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Security and Credit in Roman Law. The historical evolution of pignus and hypotheca.

Researcher

Prof. Rick Verhagen

Time frame

1 January 2016 – 19 October 2022

Project description

There is no other legal institution than pignus and hypotheca (pledge and hypothec) where the formative effect of legal practice can be so clearly observed. This research project examined the legal history of pignus and hypotheca in terms of an iterative relationship between transactional lawyers drafting legal transactions and Roman jurisprudence deploying its analytical skills in order to accommodate new transactional practices into the Roman legal system. The evolution of the Roman law of real security, well known through the legal sources (Justinian's Digest and Code), was reconstructed, while matching it with actual banking practices, in particular the secured lending transactions documented in the archive of the Sulpicii. In the late classical period the imperial chancery increasingly interfered with it in order to provide a considerable degree of protection to debtors. The (largely but certainly not completely) spontaneous evolution of Roman law produced a law of secured transactions which was highly sophisticated and versatile, allowing non-possessory security, multiple charges, pledges of receivables, antichretic pledges and even floating charges over a dynamic fund of assets. Since legal systems often adapt in reaction to impulses from their economic environment, the complexity of the Roman law of real security indicates that pignus and fiducia did play a significant role in the Roman economy. It was shown that this role was generally a positive one. Its main weaknesses were lack of publicity and the presence of fiscal charges: even these weaknesses did not undermine the effectiveness of secured transactions.

Keywords

Roman law, legal history, ancient history, Roman economy, law and economics, social/cultural evolution, secured transactions, mortgage, Roman banks

Results

Security and Credit in Roman Law. The Historical Evolution of Pignus and Hypotheca. Book in series Oxford Monographs on Roman Society and Law, Oxford University Press, published October 2022.

Contact,

Prof. dr. Rick Verhagen, rick.verhagen@ru.nl