1.43.8 says that after his return to the debtor a slave will remain charged with the right of pledgeTh⁸
Oaths, infamia and stellionatus
The Campanian mancipationes all contain an express ‘title warranty'—by way of oath (‘iuravit’)—whose purport it is to guarantee that the security is validly created and first ranking. That title warranties were also used in relation to pignus appears from an opinion by Modestinus: ‘sua pignora esse quis in instrumento iuravit' (D. 47.20.4).i2⁹ This opinion by Modestinus could suggest that
these warranties in the form of oaths were included with a view to the crimen stellionatus.^[1212] ^{^[1213] It was only by the end of the second century ad that imperial constitutions stated that the fraudulent non-disclosure of earlier pledges should be criminally prosecuted, so that it is impossible that the oaths in the first-century documents were made with a view to this crimeThi Moreover, it appears from several other Digest fragments that the scope of the crimen is not confined to oaths. The mere fact that someone knowingly pledged someone else's property or property which had already been charged was sufficient to commit this crimed^[1214] In addition, where Gai. D. 20.1.15.2 refers to ‘the danger run by those who create multiple charges', the ‘danger' (periculum) referred to could not have been criminal liability for stellionatus. Before stellionatus became a crime at the end of the second century ad, this ‘danger' must have been that of being sued with the actio de dolo.^[1215] ^{^[1216] ^[1217] ^[1218] ^[1219] A condemnation on the basis of this action would lead to infamia. Particularly for Romans belonging to the higher social classes, infamia could have serious repercussions: it (inter alia) entailed the exclusion from important officesTh⁴ It can, therefore, reasonably be assumed that for a long time loss of credibility, civil liability, and infamia must have had a strong deterrent effect against pledging someone else's property or the failure to disclose already existing charges?³⁵ But by the end of the second century ad this deterrence apparently was no longer effective, since the fraudulent non-disclosure of earlier pledges came to be criminally prosecuted. The maximum punishment for the crimen stellionatus was severe: forced labour for plebeians and banishment or exclusion from their order for members of the higher classes.¹³'' It must be assumed that this criminal liability served to enhance security of transactions and that it took place in response to abuses that threatened commercial intercourse.^⁷ It must be doubted, however, whether these criminal sanctions were always an effective remedy to ensure a properly functioning law of secured credit.¹³⁸ The uncertain legal status of pledged assets, which, despite the newly introduced criminal sanction, apparently remained a problem, is likely to have contributed in the late classical period to the increasing practice of excluding liability for eviction in contracts entered into by creditors enforcing their rights of pledge by selling the pledged assets to third parties.¹'¹⁹ In that case the purchaser could sue the debtor with an adapted version of the action which a purchaser would normally have against the seller?⁴⁰ A creditor liable for eviction could assign to the purchaser his contractual action arising against the debtor under the pledge agreement. In both scenarios the purchaser could directly sue the debtor who had pledged someone else's property. This would, however, be of little benefit when the debtor was insolvent, and for this reason the possibility of eviction may have had a depressing effect on prices paid for pledged assets.^ From D. 13.7.22.4 it appears that in the late classical period it became a customary practice for creditors selling pledged property to enter into a stipulatio duplae with purchasers, thus promising twice the amount of the purchase price in the case of eviction. This may have had a positive effect on sales prices realized by creditors enforcing their pledge. At the same time this transactional practice increased risks for secured creditors, which may have resulted in increased interest rates for borrowers.¹'¹²}}
138 As Arrunada (2012: 51) observes with respect to the need to rely on criminal law: ‘the need to rely on such harsh mechanisms for enforcement provides a glimpse of the opportunity costs caused by lack of proper institutions for conveyancing land and securing credit’.
139 Pap. D. 21.2.68 pr.; Paul. D. 17.1.59.4. As with so many transactional practices, these clauses may have evolved into a rule of law. From Alex. C. 8.45.1 it appears that the secured creditor—whether a private creditor or the procurator of the fiscus—is not liable for eviction, unless he has expressly agreed otherwise.
1 ⁴⁰ Actio empti utilis: Tryph. D. 20.5.12.1.
141 Bürge 1979: 130-1. Liability for eviction could be a reliable alternative for the secured creditor when creditworthy third parties are liable, such as title insurers (Arrunada 2012: 51). I have not carried out extensive research on this, but although via a stipulatio orfideiussio (or other form of personal security) such liability was technically possible, I have found no evidence of an established Roman practice of title insurance.
142 In the classical period the stipulatio duplae was broadly used in the context of ordinary sale. In a number of fragments additional remedies are granted to the executing pledge creditor who entered into a stipulatio duplae: Pomp. D. 13.7.8.1 (right of retention); Ulp. D. 13.7.22.4; and Tryph. D. 13.7.23 (right of recourse against debtor). See also Ulp. D. 13.7.24: the creditor has an actio emptio utilis when evicted after impetratio dominii.}}

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Source: Verhagen Hendrik L.. Security and Credit in Roman Law: The Historical Evolution of Pignus and Hypotheca. Oxford University Press,2022. — 448 p.. 2022

Title Registries

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