Transactional Practices as Levers of Legal Evolution

What mechanisms exactly cause certain transactional practices to be trans­mitted more frequently than others? The research of Boyd and Richerson and others has shown that people's choices to prefer one cultural element over the other often follow certain identifiable patterns. The concept of what they call ‘biases' can be usefully applied to the transmission of legal variants in the form of transactional practices. Direct bias means that certain authorities function as ‘an information cost-saving device who have great influence on others' cultural beliefs', such as priests.33 This form of bias must have been instrumental for the evolution of Roman law. Certainly in the Republic private individuals would turn to the jurists in order to ask for advice on how to draft contracts, wills, and other legal transactions.

From express to implied term to statutory rule

One important economic function of the law is ‘to leave ultimate economic decisions to the parties, but to create institutions that clarify their choices, especially to default rules applicable when the express contract is silent/^[184] These supplemental (dispositive) rules will often lower transaction costs as they will not have to be negotiated by the parties.^{[185] [186] [187] [188] [189] Supplemental legal rules ideally reflect what economically rational parties would have agreed had they chosen to write their intentions down in their contract. This is precisely what happened in the Roman law of secured transactions: contractual clauses which were common practice at the beginning of the classical period evolved into (supplemental or mandatory) rules in late classical law. Certain pledge agreements may have become so typical in certain situations that in the absence of express wording they were deemed also to have been made/1 For urban tenancies tenant's pledges of invecta et illata were so common that they were deemed to have been tacitly agreed/2 In respect of invecta et illata brought into rural premises, however, an express agreement continued to be required.43 The reason for this may have been that the invecta et illata of a tenant farmer were too important to be impliedly pledged: the tenant's liveli­hood would depend on themTh Where the nature of the property, which was pledged in order to secure loans, entailed that it would be used and/or yielded fruit (living accommodation, slaves, agricultural land) and the cred­itor was granted possession of it, it would be presumed not only that the creditor would be entitled to use it but also that the value of the use or the fruit would be deducted from principal and/or interest/5}

The evolutionary sequence often is: (1) express agreement, (2) implied agreement, (3) legal rule. We can observe this in the evolution of the creditor's power of sale. The epigraphic sources show that in the first century ad express licences to sell were common (stage 1).^[190] Pomp. D. 13.7.5 appears to indicate that during Pomponiuss time (second century ad) the creditor was impliedly authorized to sell the property (stage 2)?^[191] For the third century ad Ulpian D. 13.7.4 makes clear that a licence to sell was no longer based on (express or implied) consent, but was inherent to the right of pledge (stage 3)?^[192] There is in many (if not all) legal systems a thin (and not always clear) line between implied agreements and supplemental rules of law which apply irre­spective of the parties' intentions. In Rome certainly, it is often impossible to distinguish between pacta tacita and dispositive rules of unwritten law?^[193] The ‘statutory' pledges arising by operation of law for the benefit of the imperial treasury have evolved from ‘tacit' pledges, which in their turn evolved from express contractual provisions on pledge.^{[194] [195] [196] [197] [198] In many cases, the construction adopted in the sources that general pledges were impliedly agreed with the fiscal debtor was a pure fiction.}

Hellenistic transactional practices

In the nineteenth century, Dernburg took the view that the use by the jurists of the Greek loan words hypotheca, hyperocha, and antichresis demonstrate a continuous influence of the Greek right of pledge on its Roman equivalent/¹ For a long time this position was very influential among Romanists, until scholars like Manigk brought forward that most jurists do not use these words borrowed from the Greek or use them only occasionally. It is therefore no longer thought that there was a pervasive influence of Greek law(s)/² However, it may not be a coincidence that in the Roman law of real security many expressions are derived from Greek/³ Rome's expansion into the Hellenistic economic world, with its highly differentiated business institu­tions, trade systems, and forms of credit, was the decisive factor for the evolution of the archaic, strictly Roman ius civile to a ‘world law' of the Mediterranean/'¹ Hellenistic influences rather concerned the imitation of business practices than the reception of Greek laws.^{[199] [200] [201] [202] [203] For all variants of pledge discussed in this book it has been suggested that they have Greek-Hellenistic ancestors: pledge of invecta et illata, multiple pledge, conventional general pledge, statutory general pledge, antichresis, conditional sale, and the ‘Gordian' lien.56}

Ideally this book would have contained more detailed comparative accounts of pignus, hypotheca, and security interests of other ancient laws. Nevertheless, on many occasions references are made to possible Greek- Hellenistic origins or influences on Roman law. The focus on classical Roman law also entails that any suggestion of how the Roman law of real security could have contributed to economic growth in the Roman empire must be qualified by the fact that Roman law did not apply to every credit transaction concluded within its boundaries, not even after the Constitutio Antoniniana of 212 ad.57 However, in the writings of jurists such as Scaevola and Marcianus we encounter rights of pledge which were granted over assets situ­ated in the eastern part of the Roman empire. Gaius and Marcianus even wrote monographs on the formula hypothecaria: their consistent use of the Greek loan word hypotheca(ria) may be explained by their connections with the eastern part of the Roman empire/⁸ From this part of the empire many papyri have survived, recording grantings of real security which were similar to those used in the Western empire/⁹ even where these documents were not governed by Roman law, they reflect transactional practices that were com­monly used throughout the Roman empire and which may have contributed to economic growth in the Roman empire in a manner similar to their Western counterparts.

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